A bad day for ACS:Law (Update)
My days and nights have recently been taken up by trying to teach myself how to argue employment tribunals. My advice on that matter is to disregard anything you were told in legal process — from this end tribunals don’t look any simpler and less formal than courts. They’re still really, really hard. My biggest worry when I’m preparing for hearings is that I’m going to be so terribly bad that the client gets let down.
However it is reassuring to see that, no matter how poor my performance at tribunals is, someone else has done a scary job of missing several open goals at once.
I’m not going to be teaching many people who read this something new by saying that a default judgement is where the other side simply doesn’t respond. It’s just the claimant and the judge having a chat. This is why I don’t like secret trials for terrorism offences where the accused doesn’t get to defend themselves. The purpose of the defence is to make it hard for the prosecution because we know it’s easy to win if no one else is there. I consider it too easy to win a criminal trial if there is no defence, it will endanger the innocent and therefore we simply shouldn’t do it. I’m more pragmatic about default judgements in civil trials basically because no one goes to jail and you can, technically, take part if you want to.
Yup, it’s these folks again.
ACS:Law has been widely criticised for just sending threatening letters to people and taking the easy ones where the people just reply by return with a cheque. They always said that they would be happy to go to court over what they allege but they never actually did. This has now changed.
ACS:Law, acting on behalf of Media C.A.T, sought default judgements against 8 people who had failed to defend the claim. This is the nearest that litigation gets to shooting fish in barrels.
So, 8 for 8?
Eh, no. Anything but. The judge really made the claimant work for their judgement and pointed out several pretty fatal flaws (the claimant wasn’t actually the copyright owner, they wanted a novel interpretation of the statute that isn’t supported by authority, a number of civil procedure rules not complied with etc etc).
Particularly notable is this point of statutory interpretation: the court did not accept that Parliament meant to make people liable for unauthorised use of their WiFI under the 1988 act. The language is “authorises another to do” rather than “doesn’t do everything they can to stop it”. This is a first instance case but for what it’s worth unencrypted WiFi, as I think we pretty much all thought, doesn’t seem like a legal liability… yet.
All in all the wonderful news is, as long as the judiciary are vigilant, it appears to remain difficult to be lumped with a copyright infringement judgement on the basis of file-sharing allegations. Long may that continue.
H/T: Torrent Freak
Edit: The whole judgement is available on Bailii here.