Michael Rosenzweig v Nmc Recordings Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Norris |
| Judgment Date | 04 December 2013 |
| Neutral Citation | [2013] EWHC 3792 (Ch) |
| Docket Number | Case No: HQ11X03594 |
| Court | Chancery Division |
| Date | 04 December 2013 |
[2013] EWHC 3792 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
The Rolls Buildings
London
EC4A 1NL
Mr Justice Norris
Case No: HQ11X03594
Mr Michael Rozensweig in person
Jane Trethewey Davies Evans (Counsel employed by Freshfields Bruckhaus Derringer LLP) for the Defendant
Hearing date: 1 October 2013
NMC Recordings Limited ("the Charity") was incorporated on the 14 October 1988. Its objects are:-
a) To advance the education of the public by encouraging the understanding, appreciation and development of music of high artistic calibre composed by living musicians; and
b) To maintain, improve and advance the encouragement of works of high artistic merit in the community and to contribute to the increase of knowledge in a sphere of music by assisting in the dissemination of meritorious musical works.
The means by which the Charity achieves these objects include the recording and promoting of otherwise unrecorded contemporary music. Indeed, the initials "NMC" originally stood for "New Music Cassettes", though they no longer bear that meaning.
The Charity is in some respects the successor to the Society for the Promotion of New Music ("SPNM"). Some of those who formerly participated in the oversight of SPNM came to perform a similar role for the Charity. One such person was Dr Collin Matthews ("Dr Matthews"). He is now the Executive Producer of the Charity, and he used to be a "reader" for SPNM. Promotion by SPNM was one gateway for a UK based composer to embark upon a composition career. Several hundred scores would be submitted each year to the SPNM for assessment by the SPNM Reading Panel, whose function it was to select pieces for performance. The task of the Reading Panel was to select about 50 pieces for performance: and this was achieved by panels of three "readers" assessing each score. Dr Matthews was one of about 120 "readers".
Mr Rosenzweig is a UK-based composer of contemporary music. His works were never performed as a result of a selection by SPNM, although they were selected by the Reading Panel for performance on six or seven separate occasions: and the Charity has never promoted his works, and never issued a compilation CD of his works (although Mr Rosenzweig has offered every assistance and encouragement to enable the Charity to do so). Mr Rosenzweig says that by any objective standard ("bench-marking") his compositions should have been promoted by the Charity, and that the failure of the Charity to record or encourage the performance of his compositions is attributable to the continuation of a decade's long campaign of personal hostility directed at Mr Rosenzweig by Dr Matthews.
On its website the Charity says that it is seeking to establish "an up to date archive for the Nation" and that "recording is the crucial part of the new music continuum that ensures legacy value". It says:-
"NMC Recordings present the highest of artistic standards and the work of the very best of both emerging and established composers in Britain. We are dedicated to promoting and preserving new music and to building a permanent legacy to inspire generations to come".
Although the Charity has recently (in response to pressure from Mr Rozensweig's friends) put Mr Rozensweig's name on its "Musical Map" of 20 th century composers it has not itself promoted or preserved any of his music.
Mr Rosenzweig has issued proceedings against the Charity. On two occasions (on 7 September 2012 and most recently on the 13 August 2013) the Charity Commission has refused to authorise Charity proceedings, essentially on the ground that the Trustees of the Charity appear to have acted reasonably when they did not select Mr Rosenzweig's works for promotion and to have acted in good faith. The Commission noted that Dr Matthews was one of seven panellists who considered Mr Rosenzweig's work in May 2010, and one of nine panellists who considered Mr Rosenzweig's works in October 2010, but it considered that there was no evidence to suggest that on either occasion Dr Matthews overruled or dominated the review panel.
What is before me is Mr Rosenzweig's application for permission to bring "charity proceedings" against the Charity under section 115(5) of the Charities Act 2011.
It is common ground that the two sets of proceedings which Mr Rosenzweig has already commenced in the Queens Bench Division are "charity proceedings", that is to say, proceedings brought under the Court's jurisdiction with respect to charities, or under the Court's jurisdiction with respect to trusts but in relation to the administration of a trust for charitable purposes.
But by virtue of section 115(1) of the 2011 Act "charity proceedings" (if not taken by the charity or any of the charity trustees) can only be taken by "any person interested in the charity". If the Charity Commission refuses "a person interested in the charity" authority to take "charity proceedings" then such proceedings can only be entertained or proceeded with:-
"..if… leave to take the proceedings was obtained from one of the judges of the High Court attached to the Chancery Division".
So on this application there are two key issues to be decided:-
a) Is Mr Rosenzweig a "person interested in the [Charity]"?
b) If so, should I (bearing in mind the matters identified in paragraphs 21 to 28 of the decision in Rai v The Charity Commission for England and Wales [2012] EWHC 1111 (Ch)) grant permission to continue the proceedings?
Although I refused to treat the hearing before me as an opportunity for a dress rehearsal of any final hearing, it is necessary to give some fuller account of the facts as they appear (though recognising that this is not the occasion for making findings of fact on contested issues, and that, save for matters that are agreed or incontrovertible, my views must be provisional).
I start with a description of the key features of the Charity. It cannot be denied that the Charity has only limited financial resources. Over the last five years its general funds have not exceeded £200,000, and its annual expenditure (insofar as not covered by income from sales and licensing) has been underwritten by a grant from the Holst Foundation. I accept that the financial future of the Charity is somewhat uncertain, given that the copyright on Holst's work has expired, so that the royalty income derived by the Holst Foundation from those works is diminishing, jeopardising its continued support of the Charity.
The constitution of the Charity is not controversial. There are eight trustees who oversee the day to day operations of the small executive team. Dr Matthews (as Executive Producer) is a member of that team, along with four others. There is an independent Artistic Panel which provides expert strategic guidance to the trustees from an artistic perspective. Its remit includes the review of work submitted by composers.
The evidence about the selection process of the Charity has not been challenged. The Charity operates within the context of a very limited budget and a realistic release schedule of 10–12 CDs per year. The Charity receives about 50 proposals per year and selects two or three. But the bulk of the recording schedule comes from the Charity's own projects: for example, to address a perceived gap in the catalogue (such as contemporary song), or to promote debut discs, or to mark an anniversary. The overriding criterion is quality, but in addition the Charity considers likely audience and financial viability. These facts are assessed using external experts. These form an Artistic Panel whose members are invited (on a rotating basis) to constitute a selection group together with the Charity's Executive Team. A board member attends the meetings as an observer. Decisions are reached by consensus (or on occasion by majority vote).
At the end of March 2010 Mr Jon Baldachin wrote to ask the Artistic Panel to consider the work of Mr Rosenzweig and provided a link to Mr Rosenzweig's website where some complete and sample scores could be found together with some audio clips. It is said by the Charity (and I see no grounds to doubt the truth of the statement) that other applicants submitted full scores, recordings and narratives (explaining their project or their precise funding needs). I will deal with the treatment of this approach after dealing with Mr Rosenzweig's strengths.
It is appropriate to begin with what Mr Rosenzweig considers to be his two principal recognitions: he puts them in the forefront of his correspondence and of his evidence. First, in 1989 he was the recipient of the DAAD Berliner Kunstlerprogramm Fellowship. This is a year's funded residency (there are about 20 each year) to participate in cultural events in the city. Other recipients have been Stravinsky, Elliot Carter, Penderecki, Ligeti. Gorecki and Berio. Second, Mr Rosenzweig is the Principal Guest Conductor of the Vidin State Philharmonic (Bulgaria's second orchestra). This appointment speaks to his standing as a conductor though not as a composer. Although these may be regarded as the high points of his career, Mr Rosenzweig points to others and to the obstacles which have been placed in the way of his career development.
As to his other bench marking achievements, they include the following:-
a) In 1979 Mr Rosenzweig's Piano Trio obtained first prize in the GLAA Young Composer of the Year Competition.
b) In 1980 his String Quartet No. 1 got 2 nd prize in the same competition.
c) In 1981 he was granted a scholarship by Columbia University to read for a doctorate (though he did not complete this):
d) From 1980 to 1985 Mr Rosenzweig submitted between 3 and 7 scores each year to SPNM, some of which were selected by the SPNM reading panel but...
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Reverend Berhanu Bisrat and Others v Archimandrite Aba Girma Kebede and Others
...spirit and disembodied wishes. That case, therefore, is of no help to the defendants in this case. 23 I was also referred to Rosenzweig v NMC Recordings Ltd by Mr Simret; a decision of Norris J [2013] EWHC 3792 (Ch). In that case, a musician claimed to be an interested party in bringing pr......