On the 18th of April, Judge Colin Birss QC authorised ACS:Law – the firm at the centre of criticism over the behaviour of businesses tackling illegal file-sharing – to be pursued for ‘wasted costs’ relating to legal action taken against alleged copyright infringers. The judge was scathing, adding that ACS’s owner and sole solicitor, Andrew Crossley, had ‘engaged in improper conduct that had brought the legal profession into disrepute’ in respect of over two dozen abandoned cases relating to BitTorrent users who were allegedly sharing films – in many cases, pornographic ones.
ACS:Law’s typical modus operandi had been to write to the owners of IP addresses identified as illegal file sharers with demands for cash settlements of about £500 to avoid being taken to court by Media CAT; a client of ACS:Law. It’s believed the action collected around £1.5m from people unwilling to take the matter before magistrates or further, although how much of that money found its way to the actual copyright owners is unclear. Some of the accused individuals approached by ACS did dispute the content of the letters they received from the solicitor and 27 cases were filed with the Patents County Court in London, contrary to suggestions that ACS was acting on such shaky legal ground that no action was ever likely to be brought against owners of the suspect IP addresses.
However, before the cases were expected to be heard, ACS attempted to abandon them in January this year, causing the same Judge Birss QC to describe the firm’s conduct as ‘remarkable’ and ‘unprecedented’, saying that he was “frankly astonished” by their behaviour – particularly that the Solicitors Code of Conduct may have been breached by the firm by it having entered into an – alleged – champertous agreement. On that occasion the court was told that ACS intended to refile the actions against the 27 named defendants after corrections to the case paperwork had been made. It was also suggested that by filing and then trying to withdraw cases, Crossley and ACS had attempted to obtain an unfair advantage by seeing the individuals’ proposed defences.
By this stage the defendants (now down to 26, with one case being rejected by the judge) had run up significant bills with their lawyers to build cases against ACS:Law’s accusations and it was Judge Birss’s opinion that ACS:Law and Media CAT could be pursued for that money, based on his considerations since the cases were formally dismissed on March the 16th.
According to Ralli Solicitors, a law firm representing several of the defendants, Birss explained to the court: “I am quite satisfied to the standard necessary for this stage of a wasted costs application that Mr Crossley is responsible for the Basic Agreements [the licence agreements between Media CAT and original copyright holders] and has thereby acted in breach of the Solicitors Rule 2.04… In my judgment the combination of Mr Crossley’s revenue sharing arrangements and his service of the Notices of Discontinuance serves to illustrate the dangers of such a revenue sharing arrangement and has, prima facie, brought the legal profession into disrepute. It may be better placed under the revenue sharing heading in this judgment but it is, prima facie, improper conduct in any event.”
Andrew Crossley came in for personal comment from Judge Birss, who called his conduct both “chaotic and lamentable” and “amateurish and slipshod.” Additionally, the judge had previously accused Media CAT and ACS:Law of doing everything they could “to avoid judicial scrutiny,” and added at the latest court hearing, “if ever there was a case of conduct out of the norm, it is this one.” The judge then ordered a full hearing to decide who’d be footing the legal bills.
Guy Tritton, a barrister acting for the alleged file-sharers, had called ACS:Law’s letters a “speculative invoicing” procedure and suggested that the two companies had wasted court time because they never intended to follow through with the trial. They had merely used the threat of legal action as a means to ‘squeeze’ money from those targeted in the letter campaign. Costs of over £100,000 have been suggested, with a single solicitor representing five of the original 27 accused saying his bill alone came to over £90,000.
Just who’ll end up paying is unclear as ACS:Law closed down on the 3rd of February this year following a spate of hacker attacks by Anonymous – a collective of online activists – threats of violence and ongoing investigations into Crossley’s conduct by the Solicitors Regulation Authority over the letters. Media CAT has also ceased trading, although a body – the non-legal GCB Ltd, run by two ex-employees of ACS:Law – has contacted the defendants with fresh letters. It’s possible solicitors’ insurance may end up covering the costs.
Mr Crossley’s application for permission to appeal was refused and this may not be the end of his woes. Ralli Solicitors’ Michael Forrester said his firm was planning to pursue claims for harassment against Mr Crossley, adding: “It can be incredibly upsetting for people to receive these letters and they may well have a claim in harassment, so I am urging them to come forward.”