Miller v Sutton & Anor

On an application for summary judgment, the claimant must show a real prospect of succeeding in the claim and of proving any essential disputed facts. An exclusive recording agreement granting rights in performances recorded under the agreement does not, on its face, govern recordings of live performances made outside its contractual recording arrangements. The claimant cannot satisfy that threshold through speculation, an unpleaded new case on appeal, or by reversing the evidential burden. The appeal was therefore dismissed.

Lawrence Miller brought negligence proceedings against Edmund Clive Sutton, a solicitor who had acted in the defence of proceedings brought by Experience Hendrix LLC concerning recordings of Jimi Hendrix performances. Experience Hendrix obtained summary judgment against Mr Miller and Purple Haze; the decision is reported at [2005] EWHC 249 (Ch) and [2005] EMLR 18. Mr Miller alleged that Mr Sutton had failed to rely on a 1965 exclusive recording agreement with Sue Records.

A Deputy Judge granted summary judgment on the allegations concerning that agreement, accepting that it might have been assigned to Yameta but holding that there was no reasonable prospect of proving that the Stockholm recordings fell within it. The appeal concerned the effect and scope of the Sue Records Agreement.

Appeal dismissed. The Chancellor delivered the leading judgment. Lord Justice Pitchford agreed and added that Mr Miller’s explanation of his earlier witness statement lacked credibility. Lord Justice Sullivan agreed with both judgments.

1. The burden on a summary judgment application rests on the claimant. Under Rule 24.2, where success depends on disputed facts, the claimant must show a real prospect of establishing at trial the facts essential to the cause of action. The burden does not shift to the defendant merely because the defendant disputes the claimant’s account.
2. The Sue Records Agreement granted Sue Records exclusive personal services in connection with producing phonograph records. Its clause 7 rights concerned performances recorded under the agreement. On the assumed basis that the Stockholm recordings were recordings of live performances, the agreement did not, on its face, extend to them. There was no evidence that Yameta and the relevant parties had agreed to treat those recordings as part of the agreement’s minimum recording obligations.
3. The evidence relied on by Mr Miller indicated that Yameta had consented to the recording by Swedish Radio. Consequently, the recording was not made under the Sue Records Agreement and did not involve a breach by Jimi Hendrix. The principle that a person cannot take advantage of his own wrong therefore gave no reason to prevent enforcement of performer’s rights by an assignee from his estate.
4. Mr Miller’s alternative case that the CD contained studio recordings made by Chas Chandler was raised clearly only before the Court of Appeal. It was inconsistent with the pleaded case and the evidence previously relied upon. An appeal from summary judgment must be decided on the material and arguments advanced below; the new case could not establish a real prospect of success.

The Deputy Judge’s reasoning was therefore correct, and the appeal was dismissed.

1. Court of Appeal (Civil Division) On 14 February 2013, the Court dismissed Mr Miller’s appeal.
2. High Court of Justice, Chancery Division On 4 April 2012, the Deputy Judge granted summary judgment on the allegations concerning the Sue Records Agreement and struck out the remaining allegations. Permission to appeal was later granted on the limited issue of the agreement’s effect.