Judge Birss hits out as porn costs mount

The case of ACS:Law and its campaign against people suspected of illegally downloading pornographic films took yet another turn last month.

Since ACS:Law began sending thousands of letters to alleged filesharers on behalf of its client Media CAT in 2009, claiming compensation of £495 for breach of copyright, the case has attracted significant attention. It has all the ingredients of a good story, but the decisions of Patents County Court Judge Birss QC also raise serious legal questions.

Judge Birss’s latest decision came on 18 April, a ruling on the wasted costs application made by the defendants in the case. Like his other rulings on the varied issues raised by the Media CAT claims, the decision is thoughtful and lucid but does not hesitate to criticise – often strongly – the behaviour of ACS:Law founder Andrew Crossley.

Crossley shut down the firm in February this year, after telling Judge Birss he was abandoning the litigation due to threats made against him and his family.

The wasted costs application was made by the defendants because they said ACS:Law was responsible for pursuing a case which was likely to fail. Under civil procedure rules wasted costs orders can only be made where lawyers have acted improperly, unreasonably or negligently and that conduct has incurred unnecessary costs.

Crossley is due to appear before the Solicitors Disciplinary Tribunal later this year. Judge Birss noted: “To investigate all of the various problems thrown up by Mr Crossley’s conduct in this case would be time consuming and costly. I recognise that this logic can be characterised as meaning that the more misconduct there appears to be, the less likely it is to be dealt with, but in my judgment the point is that this is a wasted costs application and is concerned primarily with the unnecessary costs incurred by the defendants.”

The exact amount of the costs at stake is still unclear. The defendants’ barrister Guy Tritton told Judge Birss that his clients had amassed costs of £90,000. Crossley’s barrister Paul Parker, instructed by Mills & Reeve, said costs related to the wasted costs application had reached £36,000.

Because Crossley stood to receive 65 per cent of the revenues from any successful litigation, Judge Birss said he had breached the solicitors’ code of conduct and the litigation would not have proceeded without this agreement with Media CAT. Accordingly he added the firm as a party to the standard costs application. Media CAT has already been ordered to pay the defendants’ costs on an indemnity basis.

The costs applications now go on to a second stage, on two issues – Crossley’s revenue-sharing arrangements with Media CAT and the way the cases were discontinued. Although Judge Birss found “a series of errors and questionable conduct” in other areas, he said these would not have incurred unnecessary costs.

The outcome is likely to discourage other solicitors from following a similar path to ACS:Law. The Digital Economy Act, currently under judicial review, could also impact future cases by forcing a less litigious response to illegal filesharing – and thus prevent more situations which, as Judge Birss says, have “brought the legal profession into disrepute”.