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 wrongdoing.

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 considered.

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 Court.

On 13th April 2006 Transcom wrote to Gordon Dick challenging him to pursue his claim in court and promising to counter-claim in any action.

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 May 2006. The Sheriff Clerk set a return date of 20th June 2006 and a preliminary hearing date of 27th June 2006 at 10.30am 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 Sheriff 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 luck 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 in full and final settlement of his claim.

On 28th September 2006 Gordon Dick phoned Transcom's solicitors turning down the initial settlement offer and putting a counter-offer requesting:

  1. 1. an undertaking never to send unsolicited commercial email again.
  2. 2. an apology for sending the original spam and for making false allegations about Gordon's legitimate actions.
  3. 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 but explicitly refusing 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 spam. 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 for settlement. 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 parties.

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 debt.

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".