Experience Hendrix Llc & Anor v Times Newspapers Ltd

On a summary judgment application, a defendant cannot resist judgment by raising merely shadowy or speculative factual disputes. It must produce evidence showing a real prospect that the defence will succeed. The court must avoid conducting a mini-trial, but may reject a purported dispute which has no evidential substance. An adjournment may nevertheless be granted under the overriding objective where late evidence may realistically affect the application and the claimant will suffer no substantial prejudice from delay. Any adjournment should be tightly controlled by a final evidence deadline and appropriate costs orders.

The claimants sought summary judgment on claims concerning performer’s rights and copyright in recordings of Jimi Hendrix’s 1969 Royal Albert Hall performances. The defendant relied on a chain of licences said to originate in a 1979 letter from the second claimant to the Everest Record Group.

The pleaded case identified that letter as the written licence. The defendant later sought to rely on further, late evidence indicating that Bernard Solomon might provide evidence of an earlier agreement. The central issue was whether the defendant had produced sufficient evidence of a licence to resist summary judgment, and whether the application should be adjourned to permit further evidence.

1. Summary judgment principles. The application was governed by the principles stated in Swain and Three Rivers. Summary judgment must not become a mini-trial or determine genuine factual disputes. A defendant cannot, however, rely on a spurious or shadowy defence presented as a factual dispute.
2. Evidence of the alleged licence. The 1979 letter was not readily capable of constituting the pleaded licence. It was unsigned by Everest, contained no apparent consideration, and read more naturally as a record of an earlier agreement. The defendant had produced no satisfactory evidence of the existence or terms of any earlier licence. The witness statement reporting what Mr Solomon might say was hearsay, lacked confirmation from the intermediary, and did not establish the necessary agreement with anything approaching the required certainty.
3. Adjournment. Applying the overriding objective, the court nevertheless granted a short adjournment. The evidence gave some reason to think that Mr Solomon might provide material capable of resisting summary judgment, although the judge remained sceptical. The defendant had to serve and file further evidence by close of business on 3 January 2008, subject to extension by agreement or order. If no further evidence was filed, the claimants would be entitled to enter judgment on the claim. The matter was to return on the first available date on or after 21 January.
4. Costs and pleading. The existing defence could not stand if the defendant’s case was changed from the 1979 letter to an earlier agreement. The defendant was ordered to pay the costs of the application to date in any event. Its conduct justified that order under CPR 44.3. The claimants had liberty to apply for an interim payment or summary assessment of costs.

Not an appeal. The judgment records no prior judicial decision.