Peer International Corporation and Others v Termidor Music Publishers Ltd and Others

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Lloyd,Lord Justice Moore-Bick
Judgment Date26 November 2008
Neutral Citation[2008] EWCA Civ 1260
CourtCourt of Appeal (Civil Division)
Date26 November 2008
Docket NumberCase No: A3/2007/0631

[2008] EWCA Civ 1260








Lady Justice Arden

Lord Justice Lloyd and Lord Justice Moore-bick

Case No: A3/2007/0631

(1) Peer International Corporation
(2) Southern Music Publishing Company Inc
(3) Peermusic (uk) Ltd
Respondents Claimants
Editora Musical De Cuba
Appellant/Part 20/Defendant

James Mellor Q.C. and Martin Farber (instructed by Teacher Stern Selby)

for the Appellant

Pushpinder Saini Q.C. (instructed by Sheridans) for the Respondents

Hearing dates: 8 and 9 October 2008


Lord Justice Lloyd

Lord Justice Lloyd:


Between May 2005 and October 2006 Lindsay J heard the trial of the second phase of a complex and strongly fought action concerning entitlement to the UK copyright in 14 songs written by Cuban composers. For three of the almost thirty days of the trial he sat as a special examiner in Cuba. On 16 November 2006 he handed down judgment, [2006] EWHC 2883 (Ch) (which I will call his main judgment), by which he declined to grant any relief to the Claimants, Peer International Corporation and two subsidiary companies. On 1 December 2006 he heard argument as to costs and on 4 December he gave his judgment on that aspect, concluding by making no order as to the costs of that part of the trial. The effective Defendant, Editora Musical de Cuba (EMC), contends that the judge erred in law in denying it, as the successful party, the recovery of any of its costs from the unsuccessful Claimants (which I will call Peer, it being unnecessary for present purposes to distinguish between the various Respondents). Permission to appeal was granted to EMC at an oral hearing by Lord Justice Sedley and myself. (EMC did not pursue its application for permission to appeal in relation to a later order for costs made by the judge, which related to a much smaller amount of costs.) Later Peer was given permission to serve a contingent Respondent's Notice. By that, Peer contends that, if (contrary to its primary case) the judge did err as a matter of law in making his order, so that the discretion as to costs falls to be exercised afresh, the correct order should be more favourable to Peer than that made by the judge.


It is not in dispute between the parties that if the costs order is to be set aside, it can only be on the basis that the judge erred in law in making it. It must be shown that the exercise which the judge undertook was flawed, either because on the face of the reasoning it can be seen that the judge misdirected himself, or because the result manifestly produces an injustice and falls outside the generous ambit within which reasonable disagreement is possible. EMC relies on both of these propositions to challenge the order, and also on an alleged inadequacy in the judge's expression of his reasoning.


A major factor leading to the judge's order as to costs was that EMC had raised a number of issues on which he said that they had failed, and some of which they did not have the necessary standing to raise. For that reason, I need to describe first the nature of the proceedings, itself somewhat unusual, and then the issues taken in the course of the hearing.


The proceedings took the form of a dispute as to title to the UK copyright in relation to 14 songs written by Cuban composers between 1930 and 1945, identified in a schedule to the judge's main judgment. By the end of the trial, Peer had abandoned its claim in respect of one of the songs, number 1 in the schedule, so that only 13 songs were then at issue. Payments had been made to the Mechanical Copyright Protection Society Ltd in respect of the rights to the 13 songs, which then found that competing claims to title were advanced, on the one hand by Peer, and on the other by one or other of two companies which derived title, if at all, from EMC: I can refer to those companies together as Termidor.


Peer started proceedings against Termidor in August 2000, seeking a declaration that it was the owner of the UK copyright in each song. Termidor defended the proceedings, but EMC was joined, on its application, as a Part 20 Defendant. Several issues were identified for decision as preliminary issues. These were decided, favourably to Peer, at first instance and in the Court of Appeal, [2003] EWCA Civ 1156, [2004] Ch 212, leave to appeal to the House of Lords being refused.


In the light of those rulings, EMC served a Statement of Case on 7 March 2004 which, together with a number of further statements of case dealing with particular points, represented its pleaded case thereafter. Peer responded with a Reply to the Statement of Case in May 2004. Termidor, which had not appealed against the ruling on the preliminary issues, took no further part in the proceedings.


Because the songs had been written between 1930 and 1945, they were governed, as regards UK copyright law, by the provisions of the Copyright Act 1911. The particular feature of this Act which is relevant for present purposes is that, although the copyright lasted for the life of the author of the copyright work and for a further 50 years after his death, the author was only able to dispose freely of the copyright for the duration of his life and for 25 years from his death. (I will refer to this part of the term of the copyright as the original copyright, and to the remaining 25 years as the reversion.) So far as concerned the reversion, he could dispose of it by will (so as to be able to decide who should inherit from him) but he was not capable of disposing of it in any other way. The reversion devolved automatically on the author's legal personal representatives as part of his estate. Once the Copyright Act 1956 had come into force, the author could dispose outright of his copyright for pre-1956 Act works as well as for those created after that Act came into effect.


Peer's claims are put on the basis of agreements with composers dated between 1930 and 1945, except in the case of one song (number 5), where it also has a subsequent agreement dated 1958, after the 1956 Act came into force. At the time of Lindsay J's judgment, the composers of all except 3 of the songs had been dead for more than 25 years, so that the reversions were already running. In the case of two songs (numbers 2 and 3) the composer had died in 1982, so that the original copyright lasted until 2007, and as regards the third (number 4), it was written jointly by the composer who died in 1982 and by another who died in 1991, leaving the reversion to his rights outstanding until 2016. Of the contracts relating to the 13 songs, seven were governed by Cuban law and one (which related to six songs) by New York law.


Peer therefore had a claim to the whole copyright in one song, on the basis of the 1958 agreement, and to the remaining period of the original copyright, under its original agreements, in relation to three more songs. So far as the reversions were concerned, it set up a claim based on what the judge referred to as Further Dealings, entered into between 1998 and 2002, with persons identified as the heirs of the composers (or some of them). These dealings comprised a document called a Composer Confirmation of Rights (CCR) and another called an Addendum. The effect of these, in principle, was considered as one of the preliminary issues. It was held that the CCR was not effective by itself to assign the reversion, but that it did so when taken with the Addendum.


In the case of some of the songs, EMC sought to defeat Peer's claim by reference to a dealing between the composer and another Cuban entity known as EGREM, between 1960 and 1964. In most cases it also set up a dealing between one or more heirs and itself, in 2000.


EMC succeeded at trial in large part because the judge held that an assignment of the reversion under the 1911 Act had to be made by the composer's English personal representatives, not by his heirs, and accordingly Peer did not have title to any reversion, except in the case of song number 5, where it had an assignment from the composer made after 1957. EMC took this point by amendment at the outset of the hearing before Lindsay J. Peer responded, seeking not only to persuade the judge that this was not the correct conclusion, but also to avoid it if it were correct, including by applying for a grant of representation to each composer's estate in favour of themselves or of an appropriate professional person. The judge rejected that.


As regards song number 2, a separate point taken by EMC was that the original agreement was not with any of the Claimants. The judge accepted this, so that Peer could not show a title to the original copyright (which still had a short time to run at the time of the trial) any more than it could to the reversion.


That left songs 3 and 4 where Peer had a title to the original copyright, then not yet expired, and song 5 for which it had a title to the original copyright and the reversion. The judge had to consider whether he should grant declaratory relief limited to those three songs. He dealt with this question first at paragraphs 91 and 92 of his judgment and then at paragraphs 172 to 176. Since the latter paragraphs set out the reasons why the judge refused to grant any relief to Peer in respect of the songs to which it had any claim to a title, it is convenient to quote them here (I will quote paragraph 92 later in this judgment):

“172. It would be possible, despite the difficulties in Peer's path which I...

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