Masquerade Music Ltd & Ors v Springsteen

The best evidence rule no longer operates as an exclusionary rule in civil proceedings. When secondary evidence of a document’s contents is offered, the court must assess its weight in all the circumstances. A party who genuinely cannot produce the original need not prove an exhaustive search, although a reasonable explanation for its absence will ordinarily be necessary before the evidence receives any weight.

The contents and execution of a missing document are proved on the ordinary balance of probabilities. The document’s importance and the inherent probability of the alleged event affect the cogency of evidence required, but do not create a higher standard of proof.

The claimant alleged that imported compact discs infringed copyrights in his songs and sound recordings. His chain of title depended upon assignments made in 1972 from partnerships to successor companies. Copyright Act 1956, section 36(3), required those assignments to be in writing and signed for the assignors.

The original company minutes said to contain the assignments could not be produced. Ferris J admitted oral secondary evidence, found on the balance of probabilities that compliant assignments had been executed, granted injunctions and directed an inquiry into damages: [1999] EMLR 180.

The defendants appealed, contending that secondary evidence was inadmissible without an exhaustive search, that the search was inadequate, and that a standard higher than the balance of probabilities applied. They also challenged the factual finding that the minutes assigned the copyrights.

1. The appeal was dismissed unanimously. Jonathan Parker LJ delivered the judgment, with which Laws and Waller LJJ agreed.

2. The best evidence rule had ceased to exist as an exclusionary rule. Its historical function was adequately served by assessing the weight of secondary evidence. The court must decide, in all the circumstances, whether such evidence has any weight and, if so, how much. Where the original can readily be produced, an unexplained resort to secondary evidence will ordinarily make that evidence worthless. Where the original genuinely cannot be produced, the secondary evidence may be admitted and given appropriate weight.

3. A party need not undertake an exhaustive search, or necessarily any search, as an independent legal precondition to admissibility. The practical requirement is a reasonable explanation for non-production. The nature and importance of the document, its expected custody, the search undertaken, and any indication that better evidence has deliberately been withheld may all affect weight. Here, the inquiries were genuine, no bad faith was alleged, and the judge was entitled to use the formulation that the minutes could not be produced without difficulty.

4. The existence, contents and execution of a missing document are determined on the ordinary civil standard: the balance of probabilities. The importance or improbability of the alleged event may demand more cogent evidence, but does not raise the legal standard. The special vigilance appropriate to a lost will did not establish a generally applicable higher standard.

5. Section 36(3) of the Copyright Act 1956 required a written assignment signed by or for the assignor, but prescribed no particular form. A written transfer of all partnership assets could therefore include the copyrights. The intended corporate succession, the lawyer’s instructions, the standard-form minutes, the companies’ subsequent conduct and the absence of any later assertion that copyrights remained with the partnerships made effective assignment overwhelmingly probable. The trial judge’s careful factual findings disclosed no appellate error.

1. Court of Appeal (Civil Division): The defendants’ appeal was dismissed unanimously. The court upheld the admission and evaluation of secondary evidence and the finding that the copyrights had been effectively assigned: [2001] EWCA Civ 563.
2. High Court, Chancery Division: Ferris J found that the claimant owned the relevant musical and literary copyrights and 14 sound-recording copyrights. He granted injunctive relief and directed an inquiry into damages: [1999] EMLR 180.