Lawrence Miller v Patrick J Gardiner and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 16 June 2015 |
| Neutral Citation | [2015] EWHC 1712 (Ch) |
| Court | Chancery Division |
| Date | 16 June 2015 |
| Docket Number | Case Nos: HC-2015000122 & HC-2015000123 |
[2015] EWHC 1712 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building, Royal Courts of Justice
7 Rolls Buildings, Fetter Lane
London, EC4A 1NL
Mr Justice Newey
Case Nos: HC-2015000122 & HC-2015000123
Mr Miller appeared in person
Mr Simon Devonshire QC (instructed by Eversheds LLP and Browne Jacobson LLP) for the Defendants
Hearing date: 8 May 2015
I have before me applications by the defendants to claims brought by Mr Lawrence Miller for (a) the proceedings to be struck out and/or summary judgment to be given in their favour and (b) a civil restraint order to be made against Mr Miller. The defendants comprise Mr Patrick Gardiner, a solicitor who was formerly a partner in Eversheds LLP; Mr Richard Little, a current partner in Eversheds who dealt with claims that Mr Miller brought against the firm and others (including Mr Gardiner) last year; Ms Janie Hendrix, one of the defendants to those proceedings; and Miss Claire Blanchard QC, who appeared for the defendants to those claims.
Narrative
On 27 July 1965, Jimi Hendrix, the guitarist and singer, entered into an "Exclusive Recording Artist Contract" with Sue Records Inc. The agreement ("the Sue Records Agreement") provided for the grant by Jimi Hendrix of "exclusive personal services in connection with the production of phonograph records". Under the agreement, Jimi Hendrix was, among other things, to record "a minimum of the equivalent of Eight (8) 7 inch 45 rpm (single faced) commercially and technically satisfactory record sides".
Soon afterwards, on 15 October 1965, Jimi Hendrix entered into a recording contract with PPX Enterprises Inc ("PPX"), of which a Mr Ed Chalpin was the moving force. Litigation about this agreement subsequently arose between PPX and, among others, Jimi Hendrix.
Sue Records Inc appears to have assigned its rights under the Sue Records Agreement to a Mr Michael Jeffery, who, in turn, seems to have assigned on to Yameta Company Limited ("Yameta"), a company incorporated in the Bahamas. On 1 December 1966, Jimi Hendrix entered into a management agreement with Yameta ("the Yameta Management Agreement").
In January 1969, Jimi Hendrix performed live in Stockholm.
On 18 September 1970, Jimi Hendrix died intestate. In February of the following year, letters of administration were granted by the Surrogate's Court of New York County to a Mr Kenneth D. Hagood, a New York lawyer. On 23 January 1973, a Mr Alan Leighton-Davis, a partner in Goodman Derrick & Co, was granted letters of administration in this country as Mr Hagood's "lawful attorney".
Numerous problems were evidently encountered with the administration of Jimi Hendrix's estate. Among other things, matters were complicated by paternity claims. Mr James Allen ("Al") Hendrix was, however, declared by the Surrogate's Court to be Jimi Hendrix's sole heir as his father.
The litigation with PPX was settled by an agreement of 7 March 1973 which was embodied in a Court order ("the 1973 Agreement").
On 30 March 1977, Mr Hagood executed an instrument of distribution, transfer and set over. This served to distribute the assets comprised in Jimi Hendrix's estate to Mr Al Hendrix. The document recorded:
"This distribution is made with the specific intent and purpose of closing The Estate of JAMES M. HENDRIX and distributing to Mr. JAMES A. HENDRIX all rights and responsibilities which formerly were of The Estate and the Administrator of The Estate."
Supposing them to be genuine, documents obtained by Mr Miller suggest that by this stage Yameta had (in 1975) assigned the benefit of outstanding contracts with Jimi Hendrix to Mr John A Hillman, a director of Yameta and perhaps its beneficial owner. On the face of it, Yameta's board had also resolved that the company should be removed from the Register of Companies.
There is obvious inconsistency between these documents and an assignment of copyrights that Yameta appears to have entered into on 5 November 1979 in favour of the estate of Mr Jeffery, who had died in 1973. The assignment was stated to relate to the copyrights in listed works by Jimi Hendrix.
In the course of the 1980s, companies associated with Mr Al Hendrix seem to have acquired such rights as Mr Jeffery's estate may have had in Jimi Hendrix's work. In 1995, Mr Hendrix and companies associated with him transferred their rights in Jimi Hendrix's work to Experience Hendrix LLC ("Experience Hendrix").
In 1999, Experience Hendrix brought proceedings against PPX and Mr Chalpin for breach of the 1973 Agreement and infringing Experience Hendrix's rights. It came to be thought, however, that the right to sue on the 1973 Agreement might still be vested in Mr Leighton-Davis. According to the defendants, a deed of assignment dated 13 November 2000 ("the 2000 Deed of Assignment") was entered into to remedy the problem, with Experience Hendrix, Mr Hagood and Mr Leighton-Davis amongst the parties to it. Thereafter, a second set of proceedings was brought against PPX and Mr Chalpin. Eversheds acted for Experience Hendrix in both actions.
The matter came before Buckley J in 2002. He concluded that PPX had breached the 1973 Agreement. In the course of his judgment, he said (at paragraph 44):
"Proceedings were commenced in April 1999 but foundered because of lack of title. However, the matter was rectified and the present proceedings were then commenced in June 2001."
On appeal, Experience Hendrix was awarded additional redress (see [2003] EWCA Civ 323). Mance LJ stated in his judgment (at paragraph 8):
"By deed dated 13 th November 2000 [i.e. the 2000 Deed of Assignment] the English administrator of Jimi Hendrix's estate assigned the benefit of the settlement agreed on 7 th March 1973 to the present appellant, a company effectively owned by Jimi Hendrix's father, who is the sole beneficiary of Jimi Hendrix's estate."
On 21 October 2003, Mr Hillman entered into a copyright licence agreement with Purple Haze Records Limited ("Purple Haze"), a company that Mr Miller had set up in 2001. The agreement provided for the grant to Purple Haze of a licence "to distribute recordings made of the performance by Jimi Hendrix at the 1969 Stockholm Concert and the publication of the same on all sound recording media". In the same year, Purple Haze released CDs of recordings of the Stockholm performances.
In 2004, Experience Hendrix issued proceedings against both Purple Haze and Mr Miller (case number HC04C02405). It was alleged that Purple Haze had infringed Experience Hendrix's reproduction and distribution rights in the Stockholm performances and that Mr Miller was jointly liable. Eversheds were again Experience Hendrix's solicitors. Mr Clive Sutton acted as the defendants' solicitor.
It is important to note that Experience Hendrix's claim was for breach of performers' rights, not breach of copyright. Performers' rights were first expressly provided for by the Copyright Designs and Patents Act 1988. That Act had a commencement date of 1 August 1989, but it provided for the rights it conferred to apply in relation to performances that had already taken place.
In February 2005, Hart J granted Experience Hendrix summary judgment (see [2005] EWHC 249 (Ch)). He concluded that the Stockholm performances were "qualifying performances" for the purposes of the 1988 Act. In the course of his judgment, Hart J recorded that the defendants' counsel "did not seek to challenge the proposition that, if the Hendrix Estate ever had any performer's rights in respect of the Stockholm Performances, those rights are now vested in the claimant as a result of the deed of assignment executed by the English administrator on 13 th November 2000 [i.e. the 2000 Deed of Assignment]". Hart J also noted that the defendants had advanced a number of arguments based on the Yameta Management Agreement. As to this, Hart J said this:
"31. The case presented on behalf of the defendants was, in essence, that by the Yameta Agreement [i.e. the Yameta Management Agreement], Jimi Hendrix had so committed himself to Yameta that Yameta had become entitled either in law or in equity to all rights appertaining to performances by Jimi Hendrix. Such rights would have included all copyrights in original works produced by Jimi Hendrix during the currency of the Yameta Agreement and extended to rights, such as performer's rights, which were not known to the law at the date of the Yameta Agreement. This result was said to obtain either from the fact that the Yameta Agreement was on its true construction a contract of employment (with the result that such copyrights were owned by Yameta by virtue of section 4(4) of the Copyright Act 1956 and that copyrights in recordings commissioned by Yameta were owned by Yameta by virtue of section 12(4) of the 1956 Act), or that a term should be implied in the Yameta Agreement which precluded Jimi Hendrix (or his estate) from doing any act which would frustrate Yameta in the exercise of its function under the Yameta Agreement of achieving the fullest possible commercial exploitation of Jimi Hendrix's services rendered during its currency.
32. In my judgment there is a very short answer to this way of putting the defendants' case. True it is that by the Yameta Agreement Jimi Hendrix in a sense delivered himself 'body and soul' to Yameta for its duration. But the purpose of his so subjecting himself was to enable, and entitle, Yameta to fulfil its contractual role and duty of promoting and furthering his 'career and interest', and for that purpose of finding suitable employment for him. What Yameta got from this...
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