Experience Hendrix Llc v Purple Haze Records Ltd & Anor

An application to vary an unless order cannot ordinarily be used to relitigate an issue already determined merely because a party now has better evidence. The administration of justice requires a party to present its case at one go. Where the party was legally represented and did not seek an adjournment before the original determination, inadequate evidence does not justify a second attempt. The application was refused, although a short extension of time was given to reflect time spent on the application.

Experience Hendrix LLC obtained summary judgment in the Chancery Division before Hart J against Purple Haze Records Ltd and Lawrence Miller concerning recordings of Jimmy Hendrix performances. The order included an injunction, an inquiry into damages and an interim payment of £25,000 towards costs. Permission to appeal was granted.

Neuberger LJ subsequently made an unless order requiring payment of £25,000 by 20 July 2005, failing which the appeal would stand dismissed. The defendants applied under CPR Rules 3.1.2, 3.17 and 3.91 to vary that order, relying on better evidence of their financial position and arguing that payment would stifle the appeal. The central issue was whether the previously determined financial issue could be reopened.

Application refused. Lord Justice Jacob declined to vary the unless order made by Neuberger LJ. The merits of the underlying appeal were not taken into account.

1. The defendants’ application was based only on better evidence of their existing financial position. It did not depend on newly discovered facts or a change of circumstances. The application therefore sought to relitigate the very issue previously heard and determined.
2. The matters listed in CPR Rule 3.91 did not justify reopening that issue. The due administration of justice requires a party to put its substantive or procedural case before the court in a single attempt. Otherwise, an unsuccessful party could repeatedly return with improved evidence.
3. The defendants had lawyers properly instructed by the time the earlier application was heard. If their evidence was inadequate, they could have sought an adjournment. Their failure to do so did not permit them to lose on inadequate evidence and then ask to do better.
4. The court refused to vary the order. It gave an extension of time for compliance because time had been occupied by the present application, but indicated that the extension should be short. The defendants’ costs were to be assessed, and an interim payment of £5,000 was ordered within 21 days.

• Court of Appeal (Civil Division): On 3 August 2005, Lord Justice Jacob refused the defendants’ application to vary the unless order, while granting an extension of time for compliance. [2005] EWCA Civ 1091
• High Court of Justice, Chancery Division: Hart J granted summary judgment, an injunction, an inquiry into damages and an interim payment of £25,000 towards costs. Permission to appeal was granted.
• Interlocutory appeal stage: Neuberger LJ refused to grant the defendants a stay and made an unless order requiring payment of £25,000 by 20 July 2005, failing which the appeal would stand dismissed.