Tuesday, 5 November 2013

Not getting my day in court

Sorry to say that Deane have paid up, not accepting any liability and on the basis that court would be too much hassle, which I do understand.

What is a shame is all this work to prepare a court case, and it is wasted. I really wanted a judge to look at this and say one way or the other. I am deprived of that by their choice to just settle.

Shame.

I have a long list of others that have emailed that particular individual subscriber email address and this case and the previous one have both helped me understand the details of the county court process and the subtle aspects of the regulations. So I have to thank Deane for finally discussing the case in more detail and detailing their defence, which I can now counter in advance on future cases.

We have it very pinned down that the email address in question is that of an individual subscriber. The ICO comments on even less likely email addresses, and their clear re-iteration of the regulations and definitions therein, makes that crystal clear. If there is a contract between an individual and a public provider for the email address, it is an individual subscriber, job done.

The interesting defence I wanted to understand from a judge's point of view was the defence of "taken such care as in all the circumstances was reasonably required to comply with the relevant requirement". In my view there is a really simple step that can be taken which is not to send the emails at all, and the only reason to ignore that simple step is for purely commercial reasons, which is not usually justification for breaking a law.

The fact that the step of not sending any emails, or unsolicited emails, is a step that could be taken, and was not, is a key point in my view. A judge agreeing with me on that point would have been really useful. Shame.

We'll see what the next case brings. I do think that I have to revise my estimate of costs from the spam somewhat upward. This was £10, but clearly actually pursuing a case resulting from the spam means costs in my time alone that is way more. I suspect next case will be £100. In any case, if I ever get in front of a judge I'll ask for advice on working out the damages.

One spammer at a time.

10 comments:

  1. Unfortunately the costs recoverable would be for the receipt of the spam itself - expenses of the litigation are separate, probably nil for a small claim (I know the rules are a little different down there than in Scotland).

    I wonder if I could take any action against my persistent "out of area" phone spammers? Four in one day, and I'm pretty sure it has actually been the *same* female Scottish voice several times now; TPS and the ICO can't act without knowing the culprit's identity, but a court order should get me the log entries from BT's network. At this point, it's that, improvise something with Asterisk, or the police. (They're bright enough to hang up at any hint of an attempt to identify them - or, half the time, before saying anything at all.)

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    1. I wondered about that - the legislation does allow any damages suffered as a result of the breach. Surely all of the hassle resulting from the breach is such damages? I'd have to ask advice on that.

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    2. But if they settled straight away then there wouldn't be hassle and so the £100 wouldn't be warranted?

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  2. I assume he's paid the original amount plus court costs to date (including the small claims court filing fee)?

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    1. Yes. As it is early enough, he has not had to pay the hearing fee as I get that back, but paid the rest.

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    2. Good luck getting your hearing fee back - apparently that's at the discretion of the court. My application for a refund of the hearing fee was sent in in plenty of time, but it's been with a manager for them to make a decision for nearly three weeks now.

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    3. So can you submit a county court claim against the county court to get the hearing fee back?

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    4. One month and I have a cheque in my grubby mits. One month.

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  3. Can you not require them to pay for your time when they settle, given that they had clearly tried to cause as much hassle as possible?

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    1. When you settle, it's determined by what both sides agree on - they might agree to pay a bit for that, they might not. Once you reach court, the judge can award expenses, including increasing the amount awarded if the claim was vexatious or the other side did something unreasonable, like delaying filing paperwork. Even if you wouldn't normally get a penny in costs for winning, you can still be awarded some in cases like that.

      Conversely, even if you would normally get some costs for winning, if you'd turned down a more generous settlement offer and insisted on going to court instead, you might find yourself paying the "losing" side's costs, because turning down that offer seems unreasonable to the court.

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