ACS Law’s practice of sending out letters to alleged file sharers is ending
Written by Paul Bicknell on 26 January 2011« Return to Reading Room
Media C.A.T Limited -v- others (24 January 2011)
This hearing was held as a result of the adjournment from the hearing listed on 17 January 2011, the background to which can be read at:
The hearing on 24 January 2011 was to address: (1) whether, as a matter of law, the court has jurisdiction to strike out the Notices of Discontinuance as an abuse of process; (2) if so, whether jurisdiction should be exercised; and (3) whether the Claimant needs permission from the court to discontinue.
Summary of the submissions made on behalf of the Claimant
On the effect of CPR 38.2(3) it was submitted that:
1. CPR 38.2(3) provides that where there is more than one claimant, notice to discontinue cannot be served unless every other party to the proceedings agrees or the court gives permission.
2. Looking at the proceedings as they are, there is one claimant. If there is one claimant CPR 38.2(3) does not crystallise. Therefore, permission is not required from the court nor the copyright owner.
3. Following on from point 2, CPR 19.3 provides that where a claimant claims a remedy to which some other person is jointly entitled to that remedy, all persons jointly entitled to the remedy must be parties, unless the court orders otherwise. It was submitted that CPR 19.3 does not deal with notices of discontinuance; it deals with the addition and subtraction of parties. It was also submitted that such provision does not deal with case management nor does it purport to do so.
4. In relation to section 102 CDPA it was intimated that that section is a particular application of the general rule set out in CPR 19.3. In short it was submitted that section 102 CDPA and CPR 19.3 do not effect the court's powers nor does the same give the court powers it would not already have. The rules on discontinuance are set out in CPR 38 alone and remain untouched by section 102 CDPA and CPR 19.3.
The Judge put it to Counsel for the Claimant (with section 102 CDPA in mind): that at first sight it seems that the words: "proceed with the action" encompass the service of a notice of discontinuance and therefore it seems that in order to proceed with service of the notices of discontinuance the copyright owner should be joined as a party.
If the copyright owner is not joined it will not be fettered by CPR 38.2(c) and will not need permission and can then issue a claim by itself. The purpose of section 102 CDPA is protectionist it should protect a person or company from being sued again and again (as the case may be) on same or similar facts.
Counsel for the Claimant submitted that the court is not best placed to second guess future litigation and acts of future claimants. Counsel referred to CPR 38.7 which requires that a claimant who has discontinued must obtain court permission to re-issue against the same defendant who must have filed a defence in the original proceedings and the facts and matters of the new proceedings are the same or substantially similar as the previous proceedings.
Avoidance of judicial scrutiny
The Judge put it to Counsel for the Claimant as follows: "I am not happy, I will be absolutely straight here. I am getting the distinct impression that at every twist and turn there is a clear desire to avoid judicial scrutiny. There are thousands of these letters going out and only 27 claims...it's just mind boggling...".
After the adjournment Counsel for the Claimant read out a second Witness Statement of Andrew Crossley ("the Witness Statement") solicitor for the Claimant. On the point of avoidance of judicial scrutiny the Witness Statement reads:
"That suggestion could not be further from the truth. In relation to the Claimant (and indeed other clients I have acted for in this field) it has always been its intention to litigate. In relation to me and my firm, it has always been explained to the client that issuing proceedings was an integral part of the instructions received to identify and pursue infringements of copyright through file sharing. But for the fact that I have ceased conducting this type of work for reasons unrelated to the litigation, which I will detail below, it was my intention to continue to litigate...The 27 cases before the court were issued in a manner that upon reflection needed correcting, but I am and remain of the opinion that those cases were capable of remedy."
Summary of the Submissions made on behalf the Defendants
On the interplay between section 102 CDPA and CPR 38 the Defendants' Counsels looked more to the mischief of the rules than the literalist approach adopted by the Claimant's Counsel.
Drawing on Copinger and Skone James on Copyright at 15-16 which reads: "...the purpose of subsection 102(1) is to protect defendants from being sued by one claimant in separate actions. It seems likely, therefore, that a court will expect claimants to take considerable steps to identify other persons with rights before it will grant permission to proceed their being joined."
1. It was submitted that if the Claimant was allowed to discontinue without joining the copyright owner to the action then for those defendants who had filed defences no benefit from CPR 38.7 will be gained as against the copyright owner in a future claim.
2. The Claimant should not be allowed to rely on its own failure to comply with 102 CDPA and 19.3 as a reason to avoid the exception under CPR 38.2 (3)(c).
3. If CPR 38.2(3)(c) applies the court should not grant permission to discontinue because: (1) problems with service/pleadings are best dealt with by amendments to pleadings not discontinuance. (2) Claimant indicated that they would reissue. (3) Claimant has not submitted a legitimate reason for unconditional discontinuance. (4) litigants in person may not know the effect of discontinuance and be further confused if they are to reserve a subsequent claim. (5) it's a further waist of the court's resources to reissue.
On the point of setting aside notice of discontinuance as an abuse it was highlighted to the court that the Claimant's conduct had been woeful. Their conduct was submitted as misleading due to the glaring differences between Media C.A.T's relationship between the copyright owner as stated in the letter in contrast with that provided in their pleadings.
Counsels for the Defendants asked the court to either: (1) refuse to grant permission or refuse to permit the Claimant to discontinue and order a stay; or (2) give permission to or permit the discontinuance on the Claimant giving an undertaking that the same will not re-ssue.
Judgment was reserved to be handed down some time this week. In the interim the judge extended (bridged) his order given on 17 January 2011 until the point at which Judgment is given.
Counsel for the Claimant: Mr Tim Ludbrook instructed by ACS Law Solicitors
Counsel for five Defendants: Mr Francis Davey instructed by Lawdit Solicitors
Counsel for the three Defendants: Mr Guy Tritton instructed by Ralli Solicitors
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