Gordon Dick v Transcom Internet Services Ltd.
A successful case in Edinburgh Sheriff Court
The notes on this page were written throughout the case. We believe
this was the first case in Scotland under this law and the highest
damages an individual has won in the UK.
The initial spam.
On 27th February 2006
Transcom Internet Services Ltd (Transcom)
of Chiltern House, 45 Station Road, Henley on Thames, Oxon. RG9 1AT
sent an advertising email to 72,653
email addresses (figure
supplied in email by Transcom). Two of these email addresses were
private individual email addresses of Gordon Dick. Other addresses
that were known to have received the email had also taken part in
discussion on a private opt-in only mailing list belonging to another
company. There was a request from another member of the list to
remove Transcom's access to receieve emails from the mailing list
since they were harvesting email addresses for the sending of spam.
(NB: William Smith, the sole director of Transcom Internet Services Ltd
is also a director of Transcom ISP Ltd, Transcom Satellite Services
Ltd, Nowdance Ltd and Design Technology Ltd which trades as Transcom
ISP, all of which are based at the same address.)
On 28th February 2006
The mailing list owner wrote to list to
confirm that Transcom's access to receive emails had been discontinued
and requested individuals that were spammed to supply copies to the
list owner. The same day one of the list contributors forwarded a
quotation from Transcom's internet provider to the list
owner confirming that Transcom had been given a first and final
warning for sending unsolicited commercial email.
The attempt by Gordon Dick to put matters right.
Giving the spammers the chance to put things right.
On 10th March 2006
Gordon Dick, wrote to Transcom Group of
Companies (a number of Mr Smith's companies, as mentioned above,
appear to trade under the Transcom name) asking for confirmation on
which of the Transcom companies was responsible for the emails. The
letter also requested any reasons Transcom believed they had not
broken the Data Protection Act and the Privacy and Electronic
Communication Regulations in sending the email and required them to
cease processing his personal data and erase any data they held about
him as well as putting them on notice legal proceedings would be
On 15th March 2006
Gordon Dick received a reply from Transcom
confirming that they had sent the email to 72,000 individuals, of whom
they had 2 complaints. They alleged the email addresses were legally
collected and the advertising email was legally sent. They challenged
Gordon to take legal action and promised to defend regardless of cost.
They also made false allegations with regards to Gordon's actions to
the list owner.
A final chance.
The letter before action.
On 11th April 2006
Gordon Dick wrote to Transcom noting their
failure to confirm compliance with requests in his letter of the 10th
March 2006 and highlighting that they had made false allegations
against him to others. Gordon put them on notice that he would claim
damages of up to £750 under the Privacy and Electronic
Communications Regulations and the Data Protection Act (DPA) for spam,
breach of the Data Protection Principles, breach of statutory duty
under the DPA and distress in relation to those damages under the DPA.
He once again required Transcom to cease processing and destroy
personal data they held on him and to undertake never to send
unsolicited commercial email again. They were given seven days to
respond appropriately or action would proceed in Edinburgh Sheriff
On 13th April 2006
Transcom wrote to Gordon Dick challenging
him to pursue his claim in court and promising to counter-claim in any
Legal proceedings and failed settlement negotiations.
On 3rd May 2006
Gordon Dick went to Edinburgh Sheriff Court and
submitted a Small Claim Summons
and paid the filing fee of
£39 by cheque. The Sheriff Clerk stamped the summons as lodged on 9th
. The Sheriff Clerk set a return date of 20th June
and a preliminary hearing date of 27th June 2006 at
on the 10th May 2006.
On the 21st June 2006
the Sheriff Clerk informed Gordon Dick that
Transcom were defending the action. Gordon Dick then requested
the list owner supply their additional documentation for the courts benefit
on the facts surrounding the mailing lists and the abuse of
them for the courts benefit. The list owner wrote to Gordon the same day
with the details.
On the 22nd June 2006
Transcom's solicitors, wrote
to Gordon Dick informing him they were acting for Transcom and stating
their written defence. The defence admitted the defender's identity
and the jurisdiction of Edinburgh Sheriff Court but denying the rest.
Despite the earlier threats, no counter-claim materialised.
On 27th June 2006
Gordon Dick and Transcom's solicitors
appeared in Edinburgh Sheriff Court at the preliminary hearing.
Transcom's representatives tried to play up the fact that Gordon had
not detailed how he had calculated the £750 claimed, Gordon
apologised to the Sheriff for this but the Sheriff said there was no
need to apologise and that he could not have been expected to have
known to do that as he is not a lawyer and it was not a problem for an
individual representing themselves to have not done so.
Transcom's representative admitted Transcom sent the emails but
belittled the suggestion any damage could have possibly been caused by
receiving a spam email. This did not appear to play well with the
and he requested the case should go to the court run mediation
service to try to settle before a full hearing. Gordon Dick was quite
happy to do so, Transcom's representative indicated their client felt
this was a point of principle and they would not wish to go to
mediation. The Sheriff highlighted this could be an expensive
principle to hold and as Gordon seemed happy to go to mediation
Transcom should do so. Transcom's representatives agreed to go to
mediation on 19th July 2006 at 10am and a proof hearing was set for
4th October 2006 at 10am in case settlement had not been reached.
In ending the preliminary hearing the Sheriff
asked Gordon if
he was getting sufficient legal advice on the case and wished him
in the case. Gordon took this and the Sheriff's attitude
towards Transcom as very positive signs in his case.
Within a few of hours of leaving court the court appointed mediator
called Gordon Dick to inform him that Transcom had pulled out of the
mediation and therefore the proof hearing would go ahead on 4th
October 2006. Gordon was disappointed with Transcom's refusal to
attend mediation however he was content his case would stand up to
court scrutiny at the forthcoming hearing.
On 19th September 2006
Gordon Dick lodged 24 detailed
documents of evidence, case law and guidance from the Information
Commissioners Office, required for his case with Edinburgh Sheriff
Court and sent a list of the evidence to Transcom's solicitors as
required by the small claims procedure. The documents provided a
clear signal that the case had been thoroughly researched and prepared
with relevant case law and an intention to maximise damages won.
On 26th September 2006
Transcom's solicitors wrote to Gordon
Dick offering an out of court settlement of £500
and final settlement of his claim.
On 28th September 2006
Gordon Dick phoned Transcom's
solicitors turning down the initial settlement offer
putting a counter-offer requesting:
- 1. an undertaking never to send unsolicited commercial email
- 2. an apology for sending the original spam and for
making false allegations about Gordon's legitimate actions.
- 3. settlement in full of his claim of £750 plus expenses (a
total of £864).
Gordon highlighted his case was fully prepared, well researched, and
he was convinced he would win a court judgement and had nothing to
lose by proceeding in court.
On 3rd October 2006
Transcom's solicitors called
Gordon Dick and informed him they had not fully prepared for the case
and Transcom could not send anyone to the hearing but offered to
settle the claim in full at £750 plus expenses
, giving a
final total of £864
to give an undertaking to not send
unsolicited commercial email again or to give an apology for their
actions. Gordon highlighted it was priceless for a company selling
anti-spam solutions to refuse to give an undertaking to not send
When queried why, it was suggested it was a face saving
measure and it is not possible to sue for an apology or undertaking.
As the small claim was settled in full Gordon was happy to accept
settlement of his court claim in full but remained disappointed no
undertakings or apologies were given for their actions.
On 4th October 2006
Gordon Dick and Transcom's solicitors
appeared in Edinburgh Sheriff Court and requested the case be
continued to 17th October 2006 at 10.30am
Gordon was told he would receive the settlement cheque by the end of
the week, and Transcom's solicitors agreed that provided settlement
was complete and monies cleared by 17th October they would be willing
to appear "of consent" to discharge the court action on behalf of both
On 10th October 2006
Gordon had still not received the
settlement cheque so he phoned Transcom's solicitors who
informed him they were expecting a bank transfer into their account
that day and then a solicitors cheque would be sent out that night.
On 12th October 2006
Gordon had still not received the
settlement cheque so he called Transcom's solicitors once
more who informed him they were still expecting imminent receipt of
the settlement and then a cheque would be sent out. It was suggested
to Gordon that the delay was that of the spammers Bank who allegedly
take 5 days to verify payee details before a BACS transfer could be
processed. Transcom's solicitors did not seem very sure
in their description of this problem but reiterated they expect the
spammers to pay in full before the hearing on the 17th October.
Gordon highlighted he would not tolerate the case wasting his time and
going on forever as the defender appeared to be trying to achieve.
Transcom's solicitors pointed out it was their client
and not themselves that were delaying things.
On 16th October 2006
Gordon once again spoke with Transcom's
solicitors who still said they had not received payment from the
spammers but reiterated they expected a cheque to be in Gordon's hand
before the hearing on the 17th October either by means of a CHAPS
transfer to their account that day and issuing a solicitors cheque or
special delivery by 9am of a cheque overnight. Gordon pointed out
that the spammers were beginning to make Transcom's solicitors look a
little stupid in believing them. They did not deny that statement.
On 17th October 2006
Gordon and Transcom's solicitors appeared
at Edinburgh Sheriff Court for the continued hearing. Gordon was
advised that settlement was still not forthcoming from the spammers
prior to the start of the hearing.
Gordon started by stating to the Sheriff that at the preliminary
hearing the court set a mediation date and a proof date and pointed
out that as the defender pulled out of mediation it did not take
place, and the day before proof he was offered full out of court
settlement hence the continuation but that has not materialised and
they now appeared to be wasting Gordon's time and the courts time.
The defenders solicitors agreed Gordon's account of events was
factual and stated that they still expected it to be settled but did
not yet know what the problem has been.
The Sheriff stated he wanted to award Gordon decree but he did not
think he was able to but had to set a date for the proof. He
highlighted that because their behaviour had been unreasonable Gordon
could claim expenses as if it was a summary cause action and should
look into adding that up. He also asked the clerk to find a busy day
in the court diary to make sure their solicitors costs added up while
they had to sit in court waiting for the case to be called.
The Sheriff asked the basis for Gordon's claim and he explained it was
breach of the Data Protection Act and Privacy and Electronic
Communications Regulations in sending unsolicited commercial email at
which point the Sheriff said "good for you".
On 19th October 2006
Gordon wrote to Transcom's solicitors
giving notice that if settlement was not made by 14th November 2006
then Gordon would push ahead at the proof hearing asking for decree to
be granted in his favour and that expenses would be claimed at the
summary cause level as recommended by the Sheriff.
On 5th December 2006
Transcom's solicitors wrote to
Gordon to inform him that they were withdrawing from representing
Transcom as they had failed to receive instructions on how to proceed
in the case.
On 6th December 2006
Gordon appeared in Edinburgh Sheriff Court
for the proof hearing, Transcom were not there and were not
represented. Gordon explained the situation as he understood it and
requested that the Sheriff grant decree in his favour (£750 plus
8% interest per annum in damages) and to award expenses at the summary
cause level. The Sheriff agreed to both requests. The diet of
assessment was set for 18th January 2007 at 10am, with the diet of
approval set on 30th January 2007 at 10.30am.
On 28th December 2006
Gordon lodged his expenses claim with
Edinburgh Sheriff Court.
On 5th January 2007
Gordon sent a copy of his expenses claim to
Transcom by recorded delivery. The Royal Mail reports it as being
delivered on 8th January 2007
On 17th January 2007
Gordon received a reply from Transcom
saying they could not respond directly to his expenses claim as the
issue is before the court.
On 18th January 2007
Gordon attended the diet of assessment at
Edinburgh Sheriff Court. Transcom were not represented. The Sheriff
Clerk made only minor corrections to Gordon's expenses claim. They
were then cut by the normal percentages for party litigants and
damages claims under £1000 to arrive at the final assessed
expenses figure of £618.66.
On 30th January 2007
Gordon appeared in Edinburgh Sheriff
Court. Transcom were not represented. Gordon requested final decree
(£750 plus 8% interest per annum in damages) with expenses, as
assessed, in the amount of £618.66. The Sheriff replied "yes".
On 13th February 2007
Gordon phoned Edinburgh Sheriff Court to
check if an appeal had been lodged. The Sheriff Court confirmed no
appeal had been lodged and therefore the extract decree would be
posted on the 14th February 2007.
On 15th February 2007
Gordon received the extract decree in
writing from the court. He wrote to Transcom that day demanding
payment in full or enforcement action would proceed adding to their
On 23rd February 2007
a debt collector called Transcom on
Gordon's behalf. The director, Mr William Smith, refused to advise
when he would pay the debt. Until this day the companies listed on
www.transcom.net as if they were trading there were - Transcom
Internet Services Ltd, Transcom ISP Ltd and Transcom Satellite
Services Ltd. By 26th February 2007
this had changed to state
Design Technology Ltd, a company that Mr Smith is also a director of.
On the 26th February 2007
Gordon wrote to Transcom reminding
them of their debt.
On 2nd March 2007
Transcom wrote to Gordon stating their
company was set up "purely for the purpose of promotional activity
relative to Internet business".