Plagiarism of Blog Articles

[AnnH]

Hi Andy, I suspect the claimant didn't like the figure I put on the claim form, just as he ignored the figure on the original invoice. It's been exactly three weeks since I served the court papers and response pack on him, and not a squeak. He had 14 days to reply, I'll give it a few days in case the court has a response and is in the process of forwarding it to me - but next week I'll apply for a Default Judgement.

[AndyJ]

Thanks for the update, Ann.

I wish you luck with the next stage. And if you do get your default judgment, that could just be the start of the process of actually getting the judgment enforced and you getting your damages.

[AnnH]

Andy, yes, it's possible this individual will continue to be obstructive. If the court rules in my favour (and I see no reason why they would not) he will have a county court judgement against him (unless he pays up within 30 days). I've considered my options for getting payment and will resort to those if need be.

I'm not in the habit of naming and shaming people, but after the ruling if he does become a problem I'll make his name known in our industry.

[AnnH]

I’ve just sat down to fill in a Request for Judgement. I would very much appreciate some clarification on my options with this.

It appears there are two forms which can be used to request Judgement in Default: N227 (amount to be decided by the court) and N225 (specified amount).

On my initial claim form I was required by the court to state the amount I was claiming (I used the common format of three times the original invoice to allow for damages, plus interest and court costs. In fact there was no option to avoid putting a specified amount in since it was required to calculate court fees). Does this mean that I must enter this same specified sum into form N225, and hence the court acts on this figure and makes no determination on the damages? Would I be right in thinking that form N227 would only be used if I had heard back from the defendant with either a defence or partial offer?

It’s quite hard to get any answers on these finer points online, and I have found it impossible to get through to the court on the supplied telephone numbers and they do not respond to emails either. I'd be very grateful for any guidance.

[AnnH]

I think I've worked it out. From the IPEC Small Claims guidance notes:

"If the Defendant fails to respond to the claim within the time limits referred to above, the Claimant may apply to the court to enter default judgment against the Defendant, by filling in and returning the “Request for Judgment” form at the bottom of the Notice of Issue that was given to them when they issued the claim. If the court is satisfied that the Claim Form and Particulars of Claim have been properly served on the Defendant and the time for service of an Acknowledgment of Service or Defence has expired, it will usually give judgment for the Claimant against the Defendant and give directions for damages to be assessed by the court and for other remedies to be considered by the court. This may be done at a hearing, in which case notice of the hearing date will be sent to the parties, or it may be done without a hearing, in which case the court may ask the parties for written submissions or arguments and a written judgment will subsequently be produced by the judge."

I wasn't sent a Request for Judgement form or a Notice of Issue form when my sealed claim was return to me, but I am presuming it is form N225 that I need to fill in. It appears the court can still examine the case via a hearing even though there has been no defence submitted. I'm surprised the court would still invite arguments from the defendant - I believed a default judgement meant the defendant had given up his right to a say in the matter!

[AndyJ]

Hi Ann,

Yes i am pretty sure the Form N225 is what you need.

As for your other point, the courts are there to ensure fairness, which means that the defendant will be given every opportunity to put in a defence even if they hadn't responded before this stage. It is not unusual for a litigant in person to turn up at the last miniute and ask for more time to file a defence or to seek to admit evidence after the trial has started etc, basically trying to slow things down. Fortunately the ethos of the small claims track is for speedy resolution and so such tactics are rarely successful. The other thing to bear in mind is that the court (especially the IPEC and the Patents Court) usually conduct the trial in separate hearings: judgment and determination of quantum, although the latter can often be done on the papers. This means that the defendant can effectively admit liability for the infringement (by not putting in a defence) but still argue against the amount of the damages. However the court will take into account the fact that the defendant's lack of engagement has meant that the opportunity to settle the case much earlier was missed, when considering your expenses in seeing the claim through.

Remember that up till now, your claim is unlikely to have been looked at by a judge. So even if no defence is entered, she/he will go through the claim carefully to make sure it is valid and that the damages are proportionate. Usually this will be on the papers, but a hearing may be ordered if more details are requred to substantiate either the claim or the damages, or of course if a defence is entered.

[AnnH]

Thank you Andy, that does make sense. So in effect the Default Judgement means that the infringer is admitting what he has done, but he can still defend the amount being claimed if he wants to. I'm pleased that a judge will be examining quantum because I feel I set my invoice rather on the low side, plus this case is unashamedly flagrant.

[AnnH]

I wish I could post an update of my case, but I’m at a complete loss. This is been going on for months now and I have followed all protocols to the letter. I submitted a request for a Default Judgement several weeks ago and I have not heard anything back from the court.

I have tried dozens of times to telephone the court using the supplied phone numbers but it is clear the phone lines are unmanned and there is no answer service. Likewise emails - an automated response is generated saying that your query will be dealt with, then there is nothing. I phoned the multitrack division of the court and spoke to someone who gave me the direct email of the clerk to the small claims track - an email sent there was also ignored. I just want an update on my case.

I’m at the point of giving up. I have paid court fees but there appears to be no available service. I can’t travel all the way to London to try and get a simple question answered. Any thoughts - has anyone else experienced this?

[AndyJ]

Hi Ann,

That is disappointing to hear. I have usually found the clerks of the IPEC small claims court to be really helpful. That said it has been some time since I last contacted them, so the personnel may have changed. Does the telephone number you have been given end in 7387 or 6187? If not try those with the same preceding numbers you have. If matters are still not resolved soon, you could write to HHJ Hacon at the Royal Courts of Justice. He is the presiding judge with responsibility for the IPEC. Given that the small claims track is supposed to be swift and simple, this is not what I would have expected to hear. As a matter of interest, who was the judge who dealt with your initial case?

[AnnH]

Hi Andy,

Thank you so much for the reply. I’m very grateful for this forum. I haven’t been allocated to a judge as yet because so far the process has been to open a claim, I received back the sealed papers from the court, I served the papers and response pack on the defendant, I sent notice of service to the court, I heard nothing at all from the defendant so I submitted the form requesting a Default Judgement. At this stage I would have expected a response from the court either asking for further details about the case or to inform me as to the next step/hearing.

Yes, those are the telephone numbers I have tried. I would guess I have tried probably 50 times to get through by phone, it just rings and rings. The last email I sent was about a week ago, I got an automated response then nothing further.

Thank you for suggesting the judge, I will write to him and explain the situation.

[AnnH]

I’m relieved to say that I have now had a response from the court. It was a one-liner but at least I know my case is in the system. Last Friday I was informed that my infringer has submitted a defence and that the clerk will pass the case to the judge for examination. I was told the clerk would send me a copy of his defence.

At this point I’m unclear as to when he submitted his defence. I served the paperwork and response pack on him in August, and the advisory notes say that he must respond either way within 14 days. I didn’t hear anything whatsoever. I requested the default judgement in September.

I’m still a little surprised that he can submit a defence after a request for default judgement has been sent to the court - given the ample amount of time and the several opportunities he has already had before getting to that stage. I thought the idea of a default judgement was that the judge would examine the undefended evidence put before him and make a ruling based on that. The fact that the offender didn’t respond before that point surely means he accepts his wrong doing. Nevertheless, I will be very interested to see what that ‘defence’ is.

When the judge sees the file I would guess he will either make a judgement in private without a hearing, or he will request additional information if he feels it necessary.

[AndyJ]

Hi Ann,

Yes normally a response submitted out of time would normally be fatal to tthe defendant's case. Much will rest on the strength of any excuse which has been given for the delay. Furthermore, paragraph 4.1 of the code of pratice for pre-action conduct requires the defendant to contact the claimant with an explanation for why there is a delay. Secondly Part 63 of the Practice Rules, para 63.22(4) requires that any defence is served to all parties within the time frame, not just the court.

Assuming that the reviewing judge doesn't strike out the defence at this stage, then I would expect the next stage to be a case management conference. This is often conducted as a three-way telephone conference in order to save time and unnecesary travel. The CMC provides an opportunity for several things of a procedural nature:

• a. The judge may make orders about any documents, witness statements etc she/he requires to be made available, and will also set further deadlines for the submission of any supplementary evidence or submissions. Missing these deadlines tends to much more serious than missing the earlier deadline.
  b. The CMC will also provide the opportunity for the judge to decide whether a trial is required or whether she/he can deal with the case on the papers alone.
  c. If either of the parties have lodged an application for the case to be heard in the main IPEC rather than on the Small Claims track, then this will be examined, and possibly decided, by the judge at this stage.

The CMC would probably be conducted by the trial judge, but it is not unusual in more complicated cases, or cases where either the claim or response are inadequate in some respect, for the reviewing judge (HHJ Hacon) to conduct the CMC.

[AnnH]

Thank you Andy, that is immensely helpful. I remain confused about why I have not been kept in the loop by either the defendant or the court. I’m also disappointed to have learnt that the case file still has not even been passed to the judge. I cannot see how the infringer could have a defence, if any, which would merit such a delay.

I’m about to reply to the clerk and I’m going to ask for a fuller explanation as to why the process does not appear to have been adhered to, particularly as I have done everything in full accordance with the rules.

I have been through various court proceedings over the years (although none relating to the patents court) and I have never encountered delays like this or an almost blanket inability to contact anybody. I feel these delays have played into the defendant’s hands somewhat and it is demoralizing.

[AnnH]

Service of the documents on the infringer took place on 24th August. Request for Default Judgement sent to the court on 17th September. I've just today received a copy of the defence, which was stamped as received by the Court on 25th September. As of last Friday 10th November, the judge still had not been passed the case file for consideration.

The defence is what I had expected. The defendant is saying that the material was obtained from a photography forum rather than directly from my blog (although in his only communication with me he could not recall which one). He also says that he has not made any money from reproducing my content and that his actions have created no harm. He said he apologized to me publicly (which he did) and 'as a gesture of goodwill' linked to my article - I included a screenshot of that page in the bundle I sent to the court. He is also saying that I cannot reasonably ask money for the use of my work because it was freely posted on my blog and therefore ‘available’ to anyone. He also said that unless I can show proof that I charge for my articles (rather than just for my photography) then I cannot prove any intention to make money from them. He is also claiming that my approach has been ‘aggressive and intimidating’, and that is why he made no responses to my procedural emails as part of the pre-action protocol (I used plain English and terms/headings recommended by copyright experts precisely to avoid any emotional undertone). I’m similarly baffled by his claim that I was offering the article for free in the comment section (for completeness I copied all of the article's comments to the court - one commentator said they had linked to it, which I have no issue with).

I've not been invited to reply to the defence so as you mentioned earlier Andy I will just sit on it until otherwise directed (however long that may take).

[AndyJ]

Thanks for the further update, Ann.

The old "it was posted on the internet, so therefore it was was available for anyone to use" excuse won't impress the court. Sadly it is a common misconception among many users of the internet, fuelled in part I suspect, because many social media sites encourage re-tweeting and re-publishing, rather than linking which is a more acceptable way of saying 'hey! take a look at this great article/photograph/meme/song I just found.'