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

On an application to strike out or obtain summary judgment, the court must distinguish a deficient pleading from a claim requiring factual or expert determination. A claim should proceed where the claimant has a realistic, rather than fanciful, prospect of success; the court must avoid conducting a mini-trial.

Procedural joinder rules protect defendants from subsequent claims for the same remedy and confer a discretion to dispense with joinder. Foreign-law issues concerning releases, and the scope of consent to exploitation of performers’ rights, may require trial evidence. Claims based on secondary infringement require a properly arguable basis for inferring the defendant’s knowledge or reason to believe that copies are infringing.

The claimants, companies said to have succeeded to the estates of Noel Redding and Mitch Mitchell, sought declarations concerning ownership of copyright in recordings made by the Jimi Hendrix Experience and performers’ property rights. Sony applied for strike out and/or summary judgment of the whole claim or parts of it.

The application relied on alleged non-joinder, defective relief, deficiencies in the pleaded chain of title, releases and New York discontinuances, limitation, the scope of performers’ rights, allegations concerning the recording agreement, and secondary infringement. The court also considered whether the claimants could rely on evidence of New York law.

The central issues were whether the claims had a realistic prospect of success and whether the pleadings disclosed sustainable causes of action.

1. Disposition. The copyright and performers’ property-rights claims were allowed to proceed to trial. Claims concerning beneficial ownership and unjust enrichment were withdrawn. The claim for remuneration under section 191HB of the Copyright, Designs and Patents Act 1988 was withdrawn. Paragraphs 8, 19, 30 and 31 of the Particulars of Claim were struck out or dismissed.
2. For summary judgment, the relevant question was whether the claim had a realistic rather than fanciful prospect of success. The court could consider evidence reasonably expected to be available at trial, but should not conduct a mini-trial. The pleaded chain of title was sufficiently supported to meet that threshold.
3. CPR 19.3 was directed to protecting defendants against later claims for the same remedy. It conferred a discretion to order otherwise. The alleged non-joinder did not justify strike out, particularly where the proposed joint owners asserted ownership on Sony’s side and caused no identified prejudice.
4. The releases and New York discontinuances raised triable questions of New York law. The court admitted the claimants’ report despite procedural defects because it demonstrated sustainable arguments and responded to New York-law evidence relied on by Sony. The releases therefore could not be treated at this stage as a complete defence.
5. The original consent to fixation did not necessarily exhaust later performers’ property rights. The scope of consent and whether later exploitation was within the transitional provisions required factual consideration. The secondary-infringement allegations, however, afforded no credible basis for inferring Sony’s knowledge or reason to believe that the copies infringed the claimants’ rights.

This was a first-instance decision. The judgment records that an earlier jurisdictional decision was dismissed by Deputy Master Rhys and that the appeal was dismissed by Edwin Johnson J, whose judgment was reported at [2023] EWHC 941 (Ch).