Masquerade Music Ltd & Ors v Springsteen

The so-called best evidence rule is no longer a rule of law requiring exhaustive searches before secondary evidence of a document’s contents may be received. The court must decide, in all the circumstances, whether the evidence should be admitted and what weight it deserves. A reasonable explanation for non-production will ordinarily suffice, particularly where the party genuinely cannot produce the original and there is no suggestion of impropriety. The evaluation remains a civil assessment on the balance of probabilities. The seriousness or inherent improbability of the allegation may require stronger evidence, but it does not create a higher standard of proof.

Bruce Springsteen brought copyright proceedings concerning recordings and songs from the early 1970s. The appellants, Masquerade Music Ltd and Ron Winter, challenged one link in his chain of title: whether copyrights had been assigned in writing and signed on behalf of two partnerships when successor companies were incorporated.

The original company minutes were unavailable. Ferris J admitted oral secondary evidence of their contents, found on the balance of probabilities that compliant assignments had been made, and granted injunctive relief with an inquiry as to damages. The appeal concerned the admissibility of the secondary evidence, the standard of proof, and the factual conclusion that assignments had occurred.

1. Appeal dismissed. The court unanimously upheld Ferris J’s order.
2. The best evidence rule was historically a flexible rule of practice. In its modern form it has ceased to operate as an exclusionary rule of law. The question is whether, having regard to all the circumstances, any weight should be attached to the secondary evidence. If the original is readily available, the court may regard secondary evidence as worthless. If it genuinely cannot be produced, the court will ordinarily admit the secondary evidence and assess its weight.
3. No exhaustive search was required. The relevant question was whether Mr Springsteen gave a reasonable explanation for the absence of the minutes. The judge was entitled to apply the “without any difficulty” approach in R. v. Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277. There was no allegation of bad faith or impropriety, and the searches made were genuine.
4. The correct standard for evaluating the secondary evidence was the balance of probabilities. The importance of the assignments and the inherent improbability of the alleged transaction were matters affecting the weight of the evidence. They did not impose a higher civil standard.
5. The judge was entitled to find that assignments had been made in due form. The intended conversion of the partnerships into companies, the instructions given to Mr Kurz, the companies’ subsequent conduct, the standard corporate minutes, and the parties’ long-standing assumption that the copyrights had vested in the companies provided powerful support. The factual findings had been reached after careful consideration of the evidence and disclosed no appealable error.

• Court of Appeal (Civil Division): appeal from Ferris J dismissed; the order granting injunctive relief and directing an inquiry as to damages was upheld. The first-instance judgment is reported at [1999] EMLR 180.