12 December 2010

Practice: Media CAT Ltd. v A and others

In Media C.A.T. Ltd. v A and others [2010] EWPCC 17, His Honour Judge Birss QC had 8 requests for judgment. The particulars of claim in each case alleged that:
"The defendant, someone authorised by him to use his internet connection, or someone who gained access to the defendant's internet connection due to the router to that connections having no or no adequate security was at all material times a user of the peer-to-peer file sharing software known as BitTorrent 6.1.2 which allows the user to share digital media content files on a network with other users."

The relief sought in the requests for judgment included
"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)."
As the judge said, there is no authority in this country on whether there is a duty to secure an internet connection though His Honour did refer to the very recent decision of the Bundesgerichtshof in 1ZR 121/08 Sommer unseres Lebens that an internet user might be required to secure his router but was not liable for damages. Judge Birss also observed that the plea that the defendant had infringed copyright by allowing (as opposed to authorizing) infringement (presumably "allowing access to his wifi) was simply wrong in law.

This was not the only defect in the particulars of claim. The claimant's title was not pleaded. Neither, for that matter, was the subsistence of copyright in that there was no allegation of qualification under s.153 to s.156 of the Copyright, Designs and Patents Act 1988. The particulars were signed by a solicitor in the law firm ACS Law rather than by someone with actual knowledge of the facts. To cap it all the default procedure for money claims had been used instead of an application for judgment in default pursuant to CPR Part 23. And several of the defendants who were alleged to have been in default had actually filed defences.

So it was all a bit of a mullock as we say in this part of Yorkshire. The judge had no option but to throw out the claim. Moreover, he put it on record that he was not sorry to do so:
"The nature of the allegations made in the Particulars of Claim are such that it seems to me that it would be unfortunate if it were possible to obtain a default judgment without notice using the Request for Judgment procedure in rule 12.4(1) even if the claimant had abandoned all remedies save for the claim for an enquiry as to damages. The Request for Judgment procedure is an essentially administrative procedure and plays an important role in court procedure in the vast majority of cases in which it is used. However these are specialist intellectual property claims raising difficult and potentially controversial legal issues."
An application like this would have been thrown out by any court. But it is comforting to know that while His Honour Judge Birss QC is assiduously cutting costs, he is not cutting corners.

2 comments:

Anonymous said...

Given the way that this is evolving, I wonder what the word is for something that is far worse than a "mullock".

Anonymous said...

There has been a futher judgment.

This one runs to 35 pages of A4

http://www.bailii.org/ew/cases/EWPCC/2011/6.html