PROVING THINGS 157: DEFECTS IN EVIDENCE “SO FUNDAMENTAL” THAT APPLICATION DISMISSED

In Mircom International Content Management & Consulting Ltd & Ors v Virgin Media Ltd & Anor [2019] EWHC 1827 (Ch) Mr Recorder Campbell QC (sitting as a High Court judge) refused an application on the grounds that the evidence was wholly inadequate.  The judge refused the claimants’ suggestion that there be an adjournment in order that it could file compliant evidence.

“Thus the defects in both the fact and expert evidence are so fundamental that I will dismiss these applications.”

THE CASE

The claimants were seeking an order that the First Defendant disclose the names and addresses of tens of thousands of subscribers who were accused of downloading pornographic films. The claimants were seeking to recover royalties on these viewings.

THE JUDGE’S COMMENT ON THE EVIDENCE

The judge considered the nature of the evidence the claimants had put in support of the application. That evidence was found wanting.

“The evidential points
Defects in fact evidence
    1. Virgin submitted, and I accept, that the fact evidence submitted by the Applicants was not of the standard which the Court is entitled to expect. By way of example:
a) Mr Hoffmann’s witness statement is dated 26th February 2018. In paragraph 1 he explains that Mircom seeks disclosure “of the names and addresses of the subscribers associated with the IP addresses listed in a spreadsheet attached as Exhibit 1″. But there was no Exhibit 1.
b) In a witness statement dated 26 June 2018, Mr Wagner purported to exhibit a spreadsheet marked “MWH1”, described as a spreadsheet setting out the IP addresses of subscribers for the period 27 February to the dates shown on the spreadsheet. This cannot be the same as Mr Hoffmann’s own intended Exhibit 1 since it post-dates Mr Hoffmann’s witness statement. Further this exhibit does not even set out any IP addresses, merely information including an “infringement ID” which appears to be date-related.
c) In any event even exhibit MWH1 is not what is sought. Mircom actually seeks the names and addresses of a spreadsheet which was sent to Virgin by email on 7 June 2019. This spreadsheet is not in evidence, nor is there any explanation of how it was produced.
d) Finally Virgin claimed there were a number of evidential difficulties in the new spreadsheets. For instance it was said that in some instances a film had only been partly downloaded, and that this meant there was no infringement; and in some cases the spreadsheet referred to films not tied to any licensee.
    1. The Applicants submitted these defects were merely “technical”. I accept this may be true for the fourth point, particularly since these difficulties only seemed to affect a few entries in the relevant spreadsheet. I do not accept this for any of the first three points which are in my view fundamental.
    2. I should say that the Applicants explained (and I accept) that their new spreadsheet was produced shortly before the hearing in view of the fact that Virgin Media’s data retention policy was retention for one year. This does explain why the Applicants did not press for the data apparently referred to in its witness statements, which are all well over a year old. It does not explain the lack of evidence to support the new spreadsheet.
    3. The Applicants also suggested that I could still grant relief on the basis of the approach set out in the Annex, which is essentially to replace the fact evidence complained of with new fact evidence. I deal with this below.
Defects in expert evidence
    1. Virgin made similar submissions in relation to the Applicants’ expert evidence. In my judgment this evidence is not acceptable either. By way of example:
a) Mircom relied on the evidence of Dr Sarre and Mr Fieser. Dr Sarre’s report is said to show that the software used to identify infringement, namely “FileWatchBT” is reliable. However Dr Sarre’s report was “commissioned by telephone” by a Mr Eichner on 1st April 2010, so the instructions are not documented and the report itself is dated 3rd May 2010. I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software.
b) There are a number of reasons why Dr Sarre’s report does not comply with CPR Part 35, but one is the lack of a statement of truth. I was shown a separate statement of truth dated January 23, 2014 (ie nearly 4 years after the report, and also over 5 years old today). This statement of truth refers at paragraph 5 to “the trial” but nobody seemed to know what trial, if any, Dr Sarre meant.
c) Mr Fieser gave a statement dated 20th December 2017 in which he claimed that FileWatchBT had not materially changed between 3 May 2010 and the date of his statement (which is, of course, over 18 months ago now). However Mr Fieser also said that this software was used to identify “the alleged infringing IP addresses and their acts of infringement set out in Exhibit 1 to Mr Hoffmann’s statement”. I have no idea what Mr Fieser meant by this since, as stated above, I have not seen any such Exhibit 1.
d) Golden Eye relied on the evidence of Mr Paige dated 19th August 2016, but if anything this is even worse. There is no statement of truth; no clarity as to what his instructions were; his evidence refers to static IP addresses, not dynamic ones; and his evidence appears to relate to a software program called “Observer”. Yet Mr Fieser gave a statement (also unsupported by a Statement of Truth) dated 1st December 2017 in which he seemed to think the software mentioned in Mr Paige’s report was called “International IP Tracker”. Virgin also drew my attention (without comment by the Applicants) to evidence from Ms Griffin, Senior Legal Counsel of Virgin, suggesting that Mr Paige was a former detective who was arrested and dismissed after receiving a controlled substance.
e) It also appeared that Golden Eye was no longer licensed to use the software (now called “IPP”) which it claimed to have used to identify the list of potential infringers.
  1. The last of these defects might be regarded as “technical” but the first four points are fundamental. The Applicants again proposed that I should grant relief on condition that they were allowed to replace their current expert evidence with new evidence.
  2. I do not accept this proposed way forward, particularly because I have not yet seen any of the proposed further fact or expert evidence. I appreciate that in the 2012 litigation Arnold J granted relief despite various defects in the evidence before him (see eg paragraph [30] thereof). However, I cannot believe by doing so in that instance Arnold J intended this to become the usual practice. On the contrary I consider it was all the more important for the Applicants to get it right this time round.
  3. Thus the defects in both the fact and expert evidence are so fundamental that I will dismiss these applications. If it is simple and straightforward as the Applicants say to prepare and serve acceptable evidence then this dismissal will not present them with any great problem. All they need to do is to correct what they have said are technical defects.
  4. I will in any event consider the remaining points, all of which were fully argued.”