Senior Judge ‘Astonished’ By Actions Of ACS:Law in File-Sharing Cases

Following on from our article detailing ACS:Law's no-show at the directions hearing for their 27 active file-sharing cases, today we take a closer look at yesterday's proceedings. Judge Birss QC said that he found ACS:Law's actions both "remarkable" and "unprecedented" and was "frankly astonished" by their behavior, while defense lawyers made serious allegations concerning ACS:Law's conduct.

Following a review of all outstanding active ACS:Law cases, last month Judge Birss QC found that a total of 27 had been filed, many of them displaying what he described as “unusual features”. In order to decide how to progress these cases he ordered a directions hearing to take place at the Patents County Court in London yesterday.

As detailed in TorrentFreak’s report last evening, things did not go well, with ACS:Law again managing to surprise even seasoned legal professionals with their behavior.

Today, with the help of consumer group BeingThreatened.com, who were present at yesterday’s hearing and have been supporting victims of ACS:Law predatory lawsuit activities, we look at what happened and where the cases go from here.

Late last week, ACS:Law business partner MediaCAT, the middle-man company who claim to have rights over dozens of movies, tried to pull the rug from under yesterday’s proceedings. Last Thursday, with only a single working day left to go, it wrote to the 27 file-sharing defendants informing them it would discontinue the cases against them.

The defendants, some of them prepared to head off to court on Monday, reasonably thought their case was now over and that they did not have to attend. However, thanks again to ACS:Law’s apparent misreading of the law, MediaCAT were actually not authorized to drop the claims without the court’s permission.

The problem lies in the strange fact that MediaCAT aren’t the copyright holders of the works they are using to extract payments out of file-sharers. Another company, the David Sullivan-owned Sheptonhurst Ltd is believed to be, but even that is yet to be proven.

It was at this point that confusion set in with MediaCAT’s counsel, Tim Ludbrook. The man-in-the-know, ACS:Law owner Andrew Crossley, wasn’t in court on the back of claims of a “family car accident” at the weekend and had simply ordered Ludbrook to seek an adjournment of proceedings. This is where events took yet another turn for the unusual.

While MediaCAT had indeed tried to discontinue the cases against the 27 alleged file-sharers, last Thursday ACS:Law told the court that they intended to refile them all at a later date, apparently after correcting the numerous errors that were present when they were originally filed.

Noting that five of the defendants had already filed defenses, Judge Birss QC said he was “astonished” at the refiling notion and described it as “unprecedented in his personal experience and career at the bar.”

At his discretion the Judge allowed one of the defendants to have his case discontinued but refused 26 others noting complaints that by filing and then discontinuing cases, Crossley had obtained an unfair advantage by seeing defenses.

Another allegation was levelled at Crossley in court by defense lawyers, one which raised eyebrows with Judge Birss QC. With reference to the earlier Solicitors Regulatory Authority investigation into his affairs, it was alleged that Andrew Crossley is “involved in a champertous agreement” in breach of the solicitors’ code of conduct.

The actual agreement between MediaCAT and Sheptonhurst was produced which showed, to the apparent surprise of the Judge, that ACS:Law is contracted to take 65% of the revenue and that rights to the movies in question had been allocated purely to prosecute and that no exploitable rights had been transferred.

Defense lawyers pushed for an order to force Andrew Crossley to file a defense against the champerty, code of conduct and civil procedure rule breaches. At this stage the Judge refused – the issue will be dealt with at a later hearing.

For MediaCAT, however, the situation they find themselves in with ACS:Law is nothing short of a mess. Lawyers representing some of the defendants are seeking ‘wasted costs’ “off the scale”, a reference to costs which are punitive and a reflection that there has been wrongdoing.

“MediaCAT’s attempt to discontinue all twenty-seven cases and pay costs to the defendants shows how fundamental ACS:Law now consider the problems in these claims,” said BeingThreatened.com spokesperson James Bench.

“It has been clear since the speculative invoicing scheme first made an unwelcome appearance in this country, that there were massive and fatal flaws in the model. It does not provide a solution to copyright infringement, it is apparent that the evidence is untrustworthy and the laws and precedent which ACS:Law believe underpin its work do not support their position. It is good news that Judge Birss has seen fit to put this practice under the spotlight and expose it for the unsupportable and flawed legal shambles it is”.

The Judge said that two further hearings are likely to be required. One to resolve the problems with the joining of the copyright owner, and another to discuss the procedural failings and decide on ‘wasted costs’.

The hearing in the remaining cases will recommence 24th January.

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