Can I Mark My Recent Trial as a Mis-trial?

[entseo]

Hello!

Yesterday I had my day in court. I had been waiting for months. I had spent countless hours crafting my witness statement. It was against someone who persuaded me that a water leak was coming from my property, so I paid him 50% of the cost of repair based on that assumption.

Then a survey discovered a new source of the water leak directly over the offending leak. Repair of a party wall did not stop the leak which further confirmed that the leak did not come from my property.

Now I knew that I was not liable for the costs, so I asked for my money back (about £800). But the defendant (an elderly fellow) said that because the leak was from the party wall (which it wasn't) he was not going to give me my money back.

So the case was heard yesterday. The judge was two hours late. When she turned up it was clear from the questions she asked that she had not even read my witness statement. She did not recognize the defendant's witness statement as being a witness statement. I was unable to show crucial evidence of a video of the leak as she told me there was nowhere to plug in my USB memory stick (in fact the court's telephone helpline person had told me weeks earlier, when I was drafting the witness statement and carefully preparing my evidence that the court would be up to speed on new technology and I would have no problem with showing my evidence in whatever format it came). The judge made no attempt to find a USB socket in the whole court building. I asked her if I could, in that case, describe the video to her. She said that would be pointless as she was not an engineer.

The judge said that we should both (claimant and defendant) club together and pay for a surveyor's report. Had she read my witness statement she would have seen that we had already conducted three separate structural reports which had confirmed that the party wall was not the source of the leak, and that the leak was from my neighbour's property, which was directly above the leak. A few minutes later she was back insisting that we should get a full report done, and I had to remind her again that we had already had the results of three reports.

She asked me several questions about things which were not in contention. In particular she asked me repeatedly why I hadn't asked for a refund from the engineer (I told her that I had not hired him, the defendant had, and that I had given my money to the defendant who had given it in turn to the engineer; it was the defendant who had asked for his money back when it was discovered that the party wall was not the source of the leak but had been repaired nevertheless). Despite answering her, the judge insisted I had not answered her question and asked me again three times over, each time saying that I hadn't answered her.

Oddly, she said it was good of me to admit that the defendant had paid the money to the engineer (this point was never in contention; there was never any question that he had paid the engineer).

I provided in my witness statement references to a 34 page document which listed the contents of all relevant emails of that time and related to that episode, all cross referenced, double-checked, and everything I had made as transparent as possible to avoid any doubt about anything. But one paragraph mentioned the repair of the party wall. The judge asked me where the reference to that email was. I said there was no reference to an email; it was a reference to an event which had happened on that date - the repair of the party wall - which was a central event in the whole case so I felt it was important to mention it!

In the end, after having convinced both the judge and the defendant that the party wall was not to blame, therefore I had had no need to pay the defendant as the leak was not coming from my property, the judge came to her ruling.

She ruled that my claim was dismissed on the grounds that the engineer had done a bad job of work, so he was the real culprit. (Bizarrely, she spoke the word "dismissed" in such low tones that I had to ask her to repeat what she had just said; it was as if she knew she had said something wrong.)

So I wasn't getting my money back because a third party's work had been shoddy.

How was that justice? How was that logic? It was clear that the judge had no idea what the case was even about.

The judge said I could appeal against her ruling. But I don't regard this as a fair trial in any case, so I'm not sure what I would be appealing against. Instead I regard this as a mis-trial. As I slowly walked away from the court building I "deconstructed" the whole thing, and it became obvious to me that the whole thing had been a farce.

So how do I get this trial designated as a mis-trial, and how do I get a retrial with a different judge?

Any thoughts would be most welcome; I am still reeling from this judgment.

[Amethyst]

Re: Can I Mark My Recent Trial as a Mis-trial?

You could consider an appeal - to do this you would need to apply within 21 days and should get a transcript of the hearing asap. Is the total amount the case is over the £800? You'll need to work out whether the costs are worth the fight, and whether the gentleman you are claiming against has the means to make the payment. Appealing isn't an area I am familiar with so hopefully someone else will look in.

I'm not sure I understand the issue with the engineer - should he maybe be a joint defendant? Did he cause the second leak while fixing the first leak ? It sounds a little like the Judge dismissed the claim as she considered it should be against the Engineer as opposed to your neighbour. You mentioned he had asked the engineer for a refund ? Did he receive this ?

[entseo]

Re: Can I Mark My Recent Trial as a Mis-trial?

Thanks for your reply, Amethyst. To get a transcript of the hearing this assumes that the hearing was recorded. I didn't know that hearings were recorded. Is this the norm? I assume I should just ask the court for this recording, then get it transcribed, is that right?

The engineer was hired by the defendant and he seemed to be a highly professional person who certainly seemed well qualified. He used very specialized equipment which I had never heard of and seemed to me to be very good. My case was never against him, but against the defendant who took half the money for the repairs from me (even though it was proved that the leak was not coming from my property). It seems the judge decided that the engineer should have been the defendant, but that is surely not for the judge to say, as it was the defendant who took my money. The leak was causing damage to the defendant's property, not mine.

The engineer did not cause the second leak. The second leak was discovered by the engineer during his survey; in fact it was this "second" leak which had been responsible for the leak to the defendant's property all along. It was just that no-one knew of the leak: the only leak known about at the time was the leak from my patio into the property below (not owned by the defendant - the defendant owned the property below my next door neighbour), and thus it was assumed, even by me, that this leak was somehow leaching through the party wall to collect above the defendant's property and then drop into it (although the water would have had to, er, climb uphill in order to do that). But then the party wall was repaired, yet the leak continued as before at the very next fall of rain - thus exonerating the party wall.

The engineer said that his guarantee was null and void for reasons which seem valid; therefore he will not reimburse the defendant.

The engineer's work did stop the leak for about six months, but then wear and tear took over and the leak resumed, so I believe the engineer was correct in stating that this wear and tear and lack of care and maintenance voided his guarantee.

But my quarrel was never with the engineer. The defendant now knows about the second leak and he also knows about the repair of the party wall and its subsequent exoneration; however the defendant is still in denial about this and he still insists it is the party wall which is causing the leak despite three separate surveys which show the contrary and identify the latterly discovered leak from my neighbour's patio as the culprit.

Can the judge dismiss a perfectly good claim on the basis that she disagrees who the defendant should have been?

Bearing in mind that she had not read the witness statement and had a totally skewed view of the case, this seems a very strange thing for a judge to be able to get away with.

I was denied getting my money back because of the third party engineer's poor work? Surely not.

[entseo]

Re: Can I Mark My Recent Trial as a Mis-trial?

The judge did not read my witness statement. Also I was refused permission to show video evidence of the leak itself which would have proved that it was coming directly from above and not from the side.

Isn't refusal to show evidence by a judge illegal? Isn't it illegal for a judge to pretend they've read a witness statement when they have not?

Iwould have thought these things were central to the law and to jurisprudence fundamentally.