Sep 28, 2010 at 05:23 by A Law Student Writes
Mr Crossley, brace yourself to be BONED BY LAW, because …
the ‘speculative invoicing’ scam crucially depends upon a mechanism known in legalese as a Norwich Pharmacal order for pre-trial discovery against third-party facilitators — whereas the general rule is that only people who are actually named as parties to existing litigation can be obliged to disclose documents etc. relevant to the claims, this caselaw provides for “an equitable and exceptional order granted to assist with the administration of justice where discovery is absolutely necessary in order to enable a party to proceed with a bona fide claim”.
This essentially entails a solicitor named, for example, Andrew Crossley appearing unopposed (ex parte) in a civil Court and asking it to exercise an inherent jurisdiction to compel a third party, alleged to be the only practicable source of information identifying a potential defendant, to provide these details to the plaintiff, his client, so that a civil legal action, here presumably to recover damages for the tort of copyright infringement, can be commenced.
Such requests seem to have succeeded based on a mere smattering of superficially supportive but untested evidence, as it would be presumed a more rigourous scrutiny will happen at a later stage in the fully contested lawsuit.
This is apparently how Crossley has, at no cost more the time taken to turn up, procured court orders obliging ISP’s to divulge in bulk their clients’ personal details, based solely upon the IP address and corresponding timestamp ‘evidence’ his accomplices dredged up from public P2P torrent swarms.
The mass exploitation of thusly disclosed information for ample profit from the vulnerable and defenseless quickly followed.
Happily though, there’s a fatal snag or two in the drive-chain of this cozy, colour-of-law convenience conveyor:
1. If the above-mentioned solicitor actually intended to never proceed into court with a full-blown tort action in respect of any of the alleged infringements upon which his various NPO applications were premised, then the essential good faith (bona fides) requirement was missing in action and he was on each occasion in fact committing a fraud upon the Court and obtaining its Orders by false pretenses, effectively abusing its powers to further a highly lucrative private information fishing expedition, not the cause of justice.
2. In ex parte proceedings the onus is on the moving party to make full and frank disclosure of all relevant facts and law, including those that may be adverse to his interests. Failure to do so can result in any order so obtained being later set aside. It seems highly unlikely Crossley fairly represented to the Court how the negative ramifications for end-users’ right to privacy protected under ECHR, Art.8, their reasonable expectations of confidentiality and the substantial public interest in preventing innocent persons being targeted should all be weighed up against the interests of his clients to recover, or that he accurately represented the extent of damages involved, or the logically frail constructs upon which he intended to rely to eventually prove them in court.
Crossley’s lack of genuine intent to proceed should be fairly trivial to demonstrate from the total absence of any related subsequent court records, as he would need to have lodged the (completely separate) papers to state a claim for damages against the alleged infringer in the case of at least one of the persons named through his multiple NPO applications.
This he will almost certainly have failed to do, as incurring the considerable Court Fees, payable per individual case at that stage to commence potentially expensive litigation against identified parties who might actually defend themselves, was never part of the business plan and hence will have been omitted as ‘unnecessary waste’. [NB: Don't bother rushing to do it 'retroactively', now that the cat is out of the bag, dummy ";0)] Naturally, the email trail neatly verifies that this was never contemplated nor worked upon, even in the large proportion (~70%) of cases where identified alleged infringers failed to react submissively or at all to his menacing letters.
Now, in light of the above two points, consider an interesting and rather fundamental principle of the so-called ‘Justice System’ in common law countries — that solicitors are held to be ‘Officers of the Court’ whose primary professional duty is to NEVER mislead it under any circumstance whatsoever.
While this elastic ethic of course allows some leeway for beating about the bush in time-honoured fashion by prefacing each dubious utterance with ‘my client this’ or ‘my client that’, if breached a bit too blatantly it begins to reflect badly upon the system itself, tending to bring the whole caboodle and all its ‘players’ into public disrepute.
As such, there is understandably nothing the Old Beak, when snapped to attention by mass public exposure, takes more personally, nor hammers with more aggressive relish, than a duplicitous solicitor caught out self-interestedly lying in the face of his Court (in facie curie). In sporting terminology, this caper is about as rash as sticking your head in a lion’s mouth and flicking his love-spuds with a wet towel – Bamm!
One formal way to hammer such deviant characters flatter than a Wienerschnitzel is via a prosecution for ‘Criminal Contempt of Court’, which in England’s Crown Court carries up to two years of obsessively trying to avoid dropping the soap in the showers of the ‘Big House’. Such proceedings can arise by the Court’s own motion or on the basis of an ordinary criminal complaint.
On the civil front, a decent law firm might take a day in court to demonstrate that ACS:Law wrongfully obtained the NPOs, thus invalid and unlawful from the outset (void ab initio) and therefore, in a class action suit, deservedly recover in damages all the cash ACS:Law illicitly raked in and redistribute it to the victims.
That could, in turn, lead to Mr Crossley being nicely opened up to further criminal charges for having used court orders he had reason to believe were void for the purposes of fraud / extortion of monies.
Various actions for defamation and breaches of the Data Protection Act, privacy, confidentiality and contract also beckon alluringly.
All things considered, it seems Mr Crossley’s path to personal bankruptcy, expulsion from the legal profession and/or jail is clearly paved by his own amazing prowess.
Cheers, Andrew, here’s looking at you, babe!
——–
Sources:
Norwich Pharmacal v. Customs and Excise Commissioners [1974] A.C. 133
House of Lords in Ashworth Hospital Authority v MGN Ltd [2002]
Smith v ADVFN PLC [2008] EWCA
R (Mohamed) v Secretary of State for Foreign Affairs [2008] EWHC 2048
European Convention on Human Rights
Fraud Act 2006
Social Networking Bookmarks