Somebody walked across my lawn. In doing so they left a few footprints.

I wrote to them, asked them to pay £300 pounds in compensation and sign 
and undertaking never to walk on any more lawns again.

Funnily enough they've offered me £8 in compensation, which is the 
market value of the grass they damaged.

I intend to incur thousands of pounds of costs taking them to court, 
claiming damages for the pristine turf that I'm now unable to sell. I 
didn't actually have any buyers for my turf, but I'm sure I would have 
been able to get £6000 for it.

Let's assume I win but the court finds that the damage was actually 
about £10. What are my chances of being able to recover costs?

On 21 Aug, 19:30, "a...@b.invalid" <a...@b.invalid> wrote:
> Somebody walked across my lawn. In doing so they left a few footprints.
>
> I wrote to them, asked them to pay £300 pounds in compensation and sign
> and undertaking never to walk on any more lawns again.
>
> Funnily enough they've offered me £8 in compensation, which is the
> market value of the grass they damaged.
>
> I intend to incur thousands of pounds of costs taking them to court,
> claiming damages for the pristine turf that I'm now unable to sell. I
> didn't actually have any buyers for my turf, but I'm sure I would have
> been able to get £6000 for it.
>
> Let's assume I win but the court finds that the damage was actually
> about £10. What are my chances of being able to recover costs?

None. Its highly likely that you'd be paying the other side's costs
(probably on an indemnity basis). You *asked* for £300 which is going
to make it look like the much larger sum claimed was a try-on. If the
case is allocated to the fast track and then you receive £10 its quite
likely you will be paying costs (especially if the defendant offered
£8).

Francis

On Thu, 21 Aug 2008 19:30:10 +0100, "a@b.invalid" <a@b.invalid> wrote:

> Somebody walked across my lawn. In doing so they left a few footprints.
>
> I wrote to them, asked them to pay £300 pounds in compensation and sign 
> and undertaking never to walk on any more lawns again.
>
> Funnily enough they've offered me £8 in compensation, which is the 
> market value of the grass they damaged.
>
> I intend to incur thousands of pounds of costs taking them to court, 
> claiming damages for the pristine turf that I'm now unable to sell. I 
> didn't actually have any buyers for my turf, but I'm sure I would have 
> been able to get £6000 for it.
>
> Let's assume I win but the court finds that the damage was actually 
> about £10. What are my chances of being able to recover costs?

Did you decide to sue for the £300 or the £6000?  If the former then no
costs regardless and if the latter then I see no reason you should not get
full costs as the award exceeded the offer.

Tony

On Thu, 21 Aug 2008 19:30:10 +0100, "a@b.invalid" <a@b.invalid> wrote:

>Somebody walked across my lawn. In doing so they left a few footprints.
>
>I wrote to them, asked them to pay £300 pounds in compensation and sign 
>and undertaking never to walk on any more lawns again.
>
>Funnily enough they've offered me £8 in compensation, which is the 
>market value of the grass they damaged.
>
>I intend to incur thousands of pounds of costs taking them to court, 
>claiming damages for the pristine turf that I'm now unable to sell. I 
>didn't actually have any buyers for my turf, but I'm sure I would have 
>been able to get £6000 for it.
>
>Let's assume I win but the court finds that the damage was actually 
>about £10. What are my chances of being able to recover costs?

Zero.

-- 
Don Aitken
Mail to the From: address is not read.
To email me, substitute "clara.co.uk" for "freeuk.com"

Don't confuse costs with compensation. Legal costs need to be properly evidenced, and even 
then the court has wide discretion. Compensation is to meke good real losses.
Whether civil or criminal, courts are well informed and properly sceptical about all such 
applications.

Anthony R. Gold wrote:
> On Thu, 21 Aug 2008 19:30:10 +0100, "a@b.invalid" <a@b.invalid> wrote:
>
>> Somebody walked across my lawn. In doing so they left a few
>> footprints.
>>
>> I wrote to them, asked them to pay £300 pounds in compensation and
>> sign and undertaking never to walk on any more lawns again.
>>
>> Funnily enough they've offered me £8 in compensation, which is the
>> market value of the grass they damaged.
>>
>> I intend to incur thousands of pounds of costs taking them to court,
>> claiming damages for the pristine turf that I'm now unable to sell. I
>> didn't actually have any buyers for my turf, but I'm sure I would
>> have been able to get £6000 for it.
>>
>> Let's assume I win but the court finds that the damage was actually
>> about £10. What are my chances of being able to recover costs?
>
> Did you decide to sue for the £300 or the £6000?  If the former then
> no costs regardless and if the latter then I see no reason you should
> not get full costs as the award exceeded the offer.

It would probably depend, actually, on whether the case was allocated to the 
small claims track or the fast track. In reality the judge would either 
bully the claimant into dropping the claim or would insist that the parties 
submit their dispute to mediation.

>> Did you decide to sue for the £300 or the £6000?  If the former then
>> no costs regardless and if the latter then I see no reason you should
>> not get full costs as the award exceeded the offer.
> 
> It would probably depend, actually, on whether the case was allocated to the 
> small claims track or the fast track. In reality the judge would either 
> bully the claimant into dropping the claim or would insist that the parties 
> submit their dispute to mediation. 

Sorry. I'm going to sue for the £6000, in order to ensure that the claim 
isn't on the small claims track and so give the other side the maximum 
incentive to settle.

I'm sure you can all see where I'm going with this.

a@b.invalid wrote:
>>> Did you decide to sue for the £300 or the £6000?  If the former then
>>> no costs regardless and if the latter then I see no reason you should
>>> not get full costs as the award exceeded the offer.
>>
>> It would probably depend, actually, on whether the case was allocated 
>> to the small claims track or the fast track. In reality the judge 
>> would either bully the claimant into dropping the claim or would 
>> insist that the parties submit their dispute to mediation. 
> 
> Sorry. I'm going to sue for the £6000, in order to ensure that the claim 
> isn't on the small claims track and so give the other side the maximum 
> incentive to settle.
> 
> I'm sure you can all see where I'm going with this.
> 
I have seen abuse of process referred to from time to time but no idea 
what is required to constitute it.
I have to say that when I saw your original post I did wonder whether it 
was likely to elicit another response that might be referred to moderation.

On Thu, 21 Aug 2008 19:30:10 +0100, "a@b.invalid" <a@b.invalid> wrote:

>Somebody walked across my lawn. In doing so they left a few footprints.
>
>I wrote to them, asked them to pay £300 pounds in compensation and sign 
>and undertaking never to walk on any more lawns again.
>
>Funnily enough they've offered me £8 in compensation, which is the 
>market value of the grass they damaged.
>
>I intend to incur thousands of pounds of costs taking them to court, 
>claiming damages for the pristine turf that I'm now unable to sell. I 
>didn't actually have any buyers for my turf, but I'm sure I would have 
>been able to get £6000 for it.
>
>Let's assume I win but the court finds that the damage was actually 
>about £10. What are my chances of being able to recover costs?

Nil.

You will only generally be awarded costs if the final court award is
significantly above any offer you have rejected.

In this case, the demand would also very possibly be treated as
frivolous, so you might end up paying the opposition's costs as well
as your won.
-- 
Alex Heney, Global Villager
Unburdened by the rigors of coherent thought.
To reply by email, my address is alexATheneyDOTplusDOTcom

> None. Its highly likely that you'd be paying the other side's costs
> (probably on an indemnity basis). You *asked* for £300 which is going
> to make it look like the much larger sum claimed was a try-on. If the
> case is allocated to the fast track and then you receive £10 its quite
> likely you will be paying costs (especially if the defendant offered
> £8).

So my best bet is to hope that the other party doesn't turn up, my £6000 
claim will be undefended and my £10,000 costs will look reasonable.

If on the other hand they do turn up and make a convincing case for 
their £8 figure then I'm looking at being very much out of pocket.

So if I try this on the 25,000 people who walked over my grass I'm 
gambling £250 million plus 25,000 other peoples' costs on them not being 
able to make that case.

There's serious money to be made by the first firm of lawyers who manage 
to prove the £8 then, but not as much as for the first to prove the £6000.

a@b.invalid wrote:
> Somebody walked across my lawn. In doing so they left a few footprints.
> 
> I wrote to them, asked them to pay £300 pounds in compensation and sign 
> and undertaking never to walk on any more lawns again.
> 
> Funnily enough they've offered me £8 in compensation, which is the 
> market value of the grass they damaged.
> 
> I intend to incur thousands of pounds of costs taking them to court, 
> claiming damages for the pristine turf that I'm now unable to sell. I 
> didn't actually have any buyers for my turf, but I'm sure I would have 
> been able to get £6000 for it.
> 
> Let's assume I win but the court finds that the damage was actually 
> about £10. What are my chances of being able to recover costs?
> 

Your chances of recovering the costs are nil because that is about the 
chance of winning your claim.

You can fix this 'damage' for far less than the amount you are claiming 
and you have a duty to mitigate your losses.

You can't claim for a whole new car just because somebody scratches your 
wing mirror.

On Thu, 21 Aug 2008 19:30:10 +0100, a@b.invalid put finger to keyboard
and typed:

>Somebody walked across my lawn. In doing so they left a few footprints.
>
>I wrote to them, asked them to pay £300 pounds in compensation and sign 
>and undertaking never to walk on any more lawns again.
>
>Funnily enough they've offered me £8 in compensation, which is the 
>market value of the grass they damaged.
>
>I intend to incur thousands of pounds of costs taking them to court, 
>claiming damages for the pristine turf that I'm now unable to sell. I 
>didn't actually have any buyers for my turf, but I'm sure I would have 
>been able to get £6000 for it.
>
>Let's assume I win but the court finds that the damage was actually 
>about £10. What are my chances of being able to recover costs?

Pretty minimal. But I suspect you're playing games with us here.

Mark

a@b.invalid wrote:
>>> Did you decide to sue for the £300 or the £6000?  If the former then
>>> no costs regardless and if the latter then I see no reason you
>>> should not get full costs as the award exceeded the offer.
>>
>> It would probably depend, actually, on whether the case was
>> allocated to the small claims track or the fast track. In reality
>> the judge would either bully the claimant into dropping the claim or
>> would insist that the parties submit their dispute to mediation.
>
> Sorry. I'm going to sue for the £6000, in order to ensure that the
> claim isn't on the small claims track and so give the other side the
> maximum incentive to settle.
>
> I'm sure you can all see where I'm going with this.

I'm not sure I *can*!

If you sued for 6k for trespass, the DJ would hold an allocation hearing, 
tell you that your claim was ridiculously high, allocate it to the small 
claims track and encourage you with extreme prejudice to use mediation.

On 21 Aug, 23:55, "a...@b.invalid" <a...@b.invalid> wrote:

> So my best bet is to hope that the other party doesn't turn up, my £6000
> claim will be undefended and my £10,000 costs will look reasonable.

Well, what would probably happen (if they didn't bother to defend) is
you would obtain judgment in default, so no-one would look at the
claim and there'd be no hearing. You would not get £10,000 costs in
such a circumstance.

What are these £10,000 costs being spent on? They have to be being
spent on something or you don't get them.

>
> If on the other hand they do turn up and make a convincing case for
> their £8 figure then I'm looking at being very much out of pocket.
>

Oh yes. Or indeed your £10. Have a read of the CPR about
proportionality of costs and the standard basis.

> So if I try this on the 25,000 people who walked over my grass I'm
> gambling £250 million plus 25,000 other peoples' costs on them not being
> able to make that case.
>

Well, *you'd* have to make the case for the sum you wanted. If you
failed to do so then you'd be out of pocket (for court costs at least)
and any time you spent doing it. If you do it several times, your real
loss is going to be lower (since you can't make a profit out of
damages) so your chances of succeeding are really really low. Your
local DJ's would also get wise to you.

And you would lose big.

> There's serious money to be made by the first firm of lawyers who manage
> to prove the £8 then, but not as much as for the first to prove the £6000.

No. I think you are mis-imagining what would happen, amusing though it
might be. No-one makes serious money out of cases worth £8-£10 pounds.

Francis

On 21 Aug, 22:10, "a...@b.invalid" <a...@b.invalid> wrote:

>
> Sorry. I'm going to sue for the £6000, in order to ensure that the claim
> isn't on the small claims track and so give the other side the maximum
> incentive to settle.

So you will be paying the other side's costs unless you can prove that
your loss was higher than £5,000. Interesting strategy.

>
> I'm sure you can all see where I'm going with this.

Bankruptcy by the looks of it.

Francis

In article ,
fjmd1@yahoo.co.uk  wrote:
>On 21 Aug, 22:10, "a...@b.invalid" <a...@b.invalid> wrote:
>
>>
>> Sorry. I'm going to sue for the £6000, in order to ensure that the claim
>> isn't on the small claims track and so give the other side the maximum
>> incentive to settle.
>
>So you will be paying the other side's costs unless you can prove that
>your loss was higher than £5,000. Interesting strategy.
>
>>
>> I'm sure you can all see where I'm going with this.
>
>Bankruptcy by the looks of it.

My suspicion is that the original poster is drawing an analogy with the
behaviour of the RIAA and BPI and friends in pursuing large numbers of
individuals for damages relating to copyright infringement.

I doubt that he or she is intending to adopt the strategy themselves; 
merely looking to highlight what they perceive as the inappropriateness
of this kind of approach to litigation ...

[ I wonder if I guessed right? ]

-patrick.

> Pretty minimal. But I suspect you're playing games with us here.

I had hoped that the language and numbers in the question would make it 
obvious what I'm referring to to anyone following the news or this 
group, but that by picking a hypothetical example I'd be able to avoid 
distractions away from the point of the question.

I apologise to anyone who feels they've been misled.

"Patrick Gosling"  wrote in message 
news:g8m14u$sts$1@gemini.csx.cam.ac.uk...
> In article 
> ,
> fjmd1@yahoo.co.uk  wrote:
>>On 21 Aug, 22:10, "a...@b.invalid" <a...@b.invalid> wrote:
>>
>>>
>>> Sorry. I'm going to sue for the £6000, in order to ensure that the claim
>>> isn't on the small claims track and so give the other side the maximum
>>> incentive to settle.
>>
>>So you will be paying the other side's costs unless you can prove that
>>your loss was higher than £5,000. Interesting strategy.
>>
>>>
>>> I'm sure you can all see where I'm going with this.
>>
>>Bankruptcy by the looks of it.
>
> My suspicion is that the original poster is drawing an analogy with the
> behaviour of the RIAA and BPI and friends in pursuing large numbers of
> individuals for damages relating to copyright infringement.
>
> I doubt that he or she is intending to adopt the strategy themselves;
> merely looking to highlight what they perceive as the inappropriateness
> of this kind of approach to litigation ...
>
> [ I wonder if I guessed right? ]

I don't think a copyright infringement action would actually be suitable for 
the small claims track - but I certainly think that if you are sued for 
copyright infringement it would be a tactic worth trying to submit an 
allocation questionnaire that seeks the small claims track, and thereafter 
to do what you can to get it allocated to that track - and maybe the judge 
will feel that it is a suitable track for such a case.

If of course people ignore the correspondence from the copyright holder and 
then ignore the legal proceedings, then they must expect to be clobbered 
rather heavily.

On Fri, 22 Aug 2008 10:35:05 +0100, jpmg@eng.cam.ac.uk (Patrick Gosling)
wrote:

> In article ,
> fjmd1@yahoo.co.uk  wrote:
>> On 21 Aug, 22:10, "a...@b.invalid" <a...@b.invalid> wrote:
>>
>>>
>>> Sorry. I'm going to sue for the £6000, in order to ensure that the claim
>>> isn't on the small claims track and so give the other side the maximum
>>> incentive to settle.
>>
>> So you will be paying the other side's costs unless you can prove that
>> your loss was higher than £5,000. Interesting strategy.
>>
>>>
>>> I'm sure you can all see where I'm going with this.
>>
>> Bankruptcy by the looks of it.
>
> My suspicion is that the original poster is drawing an analogy with the
> behaviour of the RIAA and BPI and friends in pursuing large numbers of
> individuals for damages relating to copyright infringement.
>
> I doubt that he or she is intending to adopt the strategy themselves; 
> merely looking to highlight what they perceive as the inappropriateness
> of this kind of approach to litigation ...
>
> [ I wonder if I guessed right? ]

If you are right then the grass stomping mentioned in the original question
was a poor analogy and so the replies it attracted are likely inappropriate
to an IP action.

Tony

On 22 Aug, 09:30, "a...@b.invalid" <a...@b.invalid> wrote:
> > Pretty minimal. But I suspect you're playing games with us here.
>
> I had hoped that the language and numbers in the question would make it
> obvious what I'm referring to to anyone following the news or this
> group, but that by picking a hypothetical example I'd be able to avoid
> distractions away from the point of the question.
>
> I apologise to anyone who feels they've been misled.

Some of us only pick and choose threads and sometimes threads get just
too long to read before we hit them.

Francis

> If you are right then the grass stomping mentioned in the original question
> was a poor analogy and so the replies it attracted are likely inappropriate
> to an IP action.

I would be grateful if you would explain why the analogy is poor.

The obvious flaw is that there is no limit on the number of copies that 
may have been made in an IP case but I thought, for the purposes of 
example, we could safely assume just the one.

Does it in any way undermine the key to my theory - that if the very 
large number of people being threatened combine relatively small amounts 
of money to form a common defense (probably using expert witnesses that 
they would individually be unable to afford) that proves the damages are 
low then the claimant stands to lose a very large amount in costs?

On Fri, 22 Aug 2008 15:20:07 +0100, "a@b.invalid" <a@b.invalid> wrote:

>> If you are right then the grass stomping mentioned in the original question
>> was a poor analogy and so the replies it attracted are likely inappropriate
>> to an IP action.
>
> I would be grateful if you would explain why the analogy is poor.

I wrote that thinking that a copyright case could be not get allocated to a
fast track in the Patents County Court but I now see that I had been wrong.

Tony

The Todal  posted
>I don't think a copyright infringement action would actually be 
>suitable for the small claims track -

Why not (assuming the sum claimed is within the small claims limit)?

>but I certainly think that if you are sued for copyright infringement 
>it would be a tactic worth trying to submit an allocation questionnaire 
>that seeks the small claims track, and thereafter to do what you can to 
>get it allocated to that track - and maybe the judge will feel that it 
>is a suitable track for such a case.

If so, would that have avoided a costs order?

-- 
Les
"God will save her, fear you not, be you the men you've been.
Get you the sons your fathers got and God will save the Queen."

On 22 Aug, 15:20, "a...@b.invalid" <a...@b.invalid> wrote:

>
> I would be grateful if you would explain why the analogy is poor.
>

Now I think I understand what you are on about, the analogy is poor.
While you could sue (and win) merely by proving trespass, to obtain
damages you have to prove the damages, not the other way around. If
the defendant admitted the trespass and offered to pay you nominal
damages, that is all you will get (and some fixed costs which will
almost certainly be less than your real costs). I'm not sure you are
engaging with that, you seem to think the defendant would have to
prove you hadn't lost the money.

[snip]

>
> Does it in any way undermine the key to my theory - that if the very
> large number of people being threatened combine relatively small amounts
> of money to form a common defense (probably using expert witnesses that
> they would individually be unable to afford) that proves the damages are
> low then the claimant stands to lose a very large amount in costs?

The Davenport Lyons case discussed in another thread involves a
hearing in the patents county court. As far as we know, the defendants
were contesting liability not just quantum. That may be why costs
against them were high - those costs needed to be incurred. I am
surprised by the reported quantum, but I have no details of the case,
some public spirited person could (perhaps) make a request for details
of it.

In your example, I can't see any way you can prove more than very
nominal loss, hence there would be no need for expert witnesses or a
common defence fund. Each sued party can make an offer to pay as soon
as they receive the claim form and you are nowhere.

If it was me, I'd offer you (say) £10 to go away when I got your pre-
action letter and/or claim form. The hassle is worth more than £10 to
you so you won't be trying it again. You won't get your costs on the
claim since either (a) I will have settled already or (b) you won't
have written a pre-action letter which means you don't deserve your
court fee. I'd make my offer in the form of CPR 36 so that I'd get
indemnity costs  interest if you didn't beat it (to put the
frighteners on you).

Francis

>> I would be grateful if you would explain why the analogy is poor.
>>
> 
> Now I think I understand what you are on about, the analogy is poor.
> While you could sue (and win) merely by proving trespass, to obtain
> damages you have to prove the damages, not the other way around. If
> the defendant admitted the trespass and offered to pay you nominal
> damages, that is all you will get (and some fixed costs which will
> almost certainly be less than your real costs). I'm not sure you are
> engaging with that, you seem to think the defendant would have to
> prove you hadn't lost the money.

I'm fully behind the principle that the claimant has to prove their 
damages but I don't understand why that breaks my analogy. Is proving 
damage any different in a copyright case? As I understand it damages can 
only be claimed for loss of profits, unlike the US system there is no 
assumed level of damage.

In the DL case they appear to have claimed for what, on the face of it, 
is a ridiculous level of damages and succeeded.

The only news report I can find that describes the formula DL used for 
costs is torrentfreak, a site unlikely to be impartial, but they say:

"So the formula for calculating damages is: Estimated total days file 
was uploaded by the defendant multiplied by the average number of 
downloaders defendant (could have) made work available to per day, 
multiplied by the profit it claims to have lost on each download (10 
euros). Note that the first two variables are estimates, not backed by 
any evidence. It’s unclear whether or not a user logged for multiple 
’seconds’ on multiple dates would incur more damages, but the size of 
the damages element awarded against Miss Barwinska - more than £6000 
($12,000) - raises a few questions."

> some public spirited person could (perhaps) make a request for details

I'll try.

On 23 Aug, 11:00, "a...@b.invalid" <a...@b.invalid> wrote:

>
> I'm fully behind the principle that the claimant has to prove their
> damages but I don't understand why that breaks my analogy. Is proving
> damage any different in a copyright case? As I understand it damages can

No, although lost *profit* is not strictly the only measure of
damages, but its probably the right one in this case. In your lawn
case, you would have almost zero chance of proving that you had lost
anything. You'd be the one who had to produce the evidence of loss.

> only be claimed for loss of profits, unlike the US system there is no
> assumed level of damage.
>
> In the DL case they appear to have claimed for what, on the face of it,
> is a ridiculous level of damages and succeeded.
>

It does seem so, but then we really don't know the detailed facts of
the case (which may be in DL's interest to make it sound worse than it
is) and reporting of cases in court is so atrocious one has to be
pretty sceptical.

> The only news report I can find that describes the formula DL used for
> costs is torrentfreak, a site unlikely to be impartial, but they say:
>
> "So the formula for calculating damages is: Estimated total days file
> was uploaded by the defendant multiplied by the average number of
> downloaders defendant (could have) made work available to per day,
> multiplied by the profit it claims to have lost on each download (10
> euros). Note that the first two variables are estimates, not backed by
> any evidence. It’s unclear whether or not a user logged for multiple
> ’seconds’ on multiple dates would incur more damages, but the size of
> the damages element awarded against Miss Barwinska - more than £6000
> ($12,000) - raises a few questions."

Indeed. The enormous hole in this is whether all those downloads would
have been sales - highly doubtful. Could DL show a loss of profit
during the period of the files being made available (eg lower sales?),
again doubtful. But of course we don't know.

>
> I'll try.

It should be possible to get all the pleadings and skellies out of the
court, possibly the transcript too, but *at a price* which I am not
feeling like paying at the moment for various reasons.

Francis

fjmd1@yahoo.co.uk wrote:
> On 23 Aug, 11:00, "a...@b.invalid" <a...@b.invalid> wrote:
>
>>
>> I'm fully behind the principle that the claimant has to prove their
>> damages but I don't understand why that breaks my analogy. Is proving
>> damage any different in a copyright case? As I understand it damages
>> can
>
> No, although lost *profit* is not strictly the only measure of
> damages, but its probably the right one in this case. In your lawn
> case, you would have almost zero chance of proving that you had lost
> anything. You'd be the one who had to produce the evidence of loss.
>
>> only be claimed for loss of profits, unlike the US system there is no
>> assumed level of damage.
>>
>> In the DL case they appear to have claimed for what, on the face of
>> it, is a ridiculous level of damages and succeeded.
>>
>
> It does seem so, but then we really don't know the detailed facts of
> the case (which may be in DL's interest to make it sound worse than it
> is) and reporting of cases in court is so atrocious one has to be
> pretty sceptical.
>
>> The only news report I can find that describes the formula DL used
>> for costs is torrentfreak, a site unlikely to be impartial, but they
>> say:
>>
>> "So the formula for calculating damages is: Estimated total days file
>> was uploaded by the defendant multiplied by the average number of
>> downloaders defendant (could have) made work available to per day,
>> multiplied by the profit it claims to have lost on each download (10
>> euros). Note that the first two variables are estimates, not backed
>> by any evidence. It’s unclear whether or not a user logged for
>> multiple ’seconds’ on multiple dates would incur more damages, but
>> the size of the damages element awarded against Miss Barwinska -
>> more than £6000 ($12,000) - raises a few questions."
>
> Indeed. The enormous hole in this is whether all those downloads would
> have been sales - highly doubtful. Could DL show a loss of profit
> during the period of the files being made available (eg lower sales?),
> again doubtful. But of course we don't know.

According to the Copyright Patents and Designs Act 1988, Section 97 (2):

"The court may in an action for infringement of copyright having regard to 
all the circumstances, and in particular to—
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require."

It's not therefore bound just by an assessment of the lost profits.  It can 
order what it likes.  If it takes a dim view of what the respondant has 
done, it will call the infringement flagrant, and justify any damages it 
awards (if it needs to) that way.

On 23 Aug, 18:40, "Norman Wells"  wrote:

>
> According to the Copyright Patents and Designs Act 1988, Section 97 (2):
>
> "The court may in an action for infringement of copyright having regard to
> all the circumstances, and in particular to—
> (a) the flagrancy of the infringement, and
> (b) any benefit accruing to the defendant by reason of the infringement,
> award such additional damages as the justice of the case may require."
>
> It's not therefore bound just by an assessment of the lost profits.  It can
> order what it likes.  If it takes a dim view of what the respondant has
> done, it will call the infringement flagrant, and justify any damages it
> awards (if it needs to) that way.

No indeed. That was, I hope, clear from my response. For example,
another measure of damages would be the gain accruing to the defendant
but that is not (in this case) worth pursuing for the claimant as the
file sharer does not appear (on the reports I have seen) gained very
much from the infringement. Hence the qualification in my answer.

Maybe I should spell things out more.

Of course, we can't really tell without knowing all the facts.

Francis

On Fri, 22 Aug 2008 09:30:06 +0100, a@b.invalid put finger to keyboard
and typed:

>> Pretty minimal. But I suspect you're playing games with us here.
>
>I had hoped that the language and numbers in the question would make it 
>obvious what I'm referring to to anyone following the news or this 
>group, but that by picking a hypothetical example I'd be able to avoid 
>distractions away from the point of the question.
>
>I apologise to anyone who feels they've been misled.

I don't think it's misleading. I'm surprised it took so long for
others to pick up the reference.

Mark