Fisher v Brooker

JurisdictionUK Non-devolved
Judgment Date30 July 2009
Neutral Citation[2009] UKHL 41
CourtHouse of Lords
Date30 July 2009
(Original Respondent and Cross-appellant)

and others

(Original Appellants and Cross-respondents)

[2009] UKHL 41

Appellate Committee

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Mance

Lord Neuberger of Abbotsbury


Original Appellants:

Iain Purvis QC

Hugo Cuddigan

(Instructed by Jens Hills Solicitors)

Original Respondent:

John Baldwin QC

Jessie Bowhill

(Instructed by harbottle & Lewis LLP)


My Lords,


I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and I also agree with the comments of my noble and learned friend Lord Walker of Gestingthorpe. For the reasons that Lord Neuberger gives I would allow the appeal and make the order that he proposes. I gratefully adopt his description of the factual background and his analysis of the issues that were before the courts below.


This is, as Mummery LJ observed in the Court of Appeal [2008] Bus LR 1123, para 34, an extremely unusual case. One of its most striking features is Matthew Fisher's extraordinary delay in making his claim for a share of the musical copyright. In para 82 of his judgment Mummery LJ described the fact that Mr Fisher had waited for 38 years, with knowledge and without reasonable excuse, as unconscionable behaviour. Another, which is really a product of the first, is the fact that his claim is being maintained with a view to what happens in the future, not with a view to the past. The judge rejected his claim for a share of the royalties that were obtained in respect of the work during the six years before the issue of proceedings, and Mr Fisher did not appeal against that decision. Mummery LJ said in para 34 that what he was essentially seeking to do by insisting on his claim was to control the copyright for the future.


Remarkable though these features are, they need to be treated with some care as the law is applied to the facts of the case. Delay in itself is no bar to these proceedings. There is no statutory limitation period that applies in English law to claims to copyright, the duration of which has been laid down by section 12 of the Copyright, Designs and Patents Act 1988, as substituted by the Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995/3297): see section 39 of the Limitation Act 1980. The position isless certain in Scotland. Section 8 of the Prescription and Limitation (Scotland) Act 1973 provides that if, after the date when a right to property has become exercisable or enforceable, a right has subsisted for a continuous period of twenty years unexercised or unenforced, and without a relevant claim having been made in relation to it, it is extinguished from the expiration of that period. Section 8(2) provides that the section applies to any right relating to that property, whether heritable or moveable, not being a right specified in Schedule 3 to the Act as an imprescriptible right, of which the most important is any real right of ownership in land. Intellectual property rights, such as copyright, are not mentioned in that Schedule.


As David Johnston, Prescription and Limitation (1999), para 7.08 points out, it is not self-evident that the phrase "any right relating to that property" in section 8(2) of the 1973 Actincludes ownership of that property. But he accepts that this seems likely to be so, and it has been suggested that a claim to recover corporeal moveables is lost by the negative prescription of twenty years: see Stair Memorial Encyclopaedia, The Laws of Scotland, vol 18, Property, para 567. Section 8 does not say that incorporeal property is to be treated differently from corporeal property. But both David Johnston, para 7.08 and Professor David Walker, Prescription and Limitation of Actions 5th ed, (1996), p85, indicate that an exception can be made in the case of the ownership of intellectual property which is regulated by other statutory provisions. Although the point has yet to be tested, I think that there is much to be said for the view that section 8 of the 1973 Act should not be read as extending to the ownership of incorporeal property the duration of which has been prescribed by another enactment. It would be anomalous if the period that section 12 of the 1988 Act prescribes for the duration of copyright throughout the United Kingdom (see section 157(1) of that Act) were to be subject to a provision about prescription that applies only to Scotland and the 1988 Act itself does not mention. It is common ground however that the provisions of the Limitation Acts 1939 and 1980 do not apply in this case. So it was to the prejudicial effects of the delay, not the mere fact that Mr Fisher has delayed for so long, that the respondents had to address this part of their argument.


As the judgments below have shown, this was not an easy task. The respondents' main defence to the claim when the case was before the trial judge was that Mr Fisher was not entitled to any share of the musical copyright at all. Having failed in that defence and in the related defence that because of the delay there could not be a fair trial, they now seek to rely on other aspects of the case that were not clearly focussed in the pleadings or were not fully explored in evidence. There were nevertheless some grounds for holding that the delay in itself was so unconscionable that any discretionary reliefs to which Mr Fisher might be entitled should, on equitable grounds, be refused to him.


It seems to me however that when they were considering the question whether the judge was right to grant all three declarations the majority in the Court of Appeal were, to a large extent, influenced by what they saw as Mr Fisher's motive for bringing the claim. He had, after all, sought an injunction before the trial judge. This led Mummery LJ, having referred to his object as being to control the copyright for the future and to dictate the terms on which he was to be entitled to share in its exploitation, to conclude that Mr Fisher was not entitled to the exercise of the court's discretion to enable him to enforce his joint share in the copyright: para 85. It was for this reason that the judge's declarations that he was a joint owner in the musical copyright with a share of 40% and that the respondents' licence to exploit the work was revoked when Mr Fisher commenced these proceedings on 31 May 2005 were set aside.


But there is a crucial difference inprinciple between the exercise of an undoubted right of property and resort for its protection to discretionary remedies. In so far as Mr Fisher may seek to restrain what the other joint owner may do in the exercise of its share of the copyright by means of injunctions, he will be subject to the court's discretion. Unconscionable delay may well have a part to play in the court's decision whether or not he isentitled to such a remedy. But it would be a very strong thing, in the absence of a proprietary estoppel, to deny him the opportunity of exercising his right of property in his own share of the copyright.


The law of property is concerned with rights in things. The distinction which exists between the exercise of rights and the obtaining of discretionary remedies is of fundamental importance in any legal system. There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the exercise of the court's discretion. The benefits that flow from intellectual property are the product of this concept. They provide an incentive to innovation and creativity. Aperson who has a good idea, as Mr Fisher did when he composed the well-known organ solo that did so much to make the song in its final form such a success, is entitled to protect the advantage that he has gained from this and to earn his reward. These are rights which the court must respect and which it will enforce if it is asked to do so.


The second and third declarations which the trial judge made were directed to the exercise of rights, not the granting of discretionary remedies. The majority in the Court of Appeal were, for understandable reasons, reluctant to offer the court's assistance to someone who had delayed for so long in asserting his claim. But it appears that, when they decided to deny him these further declarations which were designed to give effect to the rights that flowed from his co-authorship of the work which was found onunassailable grounds to have been established by the trial judge, they overlooked this fundamental distinction. I agree with my noble and learned friend that, leaving equity on one side as one must, there were no grounds in law for setting these declarations aside.


My Lords,


I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Neuberger of Abbotsbury. I agree with it, and for the reasons that Lord Neuberger gives I would allow this appeal and make the order that he proposes. Because of the interest and importance of this appeal I add some brief comments of my own, but they do not detract from my concurrence in Lord Neuberger's opinion.


In paragraph 81 of his judgment Blackburne J referred to the need, if the requirements for proprietary estoppel are made out, for any relief granted by the court to be proportionate to the degree of detriment suffered by the party (normally the defendant) asserting the estoppel. That balancing exercise may involve giving weight to any countervailing advantages that have been received by the defendant in the meantime. The clearest English authority for this is probably Sledmore v...

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