Dennis Michael Seaton and Others v Anthony Seddon and Others

JurisdictionEngland & Wales
JudgeMr Justice Roth
Judgment Date23 March 2012
Neutral Citation[2012] EWHC 735 (Ch)
Docket NumberCase No: HC10C00406
CourtChancery Division
Date23 March 2012
Between:
(1) Dennis Michael Seaton
(2) Michael Grant
(3) Kelvin Grant
(4) Frederick Waite Junior (Aka Junior Waite) (by His Litigation Friend Ms Brenda Dickens)
(5) Brenda Dickens (as Personal Representative of the Estate of Patrick Wait (Deceased))
Claimants
and
(1) Anthony Seddon
(2) Paul Woolf
(3) Anthony Paul Cunningham
(4) David Patrick Irving
(5) Mohammed Yusef
(6) Lloyd Ferguson (formerly of the Musical Group called "The Mighty Diamonds")
(7) Fitzroy Simpson (formerly of the Musical Group called "The Mighty Diamonds")
(8) Sparta Florida Music Group Limited
(9) Music Sales Limited
(10) Universal/Island Music Limited (formerly Island Music Limited)
(11) Rydim Music Limited
(12) Emi Melodies Limited (formerly Leosong Copyright Service Limited)
(13) G Minor Music
(14) Strictly Rockers Music
(15) Eaton Music Limited
Defendants

[2012] EWHC 735 (Ch)

Before:

Mr Justice Roth

Case No: HC10C00406

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

John BRISBY QC, Tim LUDBROOK and Michael SMITH (instructed by Edwin Coe LLP) for the Claimants

Joanna SMITH QC (instructed by Clyde & Co LLP) for the 1 st to 5 th Defendants

Hearing dates: 14th, 15th and 21st November 2011

Mr Justice Roth

Introduction

1

The band "Musical Youth" ("MY"), with five boy members playing music in the Reggae style, enjoyed a short but spectacular success in the early 1980s. Its recording of a song called "Pass the Dutchie", released in September 1982, became the fastest selling British single of that year and sold over 100,000 copies in one day. By 1985, there was dissension between the members of the band; several of the members left and not long afterwards MY broke up.

2

"Pass the Dutchie" was an adaptation of another song, "Pass the Kouchie" 1, which had been recorded by a Reggae group, "The Mighty Diamonds". The relationship between those two songs, which I shall call "Dutchie" and "Kouchie" for short, forms the background to these proceedings. Kouchie itself was probably not novel and appears to have incorporated music with the title "Full Up" composed by a musician and arranger called Jackie Mittoo many years earlier. This case concerns the entry into an agreement concerning Dutchie, Kouchie and "Full Up" in September 1984, referred to as "the Sparta Florida Agreement".

The parties

3

The first four claimants were members of MY, and the second and third claimants are brothers. The fourth claimant, Fredrick Waite Jnr, is mentally ill and brings this action by his litigation friend, the corporate receiver of Birmingham City Council who was appointed as his "receiver" by order of the Court of Protection. The fifth member of MY was Patrick Waite, the brother of the fourth claimant, but he died on 18 February 1993 and his personal representative sues as fifth claimant on behalf of his estate. The claim is therefore brought by or on behalf of the former members of MY and I shall refer to them for convenience as "the band". Their respective dates of birth are as follows:

Accordingly, all five were children (i.e. under 18) at the time of the events with which the claim is concerned.

Dennis Seaton

-

2 March 1967

Michael Grant

-

7 January 1969

Kelvin Grant

-

9 July 1971

Fredrick Waite Jnr

-

23 May 1967

Patrick Waite

-

17 May 1968

4

The claim form was issued on 4 February 2010. It was amended in July 2010 only to remove one of the defendants and the Particulars of Claim were not then amended to change consequentially the enumeration of the defendants. That change is made in the draft Amended Particulars of Claim now before the court, which means that the numbering of the eighth and subsequent defendants differs as between the original and draft amended pleading. In the following paragraphs, I shall use the new numbering.

5

The first defendant, Mr Tony Seddon, was a partner in Woolf Seddon, a firm of solicitors which has since been dissolved but which specialised in media and entertainment work, particularly in the music industry. Mr Seddon was the individual solicitor who dealt with MY and its members. The second to fifth defendants are alleged to have been the other partners in Woolf Seddon who are jointly and severally liable with Mr Seddon. I shall refer to the first to fifth defendants collectively as "Woolf Seddon".

6

The sixth and seventh defendants were members of the group "The Mighty Diamonds". Together with a company called Mighty Diamonds Music Ltd ("MDML") (which has since been dissolved) and the thirteenth and fourteenth defendants, they apparently purported to grant certain exclusive rights to Kouchie to The Company of the Two Pieters BV ("Pieters BV"), a Dutch company which has also since been dissolved. The twelfth defendant claimed to be the administrator of MDML. The sixth, seventh, twelfth, thirteenth and fourteenth defendants were all parties to the Sparta Florida Agreement. However, of these, only the twelfth defendant has been served with the claim form.

7

The eighth and ninth defendants are related companies: the eighth defendant ("Sparta Florida") is or was a music publisher and apparently the assignee of the copyright in "Full Up". Sparta Florida was a party to the Sparta Florida Agreement and the ninth defendant is alleged to have become entitled to the benefit of Sparta Florida's rights thereunder.

8

The tenth and eleventh defendants were also parties to the Sparta Florida Agreement, representing the interests of another artist who claimed the copyright in "Full Up".

9

Pieters BV granted a copyright licence for Kouchie for the United Kingdom to The Company of the Two Pieters Ltd. ("Pieters UK"), which has also since been dissolved. The fifteenth defendant acted in the UK as administrator of the catalogue of Pieters UK and in that capacity was a party to the Sparta Florida Agreement.

10

The claim against Woolf Seddon essentially rests on the fact that, while also the solicitors to the MY members, Woolf Seddon acted for Pieters BV and Pieters UK (together, "the Two Pieters") in relation to the negotiation and conclusion of the Sparta Florida Agreement and the distribution of monies thereunder. This is alleged to give rise to various breaches of duty and trust which it will be necessary to consider in detail. From the proposed Amended Particulars of Claim, it seems that the sixth to eighth and tenth to fifteenth defendants are joined in the action on the basis that they were parties to the Sparta Florida Agreement and the ninth defendant is joined because of its link to the eighth defendant (Sparta Florida). A discrete claim for copyright infringement, which does not concern Woolf Seddon, is made against the sixth to fifteenth defendants.

The present applications

11

On 8 October 2010, Woolf Seddon issued an application for summary judgment on the claim against them, alternatively that the claim be struck out as against them under CPR rule 3.4(2)(b) as an abuse of process.

12

On 20 April 2011, the claimants applied for permission to amend their Particulars of Claim. That application was not served on the sixth, seventh, thirteenth and fourteenth defendants, who had never been served with the original claim form. The remaining defendants have been served and have not consented to the amendments but they chose not to participate in the hearing of the claimants' application.

The factual chronology

13

In March 1982, MY signed a recording agreement with MCA Records Ltd ("MCA")—the parents of the members of MY signing in addition to the members of the band—granting copyright to MCA in any recordings it would make in return for specified royalties. In the course of the following months, MY had several recording sessions of its own version of Kouchie, which it had adapted from The Mighty Diamonds' recording and had performed successfully at a London club. By September 1982, this version had changed to Dutchie, which was considered more suitable because of the young age of the band and, indeed, the age of MY's target audience. Dutchie was released by MCA on 26 September 1982, in 12" and 7 "versions, with another song recorded by MY, "Please Give Love a Chance", on the other side of the record. It achieved instant and phenomenal success, going to number one in the charts in the UK and selling very well also overseas. The record label for Dutchie, produced by MCA, credits with the composition: "Jackie Mittoo – F. Simpson – L. Ferguson" and refers also to The Sparta Florida Music Group Ltd. However, Dutchie differed from The Mighty Diamonds' Kouchie in certain respects, which the claimants allege were significant.

14

By the end of 1981, a Mr Toney Owens had become the manager of MY. It was Mr Owens together with Mr Freddie Waite Snr, who had been instrumental in setting up MY and was the father of the two Waite brothers in the band, who approached Mr Seddon around the time of the release of Dutchie to become MY's solicitor. There is a letter in Mr Seddon's file dated 7 October 1982 signed by the parents of the MY members which states:

" Musical Youth

This letter is to confirm our instructions to you on behalf of our sons to represent them in all dealings of a legal nature.

We confirm that you may take instructions on a day to day basis from the band's manager Mr. Tony Owens with regard to the boys' affairs. You are to keep us informed by correspondence to us on all matters of a major nature affecting the boys' careers."

In his evidence, Mr Seddon states that "it is quite common for a music industry solicitor representing a band or solo artist to deal on a day to day basis with the manager." And he adds: "It was almost inevitable in this case, where the Band's members were themselves so young."

15

Mr Seddon's first task was to negotiate the boys' publishing agreements with Virgin Music (Publishers) Ltd ("Virgin"), which were entered into on...

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