Denmark Productions Ltd v Boscobel Productions Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SALMON,LORD JUSTICE WINN |
| Judgment Date | 28 June 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0628-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 1968 |
[1968] EWCA Civ J0628-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Widgery)
Lord Justice Harman
Lord Justice Salmon and
Lord Justice Winn
Mr. ALAN CAMPBELL, Q.C. and Mr. MICHAEL KEMPSTER (instructed by Messrs. Syrett & Sons) appeared on behalf of the Appellants (Plaintiffs).
Mr. ROBIN DUNN, Q.C. and Mr. A.J. BATESON (instructed by Messrs Oswald Hickson, Collier & Co.) appeared on behalf of the Respondents (Defendants).
I will ask Lord Justice Salmon to deliver the first judgment
In December, 1964, there were three young men, Ray Davies, David Davies and Peter Quaife, who had been sporadically performing together for about two years in what is generally called a pop group. They were quite unknown to the public and had achieved no success. In December, 1963, they met Mr. Wace, engaged in advertising, and Mr. Collins, who was a stockbroker. Neither of these two had had any musical or stage experience. They were, however, most impressed by the group and considered that, if properly managed, the group might make a great deal of money for themselves and for their managers. A verbal agreement was reached between all concerned that Mr. Wace and Mr. Collins should manage the group in return for 30 per cent, of the group's gross earnings. The question was how to manage them? In order to solve this problem and to confirm their own judgment, Mr. Wace and Mr. Collins ceiled in Mr. Larry Page, a director of the plaintiff company, which was closely connected with a large American music publishing corporation called the Edward Kassner Music Publishing Corporation. Mr. Page also had had some experience as a singer and as a manager of pop groups. He was enthusiastic about the group's potentialities. Early in January, 1964, another young man, Michael Avory, joined the group. At about this time they assumed the name of "The Kinks".
Before the end of January, 1964, they had all reached an informal verbal arrangement that Mr. Wace and Mr. Collins or a company to be formed by them should together with Mr. Page become the joint personal managers of The Kinks and that Mr. Page or his company should receive 10 per cent, of The Kinks' gross earnings in addition to the 30 per cent, payable to Mr. Wace and Mr. Collins. What had been informally arranged was then put before a solicitor so that he might give it legal shape. He chose a curious and somewhat unfortunate method of doing so. Under his advice, separate written agreements were signed on the 12th February, 1964, by Ray Davies, David Davies and Peter Quaife andthe defendant company which had then recently been formed by Mr. Wace and Mr. Collins. Michael Avory signed an agreement in the same terms soon afterwards. Mr. Page was not a party to any of these agreements. On the 26th February, 1964, a written agreement was entered into between the plaintiff company and the defendant company to which The Kinks were not parties. It will thus be seen that there was no contractual nexus between any of The Kinks and Mr. Page or his company.
The agreements are of some importance and it is necessary that I should refer to their main provisions.
Agreements of the 12th February, 1964. The combined effect of clauses 1 and 14 was that each of The Kinks appointed the defendant company his personal manager for a period of five years from the 12th February, 1964. This period was, however, determinable by the defendant company giving 12 months' notice in writing at any time. The Kinks also had an option to continue the agreement for a further period of 5 years but this too was subject to the defendant company's right to determine at any time by 12 months' notice in writing. Under clause 2, The Kinks undertook not to enter into any professional engagements during the subsistence of the agreement without the prior consent in writing of the defendant company. Under clause 4, the defendant company undertook to advise The Kinks through its Board of Directors as to the contracts and engagements into which they should enter. Under clause 5, the defendant company undertook to use all resources and ideas reasonably available to promote the name and reputation of The Kinks and to appoint such agent or agents as it thought fit to arrange for their appearances. Clause 6 (1) provided that the publicity of The Kinks should be under the exclusive control of the defendant company. Clause 7 provided that The Kinks should be available at all times and attend regularly and punctually all appointments made by the defendant company for auditions, rehearsals and engagements, and that The Kinks should accept and act upon the advice of the defendant company. Clause 10 provided that the defendant companyshould be responsible for the publication and presentation of all scores, lyrics, tunes, melodies and music written or devised by The Kinks and that none of these should be published or presented by The Kinks or anyone also without the written consent of the defendant company. Clause: 12 provides that throughout the period of the agreement The Kinks' gross earnings should be collected exclusively by the defendant company; that 60 per cent, of these earnings should be paid by the defendant company to The Kinks in the manner specified and that the balance of 40 per cent, should be retained by the defendant company for its own benefit save for agents' fees which were to be discharged out of this 40 per cent.
None of the other provisions of the agreements of the 12th February, 1964, is material. When these agreements were signed each of The Kinks was just under 21 years of age.
Agreement of the 26th February, 1964. Clause 1 provided that the plaintiff company should, through Mr. Larry Page, act jointly with the defendant company as manager of The Kinks in the same manner and to the same extent and subject to the same liabilities as if the plaintiff company had joined in the agreement of the 12th February, 1964, as manager jointly with the defendant company. Clause 2 provided that the agreement of the 26th February, 1964, should subsist for the duration of the agreements of the 12th February, 1964. Clause 3 provided that during the subsistence of the agreement of the 26th February, 1964, the defendant company should pay the plaintiff company by way of remuneration for its services there under 10 per cent, of The Kinks' gross earnings. Under clause 6, the defendant company assigned to the plaintiff company all its rights of placing any musical compositions or lyrics written wholly by The Kinks or any of them. None of the other provisions of the agreement of 26th February, 1964, is material.
There is no doubt, as the learned judge has found, that although The Kinks may not have been familiar with all the details of these agreements they understood their contents broadly andapproved them. Indeed these written agreements did no more than put into legal form, rather clumsily, what The Kinks had previously accepted. In my view The Kinks were bound under the agreements of the 12th February, 1964, to allow the defendant company to carry out most of its managerial obligations under that agreement through Mr. Page. Indeed this is what happened for about 18 months until July of 1965. The defendant company's managerial duties under the agreement could be carried out only by some person. Clause 4 of the agreement designates the defendant company's directors as the persons to carry out certain advisory duties. The other clauses of the contract are silent as to the persons who should carry out on the defendant company's behalf the managerial duties to which they refer. The defendant company would have been entitled to appoint any competent person to carry out these duties. It was, however, understood that they would carry out most of these duties through Mr. Page; and they did so. The office work in relation to The Kinks' activities was carried out by the defendant company as soon as it obtained office accommodation, but their public relations and stage management were largely in the hands of Mr. Page. They achieved a spectacular success and their earnings grew from virtually nothing to about £90,000 a year. No one disputes that Mr. Page played a big part in helping them to achieve this success. During this period they toured Great Britain, Australia, Scandinavia and elsewhere. Mr. Page did not accompany them on these tours, but he did on one occasion fly over to Paris to watch their performances there.
The Kinks were an extremely volatile group of young men. Early in 1965, at Cardiff, a fight broke out on the stage between two of them. Mr. Page, who happened to be present, intervened successfully and restored peace. Not the least temperamental but certainly the most talented member of the group was the leader, Hay Davies. He composed a song for the group in 1964 which when recorded by them achieved world wide popularity with those to whom such compositions appeal.
In the Spring of 1965, Mr. Page had been advised by representatives in the United States of America that if the very large market for, The Kinks' records in that country was to be fully exploited, it was necessary that they should take part in an American tour. The Kinks showed no enthusiasm for this project. Apparently they had given some performances in that country on their way home from Australia and had not enjoyed the experience. Moreover, Ray Davies was not satisfied with the financial results of that American visit and was apparently apprehensive of the attitude which might be adopted by the American police if there were any repetition of the sort of incident which had occurred in Cardiff. In May, however Mr. Page finally succeeded in persuading Ray Davies and the other members of the group to undertake the proposed American tour. It...
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