Lawrence Miller v Experience Hendrix Llc and Others (Defendants in claim HC14E00826)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Snowden |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] EWHC 288 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos:HC14E00826 & HC14F00827 |
| Date | 16 July 2015 |
[2015] EWHC 288 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Buildings, Fetter Lane
London, EC4A 1NL
Mr Justice Snowden
Case Nos:HC14E00826 & HC14F00827
Mr Lawrence Miller appeared in person
Mr Simon Devonshire QC (instructed by Eversheds LLP) for the Defendants
Hearing date: 13 July 2015
Introduction
This is the hearing of an application ("the Application") issued on 23 March 2015 by the Claimant, Mr. Lawrence Miller, in two actions commenced by him in February 2014 ("Claims 826 and 827").
In Claim 826, Mr. Miller had sought the setting aside of a judgment given against him by Hart J in earlier proceedings in 2005 on the grounds that it was obtained by fraud. In Claim 827, Mr. Miller had sought damages for unlawful interference with his business. Both Claims 826 and 827 were summarily dismissed by HHJ Hodge QC (sitting as a High Court Judge) on 16 July 2014: see [2014] EWHC 2695 (Ch). In his judgment ("the Hodge Judgment") Judge Hodge held that both Claims had no real prospect of success and that they were totally without merit.
Mr. Miller's Application before me is to set aside the Hodge Judgment itself on the grounds that it was obtained by fraud on the part of the Defendants to Claims 826 and 827. The Defendants have submitted that I should strike out the Application as an abuse of process.
The Early Proceedings
The Application arises from a long history of litigation involving Mr. Miller and the rights relating to the recordings of the late Jimi Hendrix. Relevant parts of that history are referred to in the Hodge Judgment and are narrated in some detail in paragraphs 2–50 of a more recent judgment of Mr. Justice Newey in Miller v. Gardiner [2015] EWHC 1712 (Ch) given on 16 June 2015 ("the Newey Judgment").
In summary, for about a decade, Mr. Miller has been concerned to overturn judgments given against him and his former company, Purple Haze Records Ltd ("PHRL") in 2005 and 2006.
The first judgment was given by Hart J: [2005] EWHC 249 (Ch). Hart J held that a company called Experience Hendrix Limited ("EHL") was entitled to Jimi Hendrix's performers' property rights under Part II of the Copyright Designs and Patents Act 1988 in relation to certain live performances given by him in Stockholm in 1969. Hart J also held that Mr. Miller and PHRL had infringed those rights by releasing a double CD purporting to be a recording of the Stockholm Performances in 2003.
To establish its title to sue in respect of those Part II rights, EHL had relied upon a chain of title that included a Deed of Assignment made in its favour on 13 November 2000 by a Mr. Leighton-Davies who was the English administrator of Jimi Hendrix's estate ("the Deed of Assignment"). The parties to the Deed of Assignment were Mr. Leighton-Davies and EHL, together with a Mr. Hagood, who had been the New York Administrator of Jimi Hendrix's estate between 1971 and 1977, and a James A Hendrix as the beneficiary of Jimi Hendrix's estate.
The Deed of Assignment had been entered into in connection with other proceedings brought by EHL against a company known as PPX Enterprises Inc concerning an agreement made in 1973 because it was thought that the right to sue under the 1973 agreement might still have been vested in Mr. Leighton-Davies. As well as assigning the rights under the 1973 agreement, the Deed of Assignment also purported to assign to EHL any other property of Jimi Hendrix's estate vested in Mr. Leighton-Davies. Paragraph 9 of Hart J's judgment recorded that leading counsel instructed on behalf of Mr. Miller and PHRL in 2005 did not challenge the proposition that such performers' rights as Jimi Hendrix might have had in the Stockholm Performances had been vested in EHL by the Deed of Assignment.
For their part, Mr. Miller and PHRL had relied upon a chain of title that they contended stemmed from a management agreement entered into in 1966 between Jimi Hendrix and a company known as Yameta ("the Yameta Management Agreement"). They contended that PHRL was the assignee of the rights under that agreement.
In finding for EHL, Hart J upheld EHL's claims to enforce Jimi Hendrix's performers' rights and held that, on its true meaning and effect, the Yameta Management Agreement upon which Mr. Miller and PHRL had relied had nothing to do with intellectual property rights. An appeal by Mr. Miller and PHRL was ultimately dismissed by Chadwick LJ as a result of their failure to make a payment on account of EHL's costs: [2005] EWCA Civ 1524.
The second judgment was given by Park J in a second set of proceedings by EHL against Mr. Miller and PHRL: [2006] EWHC 968 (Ch). Park J found that Mr. Miller and PHRL had further infringed EHL's performers' rights by making and issuing copies of other recordings of Jimi Hendrix.
In the course of the trial of that second claim, Mr. Miller addressed Park J at some length on matters concerning the administration of the estate of Jimi Hendrix in the United States and contended that EHL did not have any performers' rights. Park J held that in light of Hart J's judgment, Mr. Miller was prevented by the doctrines of res judicata and issue estoppel from making such submissions, but in any event he went on to make the following observations:
"28 In any case, on examination none of the matters which have been contentious in the history of the Hendrix estate in the United States can affect the issue of who is entitled to enforce in the United Kingdom such performers' rights as may exist under English law. Once the court rejected the argument that Yameta…was entitled to rights in Jimi Hendrix's performances after his death…the only person who could initially have been entitled to those rights under English law was Mr Alan Leighton-Davis. He was the administrator under English law of the estate of Jimi Hendrix, and letters of administration were granted to him by the Family Division of the High Court of England and Wales. Questions over the propriety or otherwise of events which had happened in the United States cannot have affected the validity of his appointment as administrator of Jimi Hendrix's English estate. In 2000 he assigned the rights to [EHL]. None of the controversies in which the estate in the United States has been involved can change the two facts that Mr Leighton-Davis was the administrator under English law, and that he assigned the property comprised in the estate to [EHL]. [EHL] needed no further authority than that for it to be entitled to commence the present proceedings."
Park J's judgment was affirmed on appeal: [2007] EWCA Civ 501.
After failing to overturn the judgments against him, Mr. Miller sued the solicitor (Mr Sutton) who had acted for him, alleging that Mr Sutton had been negligent in not putting before Hart J all of the material that he claimed established his rights to exploit recordings of the performances in question. Having failed to succeed in reliance upon the Yameta Management Agreement, Mr. Miller instead sought to rely upon an earlier "Exclusive Recording Agreement" that Mr Hendrix had made with a company called Sue Records on 27 July 1965 ("the Sue Records Agreement"). Mr. Miller claimed that Mr. Sutton had failed to ensure that the Sue Records Agreement was brought to the attention of Hart J and had failed to run an argument (i) that the Sue Records Agreement was an exclusive recording agreement, (ii) that the European rights under that Agreement had been acquired by Yameta, and then passed on to a Mr Hillman who in turn licensed them to PHRL in 2003, and (iii) that the Stockholm Performances fell under the Sue Records Agreement. Mr. Miller contended that this argument would have defeated EHL's claim to enforce any performers' rights derived through the Deed of Assignment.
Mr. Miller's claim against Mr. Sutton was struck out by a combination of Eder J and Mr. John Martin QC (sitting as a Deputy High Court Judge): see [2012] EWHC 906 (Ch). Mr. Martin QC held that nothing in the Sue Records Agreement prevented Jimi Hendrix giving live performances, and that although he and Yameta (which was at the time the assignee of the benefit of the agreement) could have agreed that the Stockholm Performances would count towards his minimum recording obligation under the agreement, they had not done so. Indeed, Mr. Martin QC referred to a witness statement that Mr. Miller had deployed before Hart J that had expressed the view that Yameta would have known of the recording of the concerts by Swedish Radio and authorised it. Mr. Martin QC summarised his conclusions on this point in this way:
"25. What Mr Miller's evidence establishes is that Yameta consented to the making of the recording by Swedish Radio. That has two consequences: first, that the recording was not made pursuant to the Sue Records Agreement; secondly, that Jimi Hendrix did not break the Sue Records Agreement by allowing the recording to be made. Each consequence is important. Since the recording was not made under the Sue Records Agreement, the rights conferred on Yameta by that agreement did not apply to it; and, since the recording did not involve a breach by Jimi Hendrix of his contract with Yameta, there could be no objection (on the general principle that a person may not take advantage of his own wrong) to an assignee from his estate enforcing his performers' rights against Yameta's assignee."
An appeal was dismissed by the Court of Appeal in February 2013: see [2013] EWCA Civ 359. The Court of Appeal affirmed Mr. Martin QC's...
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