I was taking a company to court, I followed the advice of court service and filed the case in a particular claim track only for the court itself to throw out the claim that had been allotted to this particular track for want of jurisdiction. I should add that the court service put my claim on that particular track despite me specifying the correct one.

Before I could refile, the company in question has now wound itself up. The company is continuing to use the same website as the old company, and the same email addreses even though they are a completely new company legally.

Where do I stand?

What do you mean your case was thrown out for want of jurisdiction? I would have thought a case in the wrong track should simply be reallocated rather than dismissed and restarted.

The key consideration is to identify what assets the old company had and what happened to them. If it is simply a case of the old company's assets being transferred to the new company to avoid creditors, you could bring a claim against the new company on the basis of the fraudulent transfer provisions in the Insolvency Act 1986. There isn't much value in just a website so I think you'd have to identify an asset of more value.

The case was dismissed. The court service ignored what I wrote on the court forms, stuck it in the wrong track, and then the judge threw it out.

The company has over £120,000 of debts, but part of my case is actually seeking a ruling from the judge as to whether the company in question has crossed the criminal threshold in their behaviour - they are being sued for what is actually a crime.

I wasn't notified at any time about the voluntary insolvency of the company although it was clearly in the making, and I am obviously a creditor. The liquidator of the company has not been informed of this.

Amongst the issues are that the company has committed perjury in their filing of the defence of the case that was thrown out, plus sent me an awful lot of lies. The director has personally signed off on all of these knowing them to be untrue.

My point about the website/email is that the old stuff still works and they have simply changed the logo on the website. Are they allowed to continue to trade as a new company using an old website and email?

You will end up being disappointed if you are seeking a ruling on criminal matters. I suspect this might be why the judge threw the case out (not because it was on the wrong track). The civil courts do not have any jurisdiction to rule on whether or not someone has committed a crime. Furthermore, even if the director is successfully prosecuted for committing a crime that would not normally result in any compensation being paid to you.

If you want to proceed with this you have got to read and understand the relevant provisions of the Insolvency Act 1986. Insolvency is a highly technical area of law. If you are not able to point the judge towards the precise statutory provision you are relying on, your claim will fail. Remember that you cannot bring a claim and ask the judge to identify the relevant law for you - as the claimant it is your job to identify the relevant law which has been breached.

You need to understand that creditors do not have standing to bring the vast majority of claims. For example, wrongful trading and fraudulent trading claims can only be brought by the liquidator. They can't be brought by creditors.

One of the few exceptions to this general principle can be found at http://www.legislation.gov.uk/ukpga/1986/45/section/423. As you will see, in order to succeed using this you will need to try and identify some sort of specific fraudulent transaction.

I don't think there is any problem with a new company using the same website and email.

The judge threw it out because the court did not have jurisdiction. I was not seeking a direction from the judge on the case that was thrown out, I am seeking one on the case that I am trying now as a lot came out when they submitted various documents in the first case. Chancery court judges are perfectly capable of giving their opinion in this

I do not simply want compensation paid to me, I want actual justice to be done.

I am not the only victim, there's an awful lot more of us.

The defendant infringed copyright of myself and seven other photographers, removed watermarks form our images, passed off the images as their own. When contacted they wrongly claimed they had been supplied the images by various FTSE companies - one of which was preparing to bring its own case as a result of this wrongful claim when the defendant was wound up.

The defendant then signs an undertaking claiming it won't infringe the copyright any more and will remove the images.

The defendant fails to remove the images continues to infringe.

The defendant gets sued.

The defendant files a defence saying that they'd removed the images etc when they hadn't.

The defendant lies about the length of time that the images were used for and then attempts to destroy the evidence.

At every single step of the way, the MD signs off on this.

The thing is that the company was not under liquidation in the first case or anything like this, they failed to inform me so I couldn't object to it. The judge throws the case out thanks to the mistake made by HMCS who stuck the case on the small claims track when it shouldn't have been and then the company immediately goes into liquidation before I can refile claiming they expected no further legal action. I gave them no reason to suspect this. Their argument seems to be that the judge wiped the slate clean.

The actual legal advice I have here is that I should sue the directors personally, namely the MD, as he was personally aware of all the wrongdoing, failed to stop it...

I suppose my question is actually, am I creditor, and if so shouldn't I have been informed?

Chancery judges won't give an opinion on criminal matters. You would need to begin a private prosecution for this (not recommended).

The civil courts are only set up to provide compensation for any actual financial loss you have suffered. You won't get 'justice' in the sense you are referring to as they do not have the authority to punish people. Things like punitive or exemplary damages are incredibly rare and not available for a case like this. The other victims won't get taken into account.

Yes you should have been notified as a creditor but this requirement is very difficult to enforce in practice.

There may be grounds to have him disqualified from acting as a company director, but this would normally be something arranged by the liquidator making a report to the regulator. If you want to bring this kind of claim there are some very technical rules you need to follow about in which court you need to issue the claim - I don't think you can just issue a claim in the manner that you did previously. Also see https://www.gov.uk/complain-about-a-limited-company.

One option would be to have the company restored to the register, sue it, appoint your own insolvency practitioner and get them to take action. The other option would be to sue the director personally. However the options for having a legal basis to sue the director personally are extremely limited - there are very few options other than the legislation mentioned in my previous post.

Actually I have won dozens of cases where I have received exemplary damages. I have won every case I have ever fought, and every case I ever fought has yielded such damages. Other victims are taken into account when it comes to flagrancy, if you show that the defendant is a serial offender with a couldn't care less attitude the damages go up rapidly. A bit of legal advice on this matter -

Flagrancy and criminality – If the image was used by a business, where the infringer knew or ought to have known that the image was protected by copyright2, then they have committed a criminal offence3 punishable by up to two years in prison and/or a fine4. This is the criminal offence commonly known as “copyright theft”. It is distinct from the criminal offence known as “piracy”, which involves dealing in physical articles such as pirated DVD’s. Copyright theft is also a separate crime from, and should not be confused with, ‘theft’ within the meaning of the Theft Act 1968.

While photographers are not in the business of locking people up, and trying to prove a criminal offence is inherently unrewarding for a private individual, it should be hard for the infringer to argue that a copyright breach that would be a criminal offence is not flagrant. So, with a business infringer you should normally be claiming additional damages for flagrancy as a matter of course, and it is worth pointing out the criminal offence provisions to the court should the case get that far.

A friend of mine has recently won a test case doing this exact thing of suing the director in question. The law in question is -

"I accept that a defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer; he intends and procures and shares a common design that infringement shall take place "

To explain with a recent case the second defendant (the named director) is liable as a principal, not only for his own acts, but also for those of the company on the basis of both procurement and acting in concert with the company for a common purpose. Directors are personally liable if involved closely in the decision.

I'll be writing to the receiver then and saying that I wasn't notified. I've never had HMCS make this mistake before, and then have an infringer wind up the company.

My friend won his case, partly because the company he was suing was wound up whilst he was suing them. He used this as evidence that the directors were trying to evade justice. Impropriety pierces the corporate veil when linked to the use of the company structure to avoid or conceal liability - thus the winding up makes the directors personally liable. The company was, by the time I issued a court claim, a facade whilst the directors were trading with the new company. He has a hearing for damages in the next couple of days, and then it'll be on the news.

This is getting quite complicated. Is there a specific question we could help answer ?

The law is very clear that exemplary damages are available only in a small number of exceptional cases. There are very few reported cases in which exemplary damages are awarded. I am quite curious about the fact you say you have won 'dozens' of cases involving exemplary damages - exemplary damages is something even practising barristers don't come across very much.

Deliberate and repeated infringement of copyright is perhaps an example of a type of case where exemplary damages are appropriate. This is because it is a type of case where you can end with almost nothing as compensatory damages given the difficulty of proving actual financial loss.

You cannot expect the court to take into account other victims if they are not part of the claim and are not in court to give evidence. Please note that hearsay evidence (i.e. statements made outside of court to prove the truth of the matter herein) are generally not admissible as evidence, unless the person who made the statement is in court to give evidence under oath. If you refer to evidence/statements made by other victims who are not present in court as witnesses, then you need to serve a hearsay notice (unless you are in small claims track). Have a read of the CPR rule on this.

All the defendant has to do is carry out behaviour that is calculated to make a profit the exceeds the compensation payment. Given the profits estate agents make from copyright infringement in marketing prime property (particularly if they use your images exclusively) judges are very generous The law allows you to claim according to the benefit of the infringer. The infringer is in it up to their neck as they have removed your watermark, re-edited the pictures, removed the metadata from the images, ignored your Letter Before Claim, lied in their Defence etc etc.

And a friend of mine has just been awarded 10x his license fee in the form of exemplary damages after an infringer cloned his watermark out of the picture 37 times! he also asked for the opinion from the judge, who branded the behaviour of the defendant "reprehensible" and said it was "one of the most flagrant infringements he had ever seen". My friend armed with this, has an appointment with the City of London police later this week. Doubt they'll be able to claim it's a civil matter now

We have, of course, strayed far from the original question.