Trim (t/a Trim Productions & Victim Records) v Bobb (pka Gabrielle) & Ors

Permission to appeal out of time is an exceptional remedy. The applicant must provide a satisfactory explanation for the delay, and the court must consider the prejudice and injustice that reopening old litigation would cause to the other parties. The passage of time may make a fair rehearing impossible where the evidence depends substantially on recollection. Fresh evidence may be admitted even though the formal requirements in Ladd v Marshall are no longer treated as absolute, but an unexplained delay in producing it remains highly significant. Evidence which might have assisted the applicant is insufficient if it would not have been conclusive and the delay in seeking to rely on it is unjustified.

The applicant sought permission to appeal, an extension of time, permission to rely on fresh evidence and a stay of execution. The application challenged orders made by Jacob J on 12 June 1996 in copyright proceedings concerning the song Dreams. Those orders restrained infringement of copyright in its lyrics and music and required delivery up of infringing recordings.

The proposed appeal was brought approximately five and a half years late. The applicant relied on alleged errors concerning representation, the evidence at trial, copyright ownership and alleged misleading conduct. He also relied on a master tape which had allegedly been located in November 2000 but was not relied on until the present application. The central issues were whether the delay could be excused and whether the fresh evidence justified reopening the matter.

1. Applications refused. The application for permission to appeal, extension of time, permission to rely on further evidence and stay of execution was refused.
2. The explanation for the five-and-a-half-year delay was inadequate. Difficult personal circumstances and the absence of legal aid did not sufficiently explain why the proposed grounds, including complaints about the trial evidence and representation, had not been raised earlier.
3. Finality of litigation formed part of the justice assessment. Reopening proceedings concerning events more than ten years old would create severe injustice for the respondents, particularly because much of the evidence depended on recollection.
4. The master tape could potentially have played a material part in the original trial, but it was only one piece of evidence and would not have been conclusive. The explanation for the further delay of more than a year after the tape came into the applicant’s possession was unsatisfactory.
5. Although the formal requirements in Ladd v Marshall [1954] 1 WLR 1489 were no longer sacrosanct, the absence of an adequate explanation and the continuing delay meant that there was no realistic prospect of permission to introduce the fresh evidence.

• Court of Appeal (Civil Division): Applications for permission to appeal, extension of time, permission to rely on further evidence and a stay of execution refused.
• High Court, Chancery Division, Patents Court: Jacob J made orders on 12 June 1996 restraining infringement of copyright in the lyrics and music of Dreams and requiring delivery up of infringing recordings.