PROVING THINGS 56: A JUDGE WILL NOT SPECULATE WHEN MATTERS COULD HAVE BEEN PROVEN: COUNTERCLAIM FAILS FOR LACK OF EVIDENCE
The judgment of Mr Recorder Douglas Campbell QC in Starbuck -v- Patsystems (UK) Limited  EWHC 397 (IPEC) illustrates issues in relating to recollection and credibility, it is another example of a claim (counterclaim in this case) failing because of a lack of basic evidence.”
“In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence… and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.”
“… I accepted that Mr Starbuck’s evidence was reconstruction rather than recollection. However, people who reconstruct events will very often believe that their reconstruction is a genuine recollection; and in my judgment, Mr Starbuck was one of these people.”
The claimant brought an action alleging that he owned the copyright in a number of versions of computer software. The defendant alleged that the copyright had been assigned and counter-claimed for the claimant’s breach of their copyright.
ASSESSMENT OF THE WITNESSES
i) First, it said that he had forgotten what actually happened in the key period (which was 1997-2001) and that his purported recollection was actually a reconstruction. I agree with this criticism, and I will take it into account.
ii) Secondly it also submitted that Mr Starbuck was dishonest. When I pressed Patsystems to explain the basis of its allegation that Mr Starbuck was dishonest, the only basis given by Patsystems was that Mr Starbuck said he remembered things when actually he did not. I reject this allegation. As I have explained, I accepted that Mr Starbuck’s evidence was reconstruction rather than recollection. However, people who reconstruct events will very often believe that their reconstruction is a genuine recollection; and in my judgment, Mr Starbuck was one of these people.
FAILURE OF THE COUNTERCLAIM
The defendant did not adduce any expert evidence in relation to the claimant’s alleged breach of copyright.
“The ACE issue – Analysis
Mr Starbuck submitted that Mr Cook’s inspection showed very little; that Mr Starbuck was not obliged to provide disclosure of his source code, that it was up to Patsystems to prove infringement; that in the absence of any source code in evidence, the counterclaim must inevitably fail; that ACE had lots of additional functionality and code not found in NSA; and that the passage of cross- examination mentioned above went no further than showing reproduction of ideas, if it even showed that.
I agree that Mr Cooks’ inspection is insufficient per se. All this showed was that very minor amounts of code appeared to have been reproduced in 2 of the 76 programs. It may be that the 76 programs selected for inspection on that occasion were not representative of the whole of ACE but the time to take that point has long gone.
I am more troubled by Mr Starbuck’s failure to disclose the source code. However it seems to me that the real reason why the source code is not before me is because Patsystems failed to take the opportunity given to it by HHJ Hacon at the case management conference to press for inspection thereof until it was too late. Moreover I was told that Patsystems never warned Mr Starbuck that it would ask for an adverse inference to be drawn against him if he did not disclose it.
I do not agree that the absence of source code is in itself determinative of non- infringement, as Mr Starbuck submits. If there is alternative evidence on which the Court can properly find infringement, the lack of source code does not matter. Furthermore the presence of additional functionality in ACE having nothing to do with NSA is neither here nor there.
The key question to my mind is whether the cross-examination gets Patsystems home. The high point is Mr Starbuck’s statement that “I am sure there are lots of modules that would be very, very similar However although Mr Starbuck refers to “modules “, he also seems to be thinking about “building blocks “, and he does not explain what he means by either. Prima facie this sounds more like ideas than the expression of ideas.
In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence, such as an expert report based on actual source code comparisons, and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.
Mr Starbuck’s action for copyright infringement fails because Patsystems owns the copyright in all versions of NSA pursuant to the 1999 Assignment, including in particular version 3.1. The counterclaim fails because Patsystems has not proved that the ACE software used by Mr Starbuck infringes such copyright”
RELATED POSTS: THE PROVING THINGS SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.
- Proving things 48: valves, floods, models and causation.
- Proving things 49: it is difficult to prove damages when the opinion evidence in your witness statement has been struck out.
- Proving things 50: to prove breach of contract you first have to prove that there was a contract.
- Proving things 51: No evidence of loss – no damages
- Proving things 52: Solicitor’s negligence action fails on all counts: no negligence and no loss.
- Proving things 53: dishonesty some of the times doesn’t mean dishonesty all of the time.
- Proving things 54: getting £2 in damages after claiming £15 million.
- Proving things 55: I’ll say it again: No evidence – no damages.