Saturday, 4 June 2011

ACS:Law, Davenport Lyons and the Ability of Solicitors to Self-Regulate

So, it’s Friday, time for the weekend and just over half way through the Solicitors’ Disciplinary Tribunal (SDT) considering the conduct of Davenport Lyons lawyers Gore and Miller.

This morning the SDT also played host to Andrew Crossley who was listed for a ‘directions’ hearing. Essentially this means sorting out some housekeeping business so that everyone knows how the next stages will play out.

Andrew’s hearing was due to start at 9.30am but actually didn’t kick off until 9.45am. A representative from consumer group Which? who’d been present at 9.30am was told by court staff that it didn’t start until 10am and thus ended up missing the first 15 minutes (when the key substance of the hearing was itemised). Thankfully, Peter Steel, the solicitor heading the disciplinary action for the Solicitors' Regulation Authority, was kind enough, when asked during a break in the proceedings, to re-enumerate the points. More on those and the outcome later on.

Meanwhile, on to the one-day slice of the seven-day hearing that is Gore and Miller’s conduct under the microscope.

Today was concerned with expert testimony (and toward the tail end of the afternoon, the refuting by the counsel for Gore and Miller of the key grounds for disciplinary action). It was evident that there had been, earlier in the week, other (‘non-expert’) witnesses in the shape of some of those innocents accused in the speculative invoicing scheme that the two solicitors have created and pioneered. Some might argue that they are actually likely to be the most ‘expert’ of all those that the court will hear, but they were all done with prior to today.

Today it was the turn of two expert witnesses who had worked together and produced a report that they agreed upon. The witnesses were then each cross-examined in order to find the subtle (or not so subtle) differences in their opinions. An expert witness had evidently been supplied by each side. Andrew Clark had been retained for the SRA and Professor Peter Sommer for Gore and Miller.

Clark was first to stand and was questioned by each of the barristers: Tim Dutton QC for the SRA and a gentleman whose name I didn’t catch for Gore and Miller. The lady from Which? that was present and myself both used the same word to express our opinions of his testimony: ‘measured’. He did really only say exactly what he wanted to and was evidently very well briefed. Very experienced as an expert witness, Clark has worked on over 100 (albeit criminal) cases with these sorts of issues. He’s also worked extensively with the Federation Against Copyright Theft (FACT).

Sommer was a ‘chattier’ gentleman but in so doing was more inclined to express a personal opinion outside of the plain facts of the case. As a professional expert witness his lack of bias or otherwise was questioned by Dutton for the prosecution. The answers Sommer gave certainly created, at least to this observer, a distinct impression of bias.

When asked about the evidential reliability of the systems and data supplied by DigiRights, Sommer volunteered that they were, he thought, adequate for the writing of a ‘first letter’; despite having not been asked any question framing it in such a manner - but obviously a viewpoint Gore and Miller would be happy for the court to hear.

He did appear to be very much framing answers in a the manner of a politician, answering the questions he (or the defence) would have hoped to have been asked, rather than strictly providing the strictly factual responses which would have been appropriate.

I found myself repeatedly flinching at the inadequacies of the ‘expert’ testimonies even despite my own limited knowledge of the technologies and processes under discussion.

There was repeated discussion of the immediate re-sharing of ‘pieces’ of data in a bittorrented file. I was resigned that the technical possibility of a leeching-only bittorrent client was not even going to be mentioned. It was 12.43pm before the possibility eventually got mentioned in a chance exchange.

There were other alarming evidential discussions which caught my attention:

There was considerable discussion about the size of game and film files (ie. generally comparatively large files) and the time taken to download these. This was discussion in the context of the plausibility or ease with which a person (other than the subscriber) using a connection for unlawful filesharing might be discovered by the subscriber.

Repeatedly it was stated (by both experts) that a game or film file would take ‘many hours’ to download. An exchange took place discussing a hypothetical download whereby the connection at a café might be used for the downloading of such a file. The expert witnesses contended that it would take ‘many, many hours’ to do so and would effectively be implausible. That was bad enough (I’ll explain why in a moment if you didn’t already catch on)...

A while later, one of the tribunal members asked of the experts if it was possible to make the download in parts; in other words, if the download of a game could be started in one place then paused and continued elsewhere. Someone’s thinking, I thought! – the very possibility I’d mentioned to my neighbour in the courtroom. To my horror though, Sommer responded that while it was ‘theoretically possible’ in practical terms it would not stating that instead of ‘many hours’ you’d be talking about ‘weeks’ to complete the download!

What neither ‘expert’ witness observed, and which is the reason I’ve made use of those inverted commas around that word, is that the speed with which a bittorrent download completes is highly dependent on the number of peers making that file available. THIS MASSIVE AND FUNDAMENTAL FACT WAS NEVER MENTIONED! In fact, if a plentiful supply of people are making a file available then the only limits to your download speed are likely to be either the settings in your bittorrent software or the limited bandwidth of your internet connectivity. The suggestion that it would take ‘weeks’ to complete even a large download simply because you chose to make the download in several stages at different locations is absurd and erroneous – and in expert testimony, sworn under oath in a courtroom that’s simply not good enough.

The lack of consideration given to the number of peers sharing a file also led to the stated misinformation that downloading a large file (such as a game or film) takes longer than a small file (such as a single audio track). In fact an obscure MP3 might take far longer to download than a freshly pirated and widely shared game. The tribunal knows none of this – and that’s a third of the reason I’ve titled this blog post as I have. This tribunal isn’t effective because the evidence it’s hearing (and I’ve only seen one day of seven) is flawed. How can it be just? How can it be effective regulation of the profession if it’s based on incorrect testimony?

The second third of my concerns comes back to some further examples of Sommer’s apparent lack of impartiality.

Sommer at one point suggested that, given that the identified IP address (upon which letters of claim were based) can only identify a router/subscriber and not an infringing individual, that it ought to be down to the subscriber to ask of his/her ‘near neighbours’: “Have any of you got file sharing software? Have any of you been – quote unquote – ‘naughty’?” Quite how such an assertion is within his remit as an 'impartial' expert witness is beyond me. He also seems to have overlooked how entirely inappropriate it might be for a person to ask of their neighbours if they’ve been piggybacking their internet connection for the purposes of downloading pornography. Would he really expect an honest answer if they had; and would he really expect to speak to those neighbours ever again even if they hadn’t?

Sommer’s final calamity came when he so readily agreed with an ‘explanation’ to a problem presented by one of the panel of the tribunal. She drew attention to a letter of claim sent by Davenport Lyons and asked how it would be possible (there having been earlier discussion of potential reasons for misidentification of letter recipients as infringers) for there to be FOUR IP addresses associated with the SAME SUBSCRIBER (and indeed listed in the letter) at the SAME MOMENT IN TIME. The moment-in-time part of the question didn’t get posed until the late stages of the enquiry and it was apparent that Sommer was going to rely upon dynamic IP addressing for his reply. When she pointed out that all four addresses were given the same time stamp he was momentarily stumped until the counsel for the defence volunteered ‘mistranscription’ as an explanation which Sommer went on to swear under oath as a reasonable explanation.

Bearing in mind that Davenport Lyons sent 6113 letters of claim I consider it unlikely that the IP addresses and times were manually transcribed. I’ve never yet seen a mail merge that was capable of ‘mistranscribing’ anything; certainly not something which would account for an error of this nature. Far more likely an explanation in my mind is a poorly managed spreadsheet, erroneous data collection or a malfunctioning untested version of a certain proprietary monitoring software.

The final third of my concerns about the failure of the SRA to regulate the profession falls to timing. It’s now June 2011. How slow can this process be? It’s all far too little, far too late. It’s not ‘regulation’ at all. To regulate something is to control something; to prevent it from doing what it otherwise naturally might.

The reliance of the Solicitors’ Regulatory Authority on the Solicitors’ Disciplinary Tribunal to keep its members in check is ineffective. If they were called the Solicitors’ Disciplinary Authority it might be a match of name to function, but as it stands it is not. Punishment after-the-fact is not helpful and does not protect the public from the likes of Gore, Miller and Crossley. All of the hurt, harassment  and damage caused by these individuals were caused in the past – years in the past (though continue to affect individuals). The years taken to try to address these problems, coupled with the glaring lack of efficacy of the process itself can only mean that the SRA and the legal profession are failing badly to self-regulate.

I wanted to end on some good news to this post. So I’m happy to report some positive outcomes from the Andrew Crossley directions hearing.

It transpires that the application for directions was actually brought by him (rather than the SRA - the prosecution). He had a number of requests which he wanted the court to order. They were:
  1. He wanted SRA to fund his costs (as he’s lacking finance and was afraid he’d suffer an ‘inequality of arms’ against the SRA’s budget for his prosecution apparently set at £85k)
  2. He wanted to exclude all expert evidence, again on the grounds of expense
  3. He wanted an order to prevent the SRA making any further requests for disclosure of documents from him
  4. He wanted copies of all of the files concerned with the current Davenport Lyons (Gore / Miller) tribunal and…
  5. …a delay on proceedings on his case at least until the DL tribunal is concluded.
The tribunal did extend slightly some of the timescales (for the exchange of documentation) from the dates initially suggested by the SRA. There are a whole list of dates they have now ordered starting from the 30th June (tribunal to be in receipt of statement setting out facts and matters in dispute) right through to 30th September (content of court paper bundles agreed). The final pre-court stage will take place no less than ten days prior to the hearing and that will be the submission to the tribunal of the skeleton arguments (ie. the outline cases, pre-court-cross-examination).

These dates make it very apparent that the hearing is likely to be some time early to mid October, so keep your eyes peeled.

As to the outcomes of Crossley’s five applications for directions: every single one was refused. No SRA funding, no exclusion of expert testimony, the SRA are free to request disclosure of further documents from him, he can’t have the Gore/Miller documents and there can be no unwarranted delay just because the Gore/Miller case is ongoing.

At least they did something right eh.


  1. Excellent post. Thanks for keeping us up to date.

  2. Thanks for this. (I was going to put my name but the login to become a blogger was onerous)
    Will you or Which send in your obsrvations, this post, as a "friend of the court"? I have come across errors, lies and omissions in presenting the whole truth to courts, and believe we all have a duty to help the justice system get it right.

  3. Riveting, compulsive and brilliant.

  4. If I were a member of the tribunal, I might be swayed by the 'weeks to download' if it weren't chanllenged/corrected, as it might convince me that it's right to 'blame the subscriber'. I don't imagine the Capsticks partner or Counsel for the prosecution read your blog, so why don't you email them with your views on downloading times, as a sort of 'amicus curiae' brief. Otherwise, forum members and blog writers are all just talking to each other rather than to the lawyers running the SDT hearing. I would do it but I don't have an IT background and wouldn't sound convincing.

  5. Thank you for the comments.

    Just so that you're all aware, I've just a few minutes ago sent off an email to Peter Steel at Capsticks raising my concerns and pointing him in the direction of this post.

    I've made it known that he's very welcome to contact me if I can help at all. Not sure if it'll do any good, but we tried!

  6. I hope that the panel aren't swayed by this Sommer 'expert' as what was the point in all us witnesses putting ourselves through all that? Thank you Will for keeping us informed.

  7. Thanks Will. It's good to know you contacted Peter Steele. Better to try than just keep writing to each other.

  8. I am really grateful that you have taken the time to report in such detail.

    Regretably I have zero confidence that this SRA hearing will conclude with anything more than a slap on the wrist.

    Silly idea, I know, but it seems to me that Judge Birss QC would have made an ideal expert witness as he has clearly gone to the bother of learning factual information. He does seem to see things as they really are.

    I spotted a typo - you say "hade" which should be "made" in paragraph 17.

  9. Excellent post and just to re-itterate this is exactly the type of information we need to keep up to date, it's shame it hasn't been republished more widely by people like the