Evolving a Culture of Damages

On the first of this month, I had the opportunity to address IP academics and researchers as part of NLU Delhi’s Fifth Annual IP Teaching Workshop on criminal law and intellectual property. During the course of my talk, I happened to touch upon certain aspects of civil IP litigation, in particular the issue of damages in suits for IP infringement. In this post, I shall share the gist of my talk on the topic.

In suits for IP infringement, while parties routinely duke it out on interim injunctions and other interlocutory reliefs, the enthusiasm and appetite for earnest and expeditious prosecution of trial is largely found wanting. But then I guess this could be said of civil litigation in India in general, with contractual litigation being a possible exception to this norm. Perhaps an attitudinal change to civil litigation may be brought about if Indian Courts evolved a rigorous culture of damages. After all, if parties know that they are bound to recover their legal costs and more should they succeed, there is no reason to assume that their vision and legal strategy will not go beyond the T20 round of interim reliefs. So how does one bring about a culture of damages?

I believe that the best of judicial outcomes are the product of sound assistance from the Bar. Therefore, if parties, through counsels, lead cogent evidence on damages by practically applying the various theories of damages, instead of merely parroting a handful of oft-quoted principles or blindly reproducing their pleadings, Courts might find it easier to award damages on a rational basis. In the absence of hard evidence or a reasoned basis, a Court has no other option but to award an arbitrary and nominal figure or nothing. More often than not, evidence affidavits of parties contain very little by way of explanation and evidence for the damages sought. It is erroneously assumed that the evidentiary burden on parties is limited to proving their respective substantive contentions on validity and infringement of a right, even when damages have been prominently sought as one of the reliefs in the suit.

It is almost as though Section 12 of the Evidence Act, 1872 does not exist. According to the provision, in suits in which damages are claimed, any fact which enables the Court to determine the amount of damages which ought to be awarded, is relevant. And relevant facts on the relief of damages have to be proved by the party claiming it. One decision which discusses damages in some detail in the context of copyright infringement is IPRS v. Debashis Patnaik by the Delhi High Court. This judgement is a must-read since it contains a fair degree of discussion on nominal, compensatory and exemplary/punitive damages based on a host of decisions from the UK, US and a few Indian decisions. That said, the reality is that such judgements aren’t the norm and this needs to change. One possible reason as to why our damages jurisprudence hasn’t matured much is because our law schools do not equip students with the empirical tools they need to apply theories of damages to the factual matrix of a case. It would help if IP practitioners, academics and researchers could come together to find workable solutions for such practical challenges.

Comments and suggestions are welcome.