Miller v Sutton & Anor

On an application for summary judgment in a professional-negligence claim, the claimant must show a real prospect that the alleged breach caused a different outcome in the underlying proceedings. Where an undisclosed agreement could have provided a defence only if the relevant recordings fell within its terms, the court must examine the agreement and the available evidence rather than assume that the original judge would have reached a different conclusion. Rights under an exclusive recording agreement did not extend to recordings made with the contractual party’s consent but outside the agreement and without breach of its terms. The negligence claim was therefore incapable of succeeding.

The claimant had controlled a company sued for infringement of performer’s rights in recordings of Jimi Hendrix concerts. The company’s defence had been summarily rejected in Experience Hendrix LLC v Purple Haze Records Ltd [2005] EWHC 249 (Ch). The claimant then sued the solicitor who had acted in those proceedings, alleging that he negligently failed to rely on an exclusive recording agreement between Sue Records Inc and Hendrix.

An earlier order by Eder J struck out the other allegations and permitted amendment concerning the Sue Records Agreement. The issue was whether that agreement gave the claimant’s company a realistic prospect of defending the original infringement claim.

1. The defendants’ application was allowed. Summary judgment was entered on the allegations concerning the Sue Records Agreement. The repeated allegations previously struck out by Eder J were also struck out, leaving no surviving issue.

2. The claimant had to establish an arguable chain of title showing that the benefit of the agreement had passed ultimately to his company. Although there was a reasonable prospect of establishing that rights outside the United States and Canada had been retained by Yameta and later transferred to the claimant’s company, that did not determine whether the recordings were covered by the agreement.

3. The court was in as good a position as the deceased original judge to assess whether the agreement could have affected the earlier summary judgment. The relevant question was whether the agreement gave the claimant’s company a reasonable prospect of defending the infringement claim.

4. The agreement concerned recordings made under the supervision of Sue Records to a commercial standard. The Stockholm recordings were recordings of live performances and were not made pursuant to the agreement. The evidence showed that Yameta consented to Swedish Radio making them. That consent meant both that the recordings were outside the agreement and that Hendrix had not breached it by permitting their creation.

5. Accordingly, the contractual rights did not apply to the Stockholm recordings, and an assignee of Hendrix’s estate was not precluded from enforcing performer’s rights. The costs were to follow the event, subject to detailed assessment if not agreed. Permission to appeal was refused because there was no reasonable prospect of success and no other compelling reason for an appeal.

The judgment describes earlier procedural steps in the same proceedings:

• High Court, Commercial Court: Eder J’s order dated 9 October 2011 struck out all allegations except the substance of the allegation concerning the Sue Records Agreement and transferred the proceedings to the Chancery Division.
• High Court, Chancery Division: the present court struck out the remaining allegations and entered summary judgment for the defendants.