Sony Music Entertainment UK Limited v Noel Redding Estate Limited & Anor

The court heard an appeal from an order of Deputy Master Rhys dismissing the defendant's CPR Part 11 application that the English action be set aside or stayed as forum non conveniens in favour of New York, or alternatively stayed pending determination of the New York proceedings. The governing domestic test was the Spiliada framework: the defendant bore the burden to show that another available forum (New York) was clearly or distinctly more appropriate.

The judge held that England had the most real and substantial connection because the claimants and defendant are U.K. entities, English law governs the substantive claims and the acts complained of occurred in the United Kingdom. The judge treated the 1970s Releases (executed in New York) as an important New York element but not the whole of the dispute and held that any question of New York law could be addressed by experts in the English proceedings. The court also rejected the contention that retained EU/English doctrines of "consent" had been shown to modify the effect of the Releases.

On the separate case-management stay application, the judge applied the correct, high-threshold approach (as reflected in Reichhold and explained in Athena Capital) and concluded there were not rare or compelling reasons or any other sufficient interest of justice to stay the English action pending the New York declaratory proceedings. The court granted permission to appeal but dismissed the substantive appeal.

Background and parties

• The Claimants are the estates/companies asserting entitlement to a share in sound recording copyrights and performers' rights in three Jimi Hendrix Experience studio albums. The Defendant (Sony Music Entertainment UK Limited) is a UK company licenced to exploit the recordings.
• The Claimants commenced English proceedings seeking declarations of ownership, performers' rights, beneficial rights and remedies for infringement; the Defendant relied on historic New York settlement documents ("the Releases") in defence.

Procedural posture

• The Defendant applied under CPR Part 11 to set aside or stay the English action on forum non conveniens grounds in favour of New York, or alternatively for a case-management stay pending the New York declaratory action commenced by the Hendrix companies and Sony Music Entertainment in New York.
• Deputy Master Rhys dismissed that application on 21 June 2022; permission to appeal was refused below and renewed to Mr Justice Edwin Johnson who heard the permission application and, subject to permission, the substantive appeal.

Issues framed

1. Whether New York was another available forum and was clearly or distinctly more appropriate than England under the Spiliada principles (forum non conveniens).
2. Whether the Releases, executed in New York, are governed by New York law and whether their effect is or may be modified by UK or retained EU law on consent.
3. Whether the English action should be stayed on case-management grounds pending the New York proceedings (the high-threshold question whether such a stay was in the interests of justice).
4. Subsidiary: whether the pleaded claim under CDPA 1988 s.191HB was viable as a claimant's personal claim.

Reasoning and conclusion

• The judge endorsed the Spiliada two-stage evaluative test and related authorities (including Conversant Wireless, VTB and Re Harrods) and emphasised correct characterisation of the "claim" as the matter to be tried.
• The judge accepted that the Releases are likely governed by New York law and will be a central issue, but held that they are not the entirety of the dispute: the claim includes English claims of infringement and involves UK parties and activities and English law. Consequently England has the most real and substantial connection.
• The court found no persuasive basis to treat the Releases as necessarily modified by retained EU/English concepts of consent on the material before the court and rejected the argument that it would be "perverse" to require New York courts to address issues of English law; expert evidence could be used if required in England.
• On the stay point, the judge applied the high threshold derived from Reichhold and Athena Capital (stays to await foreign proceedings are only appropriate in rare/compelling or exceptional circumstances) and concluded no sufficient interest of justice required a stay; the New York proceedings address only part of the dispute and the English court should not decline to decide justiciable English claims.

Outcome Permission to appeal was granted on the specified grounds but the substantive appeal was dismissed and the Deputy Master’s order was upheld. The parties were to be heard further on consequential orders.

Permission to appeal was granted in respect of the specified grounds but the substantive appeal was dismissed. The court held that England is the forum with the most real and substantial connection to the dispute, that the New York Releases (while important and likely governed by New York law) do not displace the English forum for the whole dispute, and that there were no rare or compelling case-management reasons to stay the English action pending the New York declaratory proceedings.

Appeal from the order of Deputy Master Rhys dated 21 June 2022 (Reference No. IL-2022-000013) refusing the defendant's CPR Part 11 application to set aside or stay the English action. Permission to appeal was initially refused below and was then renewed; this judgment is the first instance appellate determination (Appeal Reference: CH-2022-000137) concluded by Mr Justice Edwin Johnson in [2023] EWHC 941 (Ch).