Practice: Media CAT Ltd. v A and others Part 3
I mentioned this litigation on the 12 and 21 Dec 2010. In my latter case note I reported that the judge had found claims by Media CAT Ltd. against 27 defendants and listed them to come on before him on 17 January 2011. I advised those defendants to take legal advice and if possible appear by counsel and that is precisely what most of them did.
Shortly before the 17 the claimant's solicitor tried to discontinue the claims against the defendants and vacate the hearing making clear that he intended to reissue the proceedings. The judge appears to have raised of his own motion the question whether the court's permission would be required for discontinuance and asked whether any step could be taken in the litigation without the consent of the copyright owner. The defendants' counsel indicated that they would be seeking wasted costs against the claimant's solicitors. The only thing that saved those solicitors from being ordered to show cause there and then was that their counsel had not had an opportunity to respond to a wasted costs application. The application before the judge in Media CAT Ltd. v Adams and Others [2011] EWPCC 6 (8 Feb 2011) was whether Media CAT needed the permission of the court to discontinue.
His Honour held that Media CAT did indeed need his permission for two reasons. First, this was a step in a copyright action and s.102 of the Copyright Designs and Patents ACT 1988 requires the copyright owner to be joined to the action. Media CAT was not the copyright owner in any of the claims. The company that did own the copyright was not party to the proceedings. Secondly, the claimant's solicitors had told one of the defendants that it had won a similar action which was simply untrue. No satisfactory explanation was given for this untruth. The judge refused permission on the ground that the conduct of the claimant's solicitors was an abuse of the process of the court.
This is not the end of the saga. Though Media CAT has ceased to trade and its solicitors are to stop practising wasted costs orders have been sought. I shall report back when I have something to tell you.
Comments
In paras 53-57, the question is raised as to how they were able to get disclosure in the High Court on the footing that there was a prima facie case that the subscriber had personally conducted the alleged infringement, when the actual evidence is only capable of identifying a connection which could be shared by many people.
Not only have wasted costs been allowed for some of the case, but there has also been a s51 order joining ACS-Law/Andrew Crossley with the claimant for costs purposes.
PI insurance covers the former, but I wonder if it covers the latter