Media CAT File-sharing Judgment

In Media CAT v Adams & Ors [2011] EWPCC 6, His Honour Judge Birss QC has given judgment on a range of issues arising in the peer-to-peer file-sharing case brought on behalf of a number of copyright holders.  

The full judgment can be read here. It is a devastating condemnation of the conduct of the litigation. Media CAT, ACS: Law and Andrew Crossley (ACS Law’s principal) must have been sorely bruised by the judgment. Indeed, the battle seems to have wounded them very badly; it appears from the judgment that Media CAT has ceased trading as it has become insolvent and that ACS:Law closed permanently on 31st January 2011 and there will be no successor practice.

Although the main focus of the judgment is notices of discontinuance of proceedings, which the judge found to be an abuse of process, considerable doubt is again cast on the methods used to identify ‘offenders’ and concern is raised about the Norwich Pharmacal orders on which the proceedings were based. The comments of His Honour Judge Birss QC on the latter topic are no doubt of wide concern to IT lawyers. He states (at [112]-[113]:

I cannot imagine that the court making the Norwich Pharmacal orders in this case did so with a view to setting in train an exercise that was to be conducted in the manner that has subsequently emerged. In my judgment when a Norwich Pharmacal order is sought of the kind made in this case, it may well be worth considering how to manage the subsequent use of the identities disclosed. Perhaps consideration should be given to making a Group Litigation Order under CPR Part 19 from the outset and providing a mechanism for identifying tests cases at an early stage before a letter writing campaign begins. When Anton Piller (search and seizure) orders are made the practice is for a supervising solicitor who does not act for the claimant to be closely involved in order to ensure that the orders are not abused. The supervising solicitors are experienced practitioners. Perhaps a court asked for a Norwich Pharmacal order of the kind made here should consider requiring some similar form of supervision from an experienced neutral solicitor.

A party seeking a Norwich Pharmacal order in a case like this should also give serious consideration to s102 of the 1988 Act. Although s102(3) clearly provides that s102(1) does not affect the granting of interlocutory relief a Norwich Pharmacal order has some elements of final relief about it. After all the Norwich Pharmacal action comes to an end once the order is made. In any case just because the court has power to grant the relief without joining the copyright owner does not mean it must do so.

Further applications, including most prominently an application for wasted costs made on behalf of certain defendants, remain to be determined.

Deborah Prince, Which?’s head of legal, said:

“Which? has always believed that ACS Law had no justification for persecuting people on behalf of their client as illegal file sharers simply for owning an IP address. We’re delighted that Judge Birss has supported this view today. This is the latest stage in our long campaign on behalf of those unfairly accused of illegal file sharing. Many people have suffered enormous stress after receiving a ‘pay up or else’ letter and we hope this is the beginning of the end of such tactics.”