photo use copyright issue case 3 - Defendant applies to set judgment aside

[miteaide]

Are you saying should you settle? You could send a without prejudice email/letter suggesting a settlement figure.

 

FYI, I'd make sure the claim is allocated to small claims track before the defendant also submits an application for strike out and or summary judgement, hitting you with £thousands in costs.

 

Since they are a corporation, its probable that they will have won against many people in your circumstances before.

From your 147 case experience, you should know that 'ambush them in court' means confronting their agent, a confused newly qualified junior barrister who got the case on the previous night.

 

Readers to this thread should also know that set-aside for default judgements is basically a right rather than a process. As long as you fill in the Application form correctly, pay the fee and write something that looks like a defence.

Edited July 2, 2017 by miteaide

[schwepppes33]

Just to bump this up further -

"I believe you may have misunderstood my client’s intent and my email of 27th June. It is not denied that someone called XXXXXXX appears to have the copyright to the photographs in question and has the right to make a claim. But what my client would not want to do would be to make a payment to someone claiming to be that XXXXXXXX who is not in fact the person with the copyright ownership. Our ID request is simply a physical check on a claim made in the virtual environment.

 

The simplest way for my client to be certain that this is a genuine claim (i.e. by the correct person, not in the sense that that person owns the copyright) would be for you to pop into my client’s office with the ID requested.

 

The reason for requesting bank details was to enable a bank transfer to be made once adequate ID has been provided and my client is satisfied that this is a genuine claimant."

 

So their excuses have now changed and they like to infer now it is not a genuine claim.

[schwepppes33]

The claim was never put on track. They never filed a defence so it could never be allocated. They simply didn't file a defence and I got fed up waiting so applied for a judgment.

 

They are attempting to strike out the claim, and then have a hearing for damages and say that I should pay back most of the default judgment.

 

They are trying to set aside the judgment on the basis that they want to defend the case.

 

The judgment is substantially less than that which I secured in open court in February in a very similar case.

 

I agree they are probably quite used to doing this, of ignoring legal letters, ignoring cases, and then trying to bully people after the event. It's an abuse of process really. Given they continue to infringe my copyright, their behaviour borders on the criminal.

[renegadeimp]

I'd just file the claim. ID will be proven when you turn up in court.

[schwepppes33]

Yeah I tried one more time with an email... pointing out section 104 of the Copyright Act. It's on my website which is registered publicly with my name and address, with my name and email address embedded in the images, the originals on my hard drive, and as such I am presumed by the act to be the author of the work unless the contrary is proven and it does use the word "proven".

 

I've also offered to meet them for ADR and they refused.

 

I am shocked that they continue to say I should send them my bank details too - something I hadn't made reference to at all in my previous correspondence with them. The ICO says you should never do this (nor show anyone your passport except in very limited circumstances as it has your date of birth on it), and yet they want me to send them financial details via a plain text email, all whilst casting aspersions about my own identity. Utterly mad for a major company to have their lawyer try to insist on this.

 

Next step will indeed be filing proceedings. All of this is important actually as even on the small claims track I use unreasonable behaviour of defendants to claim costs. I like getting paid the litigant in person rate for costs and none of these emails they have sent me have been without prejudice

[BazzaS]

none of these emails they have sent me have been without prejudice

 

I'm not sure it would make much difference (at least regarding costs - which is what you were referring to) if they had been so marked. ....

 

If they said they were "without prejudice" it is likely a court would view them as "without prejudice save as to costs", so they can't be used when deciding who to find in favour of, but the court can consider them once the court had reached its verdict, when considering costs.

 

They might want the court to ignore the communication when considering costs (claiming it should not influence the costs assessment), but the court can consider the totality of the party's behaviour : they can't escape this by claiming the communication was "without prejudice".

[renegadeimp]

File the claim and let them panic. They obviously think theyre in control despite them stealing your work.

 

But before you do, demand they send a cheque to you, or a claim will be filed. They do not need any ID for this. They can send the cheque to the registered contact on your site/Company house listing.

 

No cheque within 7-14 days means full claim filed immediately without further notice.

 

That will show you have done everything possible to get them to cooperate and theyre doing everything to avoid it.

[Ganymede]

File the claim and let them panic. They obviously think theyre in control despite them stealing your work.

 

But before you do, demand they send a cheque to you, or a claim will be filed. They do not need any ID for this. They can send the cheque to the registered contact on your site/Company house listing.

 

No cheque within 7-14 days means full claim filed immediately without further notice.

 

That will show you have done everything possible to get them to cooperate and theyre doing everything to avoid it.

 

Spot on.

[schwepppes33]

File the claim and let them panic. They obviously think theyre in control despite them stealing your work.

 

But before you do, demand they send a cheque to you, or a claim will be filed. They do not need any ID for this. They can send the cheque to the registered contact on your site/Company house listing.

 

No cheque within 7-14 days means full claim filed immediately without further notice.

 

That will show you have done everything possible to get them to cooperate and theyre doing everything to avoid it.

 

That's a really good idea. Thanks! And of course it can be sent by registered post/special delivery/whatever.

[renegadeimp]

Exactly. Its basically calling their bluff. They want you to prove you match the person on your site/CH listing....... Why bother when you can simply say " Send the cheque for the full amount to the companies registered address and for you to have full cleared funds in your account to from it within 14 days, or a full claim will be filed for the amount PLUS costs.

 

The company and their solicitor sounds totally inept. let them suffer for it.

 

If they insist on pushing their luck, just remind them of what a copyright and trademark lawsuit would cost them.

[miteaide]

The claim was never put on track. They never filed a defence so it could never be allocated.

 

Exactly my point.

Litigants in person are partially unaware, especially using MCOL.

 

 

The period between instigating a claim and allocation after submission of the directions questionnaire, you're not on the small claims track and are subject to costs.

See CPR 24 and CPR 3A, para 5.1 stating practice direction 23A.

 

How it normally works against them who know the system is a LIP will issue a N1 claim to the defendant.

 

Amalgamated incorporated acknowledge service and says they will defend.

They issue a short defence and make application for strike out and/or summary judgement.

 

 

HMCTS will send the case off to the relevant court venue who will arrange a hearing about 2 weeks after that.

 

 

The defendant will issue witness statements, skeleton arguments and full defence a day before the hearing. The LIP has then got their work cut out.

[BazzaS]

Readers to this thread should also know that set-aside for default judgements is basically a right rather than a process. As long as you fill in the Application form correctly, pay the fee and write something that looks like a defence.

 

I disagree.

There are grounds for a set-aside which are mandatory, and those which are discretionary.

 

If a default judgment was correctly applied for, there was no unfairness (such as filing to a previous address knowing the defendant had moved), removing the defendants ability to apply for a mandatory set aside : then a discretionary set-aside is just that - discretionary.

 

If a claimant had done nothing wrong, had correctly sought and obtained a default judgment correctly against a corporate defendant who then failed to make an application for a discretionary set-aside 'promptly': the set-aside application is by no means certain to succeed.

[schwepppes33]

^ Quite so. And i have successfully resisted every time in the past, except where the Defendant has offered me more money than the judgment.

 

Fact is I sent a letter of claim which was ignored.

I sent a follow up letter which was ignored.

I filed proceedings and they filed an acknowledgement.

They made no offer and said they would defend the case in its entirety.

After two months they still hadn't filed a defence.

They failed to communicate with me at all.

I applied for a default judgment.

Now they want to have the claim struck out on the basis that they always intended to file a defence and say I should pay them back the judgment money!

 

More than this, defending a case that has no chance of success is considered unreasonable behaviour by a Defendant. Check out part 27 of the CPR and the likes of Spearing V Jackson (2000). Meanwhile, they are still infringing my copyright.

[schwepppes33]

I am about to embark on a case where a defendant has sent me a without prejudice communication full of outright lies and deceit. Almost everything in the without prejudice email is false. To what extent does without prejudice cover utter lying?

[dx100uk]

you simply ignore it.

 

 

just trying to spoof you and thinking about things that are totally irrelevant

[schwepppes33]

The things that are false are actually incriminating and if I could submit them would lead to mega damages. It's someone claiming the opposite of reality, refusing to say to sorry, and then at the end of the email literally writing "I am not going to pay you any money". This is the MD from a firm with an 8 figure turnover.

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?51530-Without-prejudice

[schwepppes33]

Yes. So I would argue there was no genuine attempt at settling the claim, the Defendant lied, said they wouldn't do what was asked of them, falsely said that the wrongdoing had stopped. To top it all off the director who sent the email I can link personally to the wrongdoing and actually strip the corporate veil away from.

[Guest]

The things that are false are actually incriminating and if I could submit them would lead to mega damages. It's someone claiming the opposite of reality, refusing to say to sorry, and then at the end of the email literally writing "I am not going to pay you any money". This is the MD from a firm with an 8 figure turnover.

simply putting WP on a communication may not necessarily prevent its contents being considered in the end. It all depends on the full circumstances, and what ends up in issue.

if it is serious as you say, then consult a solicitor.

[schwepppes33]

Oh I'm about to issue proceedings at the IPEC (multi track in this case) and pondering whether to include statements from it in the claim. I can nail the director without ever referring to the WP communications, but the stuff he has written actually push it from civil to criminal.

[Guest]

Oh I'm about to issue proceedings at the IPEC (multi track in this case) and pondering whether to include statements from it in the claim. I can nail the director without ever referring to the WP communications, but the stuff he has written actually push it from civil to criminal.

are you represented?

you added to your post re criminal.. now thats one eg where WP doesn't really exist, but yr claim is currently civil.

hence, see a solicitor.

you would need to go into fuller details for any more detailed replies.

[schwepppes33]

No I'm not. Done 147 cases so far

 

Director falsely denies company having published images with metadata stripped from them.

Director falsely denies company having published images with watermarks missing.

Director used personal account to upload images stripped of watermarks to company social media.

Director used personal account to originally publish press releases with images shorn of copyright information.

Directory falsely claims they stopped using the images.

 

Use continues.

 

Do you have more on WP not really existing for criminal. This could mean that anything that meets the criteria under the CDPA would not be covered by WP? Or would WP just not apply if it were a criminal rather than civil case. Judge however takes into account the flagrancy, moral prejudice, conduct of the defendant, and compares it to criminality (that is any behaviour that is arguably criminal is also flagrant) in a civil trial to award additional damages.

[Guest]

Or would WP just not apply if it were a criminal rather than civil case.

yes, theres no WP in criminal matters.

a related crim conviction can be considered in a related civil matter.

but, as posted, sometimes WP comms can be considered re the substance of a civil matter, depending on the circumstances.

[schwepppes33]

Case isn't criminal, is civil, but conduct meets a criminal level - if only the police would ever do something about it!

[unclebulgaria67]

I think you need to research case law on WP, as i thought i had read that where WP was used to avoid liability by making false statements, that rights of non disclosure, could be subject to challenge. If you can find the case law to back up using this communication, then when you come to make your case, you can just include it. Up to the Judge whether to accept it or not.

 

Hopefully others with more legal knowledge and access to a legal library will see your thread to reply to it