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Using criminal law evidence in civil proceedings

United Kingdom
28/02/2005
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In 2002, two individuals were convicted in the criminal courts for conspiring to defraud Microsoft by dishonestly dealing in counterfeit Microsoft software. Microsoft subsequently took civil action against the two individuals and, in applying for summary judgment, attempted to use evidence of the criminal convictions to show that the defendants were liable in civil law.

At the summary judgment hearing, the Judge held that evidence of the criminal convictions could be used and was sufficient to establish the civil liability of the defendants. In the circumstances, there was no real prospect of the defendants successfully defending Microsoft’s claim that they were liable for infringing Microsoft’s copyright and trade marks, and for passing off.

However, Microsoft was not successful in obtaining an interim payment order against the defendants. None of the criminal evidence went to the amount of any profits the defendants had made in selling counterfeit products. In particular, Microsoft were unable to prove, and the criminal evidence did not show, the proportion of products sold by the defendants which were counterfeit.

This article first appeared in our Technology Annual Review, March 2006. To view this publication, please click here to open a new window.

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