ACS:Law - at last, a hearing

UPDATE: For professional reasons I won't be commenting on this case for the time being. Please feel free to continue to comment on this post, but don't feel insulted if I do not respond.

After my recent post on ACS:Law's failure to obtain default judgments in some of their claims. Another judgment Media C.A.T Limited v Alan Billington [2010] EWPCC 18 of the patents county court has been pointed out to me.

The facts of the particular case are not particularly crucial. The Defendant, an Aaron Billington, complains amongst other things that there is no "Alan Billington" and that he did not receive a "response pack" (which comes with the Claim Form and which includes a form for acknowledging service). Although he does not say so, there also seems to be a complaint that ACS:Law did not follow good pre-action practice.

What is interesting is that the judge reviewed cases pending before the court (27 in all) and has ordered that a hearing for directions be held at 10:30am on 17th January 2011. At the hearing the court can decide how the cases should be dealt with. Clearly if you are (or know someone who is) one of the defendants and there's a reasonable defence to the claim, or the sum claimed is larger than the claimant is entitled to, then it would be a very good idea to attend the hearing and have your (or their) voice heard.

Although courts do have a power to make orders on their own initiative, without being asked to do so by the parties, many courts do not seem to use this power as much as, perhaps, Lord Woolf envisaged when he created the civil procedure rules. The hearing proves to be interesting as it may give a much broader picture of how ACS:Law are progressing their cases and it may also help the court to tidy up what sounds (from the last judgment anyway) like something of a mess even from a purely technical perspective. Mildly good news I think.

ACS:Law come unstuck

Earlier this month ACS:Law suffered a set-back in their campaign against alleged copyright infringement through peer-to-peer file sharing. ACS:Law (or more pedantically, their clients) had tried to obtain judgments in default against 8 defendants, but failed for a variety of reasons in each case. The judge in the Patents County Court criticised the nature of their claim and the way in which the applications were brought — reported as Media C.A.T Limited v A (and others) [2010] EWPCC 17.

Default judgment is a speedy way for claimants to obtain judgment without a trial. In most cases a defendant served with a claim form and particulars of claim is supposed to acknowledge service and then file a defence. If not acknowledgement or defence is forthcoming the claimant can ask the court to give it judgment in default.

This is where ACS:Law start to come unstuck. In 3 of the cases a defence had been filed in court. So default judgment does not apply. In a further 3 of the cases there was no evidence on the court file that the claim form and particulars of claim had been served on the defendant. It is ordinarily the court's job to serve these documents, but there's no presumption that it has. In my practice I have come across situations where some administrative mistake has been made and the court has failed to do so. Whatever the reason, it is bad practice to issue requests for default judgment without checking with the court that no defence has been filed. A slap on the wrist for ACS:Law in my view. As the judge said "The requests for judgment should never have been filed."

There is an easy way and a not so easy way to ask the court for a default judgment. The easy way simply requires the claimant to file a request to the court. The defendant does not have to be informed of the request and will ordinarily know nothing about it. The not so easy way requires a formal application, with evidence, to the court, which must be served on the defendant, who will therefore have an opportunity to defend against it.

The "easy way" is only available where the claim is for one or more of: a specified amount of money, an amount of money to be decided by the court, delivery of goods where the claim form gives the defendant the alternative of paying their value (CPR 12.4). In each case, the claim was not only for damages for copyright infringement (including additional damages for flagrant infringement), interest and costs but also for:

"a permanent injunction pursuant to the inherent jurisdiction of the Court; ordering the defendant to take reasonable steps to safeguard their internet connection being used, either through the defendant's personal computer and/or third parties taking advantage of the defendant's unsecured wireless connection to repeat the infringement of the claimants copyright in the Work(s)."

Ooops. That doesn't appear to comply with CRP 12.4. The judge thought not. ACS:Law ought to have made a formal application rather than merely filed a request and that would have alerted the defendants to the possibility of default judgment and given them an opportunity to respond. The judge had serious doubts as to whether, in peer to peer file sharing cases, default judgment ought to be given on request without a formal application. He said:

In all these circumstances, a default judgment arrived at without notice by means of an essentially administrative procedure, even one restricted to a financial claim, seems to me to be capable of working real injustice.

Most interesting for me are the criticism that the judge made of the way in which the case was pleaded (one assumes by ACS:Law, but certainly on their behalf).

• The particulars of claim stated that the claimant "represents" the owner of copyright in the films that were the subject of the claim. Only the owner of the copyright or a licensee (and for a non-exclusive licensee only if certain conditions are met) has a right to sue for copyright infringement. Thus the pleadings were defective.
• The allegations relate to unsecured internet connections. It is unclear whether the owner of (say) an open wifi can be held responsible for copyright infringement effected using that connection.
• The claimant's plea was that the defendant was guilty of "allowing" copyright infringement, which, as the judge put it, "is simply wrong". The term used by the act is "authorising", which is rather different.

and more of the same. In short: even accepting all of ACS:Law's allegations, they do not appear to have a proper case. To succeed they would at least have to amend their claim, assuming they have a case at all.

A health warning: this decision is made by a county court. It is not, strictly speaking, binding on any future court. It does however illustrate the extremely dubious nature of the claims being put before the court by ACS:Law and will, I hope, encourage defendants to be more confident in resisting them. The list of defects in the pleadings might make a useful basis for an application to strike out against the claimant.

Hat tip to Philippe Bradley for pointing this case out to me.