This is one on which I am really interested in feedback. I hope people appreciate that some of my blogs I do not even think I have all of the answers and am keen to learn what others think...
The background is simple, I have sued a spammer under The Privacy and Electronic Communications (EC Directive) Regulations 2003, as you do. I sued for £200, as per my normal notice of action emails. This is an interesting one as we are pretty sure the guy called my email provider (not A&A) to suggest someone was using his domain for a scam, and claiming that my email was a known scam, all over the Internet! I think I blogged on it. But I cannot be 100% sure it was him, as I emailed more than one spammer that day, and he refused to identify himself on the call. This is one to which I did get an email reply though, and oddly he stated two things (a) that he bought a mailing list (which confirms that I did not give him permission to send the email, and so not a good thing to have admitted), and (b) that he has insurance for this (odd, and suggests he knows that what he is doing may incur charges for which he should be insured!).
Anyway, simple matter, county court claim, and out of the blue he responds by email to me as a without prejudice negotiation.
He offered to settle, with no admission of guilt, by paying £100 to NSPCC.
I replied pointing out that if I did not feel I had suffered damages then the claim would have been invalid anyway. This is not punitive as that is not allowed for county court claims or the PECR. I am happy to negotiate the level of damages as most are "intangible" losses to me, and would accept £100 (plus my £25 court fees) as settlement, but that paying to a charity makes no sense to settle my damages claim.
He then replies, with a screen shot, to confirm he has paid £125 to NSPCC. I did reply explaining that doing such was silly. He says he will defend the claim. Yay!
Now this is what I do not get. I have seen this a couple of times before - some claim or some debt - I think we have even had people A&A are chasing for a debt say this, that someone would pay to a charity rather than to "me" as a means to "settle" the claim!
I really do not understand this. What am I missing here?
How could paying money to a third party (charity or whatever) be a sensible "offer" in any way to settle a claim for damages?
Update: 16th Jan
He has filed a defence, which predictably says he bought a list that was meant to be opt in, etc... Nothing surprising there, but what is odd is that he says he offered to pay £100 to NSPCC, that I refused and said I wanted £125 paid to me (as I did), that we did not agree, and that he has now paid £125 to NSPCC. I was going to use that, and thought I could not as without prejudice negotiations, so he has made my life a lot easier now!
What is also odd is that he has said no to a mediation call and written "I HAVE MADE AN OFFER". That seems odd, as you would expect that to mean a mediation call is a good idea.
I have written to the court stating that I accept the amount offered and that I would simply like an order to pay *me* the amount offered (£100) to settle the claim. We'll see what happens.
The defence is a tad funny as it states "I believe that [defendant] have shown due diligence and a commitment to abide by the rules of Electronic communications in order try and to grow their business. Therefore I feel Additional Resources Ltd should be protected from this claim by section22 (3) of The privacy and Electronic Communications (EC Directive) Regulation 2003", well 22(3) is nothing to do with "due diligence", it starts "that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient" which simply is not the case and not something he has claimed, so 22(3) simply does not apply.
This should be fun if we go to court. I have the facts clear that I am an individual subscriber (I have an invoice for the email in my name). I have the admission that he bought in my details rather than got than as part of a sale/negotiation (so 22(3) does not apply). He is clearly in breach, leaving only the amount as the problem area, and for that I have the figure he has placed on this (£100) which I am happy to accept.
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