Sheeran & Ors v Chokri & Ors

At the pleading stage, similar-fact allegations should remain in the proceedings if, assuming the pleaded facts can be proved, they could be relevant and admissible at trial. The court need not decide whether the evidence is ultimately sufficiently cogent. The two-stage approach in O’Brien v Chief Constable of South Wales Police requires consideration first of potential probative value and then of whether admission would be unjust because of prejudice, complexity, cost or other trial burdens. At the second stage, the decision is case-management and appellate intervention is limited. Inadequate particulars may be addressed by further information or a later strike-out application. Evidence may also be challenged when the actual evidence is adduced.

The claimants appealed against an order of Deputy Master Jefferis refusing to strike out pleaded allegations of similar-fact copying in a copyright action concerning “Shape of You” and “Oh Why”. The allegations relied on three other songs: “Photograph”, “Strip That Down” and “No Scrubs”. The Deputy Master considered that the allegations might be probative of copying and that their cost and complexity were not disproportionate to the value and importance of the dispute. The appeal concerned whether he had misapplied the two-stage approach in O’Brien v Chief Constable of South Wales Police, both as to potential probative value and as to proportionality and prejudice.

The appeal was dismissed. The reference to “The Rest of Our Lives” remained struck out, but the pleaded allegations concerning “Photograph”, “Strip That Down” and “No Scrubs” remained on the pleading.

1. The governing approach was that stated in O’Brien v Chief Constable of South Wales Police. The first question was whether, assuming the pleaded evidence to be true, it could logically support an issue requiring proof. The second was whether the evidence should nevertheless be admitted having regard to justice, prejudice, trial distortion, cost, complexity and burden.
2. At the pleading stage, the court was not deciding the admissibility or cogency of the evidence itself. The question was whether, if the pleaded facts were proved, they could be relevant and admissible at trial. That approach was supported by Perrin v Drennan and applied equally to an application to strike out.
3. The pleaded settlements and clearances, including the acceptance of melodic similarity and the allocation of substantial shares of music income, were capable of supporting an inference that copying might be established. They could therefore have potential probative value in relation to the allegation that “Oh Why” had been copied.
4. The Deputy Master had considered the increased cost, complexity and length of trial, the need for expert evidence, the effect on third parties, reputation and the value of the claim. His assessment was not shown to involve a misdirection or demonstrable error. The second-stage decision was a discretionary case-management decision, and the appellate court should not interfere absent a clear failure to observe the overriding objective.
5. The claimants remained entitled to seek further information. If the particulars were inadequate, or if the evidence ultimately lacked sufficient cogency or admissibility, further applications could be made.

• High Court (Chancery Division): Deputy Master Jefferis refused to strike out the similar-fact allegations concerning “Photograph”, “Strip That Down” and “No Scrubs”, while striking out the allegation concerning “The Rest of Our Lives”.
• High Court (Chancery Division): The appeal was dismissed. The Deputy Master’s order was upheld.