Microsoft Corporation v (1) Akbal Alibhai (2) Nabil Bakir

Date

3 December 2004

Legislation

s.11(2) Civil Evidence Act 1968

Keywords

Convictions; Summary Judgment; Criminal Convictions as evidence in Civil Actions; Interim payment

Counsel

Anthony Peto for Microsoft, Defendants appeared in person

Solicitors:

Mischon de Reya for Microsoft, Defendants appeared in person

Judge:

Park J.

Court:

High Court (Chancery Division)

Reported:

[2004] EWHC 3282, LTL 31/12/2004 (unreported elsewhere)

Summary

s.11(2) of the Civil Evidence Act 1968 states:

"In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom…

he shall be taken to have committed that offence unless the contrary is proved, and

without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment, or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose."

Microsoft claimed for damages for copyright and trade mark infringement, passing off, and for an interim payment. The Defendants had already been convicted at Reading Crown Court of conspiring to defraud Microsoft by dishonestly dealing in counterfeit products bearing Microsoft’s registered trade marks. Microsoft attempted to rely on these convictions and on s.11(2) of the Civil Evidence Act 1968 and argued that they raised a presumption that the Defendants were liable for the wrongful acts being alleged against them.

Decision

• The convictions along with s.11(2) established in the civil action, that there was a conspiracy to defraud Microsoft by dishonestly dealing in counterfeit Microsoft products. The defendants were thus liable in the civil proceedings and are necessarily liable to Microsoft and have no real prospect of defending the claim brought against them.
• However the convictions did not provide sufficient evidence as to the quantum of damages and therefore Microsoft was not entitled to an interim payment.

Accordingly, the application for summary judgment was granted but the application for an interim payment refused.