When The Judge Makes an Absurdly Wrong Ruling

[polarbear323]

Hello,

This is something which has been bothering me for three years. I'd greatly appreciate some feedback on the subject. On the face of it, this problem is crying out to be addressed, and I'll be taking my cue for any further action from the responses I receive from people on this forum who are, obviously, better versed in legal procedure and precedent than I am myself.

In 2016 I was involved in a dispute with a neighbor about a water leak to his premises, which was a tenanted barber shop. At the time I was aware that there was a water leak from my property to the property below me. But my neighbour was able to convince me to pay half the cost of fixing his water leak (which was subsequently found to be coming from my next-door neighbour’s patio.

The absentee neighbour (let’s call him Mr R, to protect the guilty) had asserted continuously that the leak had come from my property, had leached through the party wall into my neighbour’s property, then dropped down into the barbers shop.

However, two water engineer’s reports and a chartered surveyor’s survey all agreed that the leak to the barber shop was from my neighbour’s property and not mine. Two verbal statements from expert witnesses (the water engineer and the chartered surveyor) also expressed the opinion that the leak did not come from my property.

In order for the water to go from my property to the barbers shop it would have to flow uphill!

I then got the specialist water engineering company to repair the party wall which Mr R said was the agent of the leak. However, after this was repaired the water leak was as bad as before: the repair to the party wall had made no difference at all, which was entirely consisted with my case.

Therefore I asked Mr R for my money back. He refused.

But this was not a problem for me. After all, I had three expert surveys supporting my case. And the real clincher was that the repair to the wall which Mr R had said was to blame did not affect the leak at all. The court case

I prepared a carefully annotated Witness Statement. Everything was on my side: the evidence, the technical reports, the expert witnesses, the fact that the repair of the putative party wall had made no difference. This should have been a certainty and I was sure to get my £793 back from Mr R when the judge ruled in favour of my case.

Everything was in my favour. Two specialist water engineers concluded that the water leak was not from my property. A subsequent survey by the managing agents’ own surveyor came to the same conclusion. All expert witnesses concurred that the water leak did not originate from my property. I made sure that my Statement was clear and comprehensive in its treatment of the case.

But then the real trouble started.

The case was due to be heard at 10:00 in the morning and it was only heard at 12:00. The judge appeared to have arrived late and did not look prepared. She (again, no purpose will be served by revealing the judge’s identity, so I will simply refer to her as ‘the judge) looked a bit hurried and possibly slightly flustered.

It was apparent that she had not read my Statement, because the first thing she said was that we should have a survey done. (Had she read the Statement she would have read that we had had three surveys done.)

The judge did not allow me to play a video if the leak, and she did not appear to be interested in my evidence or my exhibits.

The judge dismissed my case.

I appealed, but the appeal was useless because I learned that I could only appeal if the judge’s behavior was outrageous or in some way unseemly.

Three years later, I still want justice. £793 plus three years at 8% statutory interest plus £500 for the considerable distress and anxiety (a total of £1,500). The problem is, nobody will touch this as it has already been misruled.

A few weeks ago I was again reminded of this injustice. I learned that the water leak had at last been repaired. In order to repair the leak no work was necessary to my property whatsoever. If my case had not been proven before, it was proven beyond all physical doubt now.

The problem is, of course, that the judge ruled against me, even though I was in the right. I could, and can, demonstrate that I was in the right in a dozen different ways. It was a mistrial.

Can I get this mistrial recognized? Can I have a retrial? Everyone deserves their Day in Court. But I have been denied mine because a judge was too indolent or too rushed to bother to read what the case was about.

I appealed against the original ruling, but my appeal was thrown out because (or so I was told) I could not demonstrate that the judge’s behavior was unacceptable. In other words, appeals against an actual decision are impossible, no matter how much that decision can be proved to be wrong IN MATERIAL FACT.

So what can I do to achieve justice?

[charitynjw]

Did you appeal, or was it a Judicial Review?

[polarbear323]

Did you appeal, or was it a Judicial Review?

I appealed against the original ruling.

But my appeal was thrown out because (or so I was told) I could not demonstrate that the judge’s behavior was unacceptable. In other words, appeals against an actual decision are impossible. Appeals are only successful if you can demonstrate that the judge's behaviour was appalling.

An appeal which shows (as a matter of structural certainty, in this case) that the judge's ruling was materially and factually incorrect cannot overturn that original incorrect verdict.

I think that needs restating. The more I read the sentence above the more I realise that the whole appeals process is not fit for purpose. What point is an appeal which shows that the original ruling was incorrect if it has no authority in law?

In the UK an incorrect ruling is still allowed to stand (even if it is known to be factually wrong) so long as the judge didn't misbehave.

[R0b]

A judge's behaviour and their decision of a case are not one and the same, unless you alleged bias. Appeals against decisions are not actually impossible in fact there are thousands of appeals that have been granted and you don't need to demonstrate the judge's behaviour is wrong in order to do so (either in fact or in law). Arguing that a judge was biased (or their behaviour not acceptable) to the extent that it affected their decision means there will always be a high bar to meet.

Equally, appeals made by a finding of fact are difficult to overcome because an appeal is not to conduct a revisit of the facts because the trial judge is in the best position on the day, unless that judge's decision was plainly wrong; time and time again appellate courts have made this clear. You might argue that the judge disregarded an important piece of evidence or that you may be able to argue that insufficient weight was giving to certain evidence.

Ultimately, the biggest problem you have is that you are 3 years out of time. If you wanted to appeal a decision (second appeal) then you should have done that at the relevant time. The fact that you have sat on it for this amount of time, I think a court would have no hesitation in dismissing any application.

I think it might be time to chalk this up to experience, take learnings from it and how you might be able to prepare better if such a case arose in the future.

[charitynjw]

http://www.civillitigationbrief.com/...nsion-of-time/

& that was after a 5 month delay.

[polarbear323]

The responses "unless that judge's decision was plainly wrong" and "the judge disregarded an important piece of evidence" are two telling statements.

The judge's decision was "plainly wrong". But it was not only wrong; it went against the evidence of two specialist water engineers and also a chartered surveyor's survey. (The specialist water engineer was actually engaged and employed by the opposing side! and still his evidence found in my favour.)

Also the fact that the party wall was repaired with absolutely no difference made to the water leak (which kind of dismisses the opposing claim that the party wall is responsible for the leak) - and this was a repair which was made before the court hearing and which was presented as part of my evidence, and the judge STILL dismissed it as having no bearing on the case!

The judge also dismissed the fact that the water would have to flow uphill in order to do what the opposition claimed was happening. For a judge to dismiss the Law of Gravity there has to be something amiss, I would have thought.

Diagrams, photos, videos, scale plans and site drawings, various things stated by expert witnesses on different occasions; the opinions of those who knew, the opinions of those who partly knew, and the opinions of those who had seen the leak and how it was positioned exactly below my neighbour's property, and not below mine....

There were many other pieces of individual evidence which supported my claim, which even taken by themselves would have made my case individually. But taken as a whole they are overwhelming.

(There are 34 pages of evidence in the document which the judge did not even read; I've given just a few examples here.)

But the real clincher was after the case was over. The water leak was repaired by repairing my neighbour's patio, not my own. I knew at the time that this would be how it would eventually pan out, as this was what 50 or 60 different bits of evidence pointed to.

THEN look what happens: my neighbour's patio is repaired and the water leak stops. It is quite clear that the one is contingent upon the other: the one is caused by the other, which is what all the evidence said from start to finish.

THAT was what the judge disagreed with. She disagreed with the physical facts of nature as it became obvious to everyone: she said - she insisted - that it was the thing it was NOT.

Having demonstrated that I was right all the way through I find it very difficult to simply forget about it.

The judge aggressively asserted what was so obviously wrong, and I am being asked to go along with it.

No.

Nobody in their right mind would say that that judgement was correct.

I was told that my appeal failed because I was not able to demonstrate that the judge misbehaved. The appeal did not even consider the weight of the evidence, because I was told that the only way I could overturn the verdict was by showing that the judge's behaviour was unruly or disgraceful. Clearly, as I was not able to demonstrate that the judge's behaviour was unruly or disgraceful my appeal failed. And that was WHY my appeal failed. I was told that the appeal could not be made according to the weight of the evidence (which was massively in favour of my case) and that my appeal was therefore bound to fail.

Therefore we need a system whereby an appeal can be made according to the weight of the evidence. Simply that. Such an appeal was and is not possible. I argue that such a situation is wrong and deserves to be changed for something which is correct, rather than something which is incorrect.

[R0b]

But any appeal regarding the weight of evidence would be an appeal on the facts. If you appealed on the basis of the judges behaviour then a court will only look at that and nothing else.

Therefore on the issue of whether the judges behaviour was not acceptable your appeal was dismissed.

Who said you could only appeal based on the judges behaviour? Any reasonably qualified lawyer who looked at the evidence and saw that the judge went against every part of it would think to appeal based on the facts, particularly if as you say the judge disregarded entirely the expert witnesses. To do that, a judge would have to back up their reasoning.

if you dont want to accept the judges decision then you only have one option which is to make an application to the Court of Appeal. As I said though, sitting on it for 3 years means you are well put of time and unless theres exceptional circumstances, i dont think you are going to get very far.

[polarbear323]

Perhaps I haven't made myself clear.

I was told by the appeal process that an appeal could ONLY be made on the subject of the judge's behaviour (i.e. if this was very erratic, violent, drunken, etc.)

I was told that there was no other basis for an appeal. I was told that no appeal could be made on the basis that the judge's ruling was factually incorrect.

If you are now saying that the basis of this appeal is itself incorrect (as you seem to be saying) then presumably the appeal process that I was subjected to was itself in error.

If that is the case then surely I can have another appeal, whether or not it is three years later, as I have only just found out about this, and was wrongly informed previously (when it mattered!) prior to the appeal process.

I also, presumably, have redress against the people and/or system which told me such nonsense as well.

[charitynjw]

Just as an aside

A friend of mine was taken to court, & he properly filed a defence, witness statement etc.
He also filed a counterclaim.
I was a McKenzie Friend.

Come the hearing, we quickly realised that we had the misfortune of encountering the judge from hell.

We won the claim, but the judge didn't even mention the cc.
Believe me, we were so shellshocked by his demeanour, we didn't dare mention the fact!

Anyway, my friend then emailed the court to find out where he stood re the cc. (Bearing in mind it cost £25)

3 years later, & many emails to court, he is still awaiting a sensible response.

If this had been any other service agreement, my friend would have had them in court ages ago!

[polarbear323]

Yes indeed. It makes you wonder. It seems that when it comes to justice we become something less than consumers. Why is that, I wonder?

You see also how difficult it is to put my case across. People automatically think that I can't be right; surely such a thing couldn't happen. Not in this country. I have to explain everything three or four times to counterbalance the incredulity inertia.

[polarbear323]

But I digress.

I'd still like my Day in Court. It seems, from what you've written, that I need to appeal against the case. But this time I need to be able to appeal properly, and not get the kind of appeal which only takes into consideration a judge's behaviour and not her attitude to facts and figures, bearing in mind that the judge did not even allow me to show the video of the water leak, or show her the diagrams of how the water leak would have to flow uphill, and the findings of the three surveys were ignored (after the judge recommended that we "get a survey done" - but that was only because she hadn't bothered to read the Witness statement, wherein the three surveys were cited).

You mentioned that it cost £25. Was that for the appeal? Will I have to appeal against the appeal?

It seems that I was particularly badly short-changed as I had the misfortune of a dodgy judge followed by an even dodgier appeal board.

Is there ANYWHERE that I can get justice here?

That's all I ask. Just as much justice as the next person. I don't want more than that; it just seems that I'm having to SHOUT for it because it seems to be hiding from me!

[R0b]

There is no such thing as the appeals board, and when you refer to being advised by the appeals process there is no such thing either, but I assume you mean the court staff in which case court staff do not give legal advice and I very much doubt you could rely on that.

The Civil Procedure Rules govern legal proceedings and the procedures, including the appeals procedure. It is well documented that litigants in person are not afforded special treatment nor are they treated any differently to qualified lawyers when it comes to court claims.

If you feel there has been an injustice and want to overturn that, all I can suggest is you make an application to the Court of Appeal, as a second appeal. The relevant fee is £528 to file a notice to appeal for permission and assuming permission granted, a further £1,199.00 to be paid when filing the appeal questionnaire.

If you want justice, that's your route. If you don't go down this route, then you can kick, scream, complain etc. but it won't get you the justice you want. There's a strict process to be followed and you can't deviate outside those lines.

Also, I'm not sure why there is a need to put certain words in block capitals, I don't think it's necessary.

[polarbear323]

I did not seek legal advice from the court staff. There were two points at which I phoned up the court (in fact that phone number connected with a call centre in Leicestershire, and not my local court for which the number was published) and I asked if I would be allowed to show video evidence. I was told that I could. In fact during the case itself the judge forbade me from showing the evidence (even though the means to do so was readily available on the desk) The other occasion was also on a matter of procedure and I asked if I would be allowed to send a PDF as part of my appeal (and I was told that I could). Again, this turned out to be false; I was told that my PDF was invalid because it could not be signed.

There were so many points at which I was denied justice that it is difficult to enumerate them all.

I have only latterly started to put words in block capitals. It must be an indication of the frustration at not being able to explain that THE JUDGE RULED THAT WATER FLOWS UPHILL and not being believed. The judge's ruling was so absurd that nobody is inclined to believe me on the first telling. It seems that I am doomed to tell it about four of five times, then get directed elsewhere.

I believe that this would be a very meaty case for a lawyer to fight. The Mr R in question owns a successful food and vegetable wholesale business and is both cash and asset rich. The fact of the case speak for themselves. I just don't have the money for the appeal process.

Thank you for your help.

[R0b]

Nothing you've said changes what I've said in my last post; the rules are there to be adhered to and if not complied with then you are going to have issues. If you think your case is a meaty one and has good prospects of an appeal then any sensible lawyer would consider taking on your case but the fact remains that you are 3 years out of time and you can't pick and choose when you want to appeal your claim. That is likely to be your stumbling block even if you can get a lawyer on board.

Since I've explained your options, there's nothing more I can really add to this. You need to do something about it and make inquiries with solicitors or just write it off as an experience and be better prepared next time.

[polarbear323]

Actually, this is quite a good case for any lawyer who is interested in seeing justice done and who is willing to give it an extra push.

The case itself is easily won (as long as I get a judge who understand what gravity is can add and subtract and is prone to bouts of reason).

And Mr R is awash with money, so the lawyer on my case can wish himself a figure and apply a decent multiple to it (taking into account that I cannot afford the near £2,000 to take this to the re-appeal), and as long as the judge is as aforesaid, can collect oodles of cash from Mr R for a case which is impossible to argue against.

Interested parties can PM me and look forward to a nice payday. Thank you.