The draft letter
Justice Arnold provided a welcome insight in to what potential recipients of the threat of legal action can expect when the legal letter of claims lands on their mat.
The courts do not generally deal with pre action correspondence as they would expect a Solicitor to conduct himself correctly however due to the history of this (ACS etc) the Judge thought it appropriate.
As Arnold rightly said “the court needs to consider the impact of the letter of claim upon ordinary consumers who may not have access to specialised legal advice, who may be innocent of what is alleged against them and who may be embarrassed and/or distressed by being alleged to have been involved in file sharing involving pornography”. This is the key. If I am accused of downloading a file, a) its porn, so I am going to be a wee bit red faced if I have to tell my wife and b) a copyright solicitor will charge Â£500-1000 for an advice and provide no certainty so I am left with little option but to pay.
The Judge objected to the draft letter of claim as “objectionable” for the following reasons
1. Reference to the Code of Practice is inappropriate, because it was not designed for letters to ordinary consumers.
2. No reference to the fact that the court has not considered the allegations of infringement against the proposed defendant. Disclosure has been granted but no finding that the Defendant has actually committed any offence.
3. Unclear reference and inference to a third party authorising the use of the Internet. What is required is authorisation i.e. express authorisation that party x knew you were using your connection to download and approved such use.
4. The letter was too one sided and failed to deal with the consequences if the Claimant is unsuccessful.
5. Reference to “other intellectual property” unacceptable. No evidence of any other IP rights being infringed.
6. 28 days is more acceptable than 14 for the Defendant to seek legal advice.
7. No threats must be made as to contacting your ISP to slow your Internet connection down.
Crucially however the Judge reviewed the demand for monies. Here Â£700.00. He said the following
“In the draft letter no attempt is made to explain or justify this sum whatsoever. It is simply demanded “as compensation to GEIL for its losses….I agree ….that the figure of Â£700 is unsupportable. My reasons are as follows. First, the Claimants know that an unknown percentage of the Intended Defendants are not infringers at all. Intended Defendants who have not in fact committed any infringements are not liable to pay any sum. Secondly, in the case of those Intended Defendants who are infringers, the Claimants have no idea about the scale of the infringements committed by each infringer. Some might have infringed on a very substantial scale indeed, while others might only have infringed to a minor extent”.
However crucially and thankfully the Judge said the following:-
“.. it assumes that Â£700 will be successfully obtained from each of the 9000, when that is plainly wrong. In fact, it is likely that only a small proportion will result in a successfully obtained payment of any sum. This comes quite close to an admission that the figure of Â£700 has been selected so as to maximise the revenue obtained from the letters of claim, rather than as a realistic estimate of the damages recoverable by the relevant Claimant from each Intended Defendant.”
The Judge therefore stated that the Claimants were not justified in sending letters of claim to every Intended Defendant demanding the payment of Â£700. He suggested “In my view it would be acceptable for the Claimants to indicate that they are prepared to accept a lump sum in settlement of their claims, including the request for disclosure, but not to specify a figure in the initial letter. The settlement sum should be individually negotiated with each Intended Defendant”
So what do we make of this?
I did not think this type of litigation would be back on the agenda so quickly after the ACS Law/Media Cat scam. However it does seem that Ben Dover and his pals are intent on sending out the letters and subject to them putting their house in order over the draft letter it is expected to create the same media storm and client worry as the last time.
The good news is the Â£700 has been denied the Claimant and each Defendant will have to negotiate the payment of a sum individually. The bad news is many clients will not be able to stomach the round of correspondences and so will pay the porn men money in damages they may not be entitled to. Thereafter more Claimants will follow suit and off we go again.
Michael Coyle and Lawdit spent three years fighting Intended Defendants and represented over 600 clients in their battles with Davenport Lyons, and then ACS Law.