Experience Hendrix Llc v Purple Haze Records Ltd & Anor

LORD JUSTICE JACOB: This is an application made under Rule 3.1.2 or 3.17 or 3.91. In each case what is sought to be done is to revisit an issue decided by Neuberger LJ on 8 June 2005.

The background is this. The defendant company and Mr Miller, its moving spirit, were selling recordings of Jimmy Hendrix performances made in Stockholm. The claimants allege that that was a breach of rights which they have acquired, not copyrights rights but rights in performances. They sought summary judgment before Hart J, who held that they were right in their claim that there was no triable defence and accordingly granted judgment. The order consisted of an injunction and inquiry into damages and most significantly an order for the interim payment of costs in the sum of £25,000.

Hart J granted permission to appeal, saying that the case was not fanciful and that the matter was of general interest. Although he said the defence was not fanciful I have read his judgment and, at least as at present advised, cannot see anything wrong with it. But I do not take that into account in reaching my decision.

The defendants said they did not have the £25,000 which Hart LJ had ordered and which he had refused to stay the implementation of. The defendants applied to Neuberger LJ for a stay. The claimants also applied for Neuberger LJ for security for costs of the appeal. From the outset, one of the alternatives they sought was that the £25,000 which was due, in effect be converted into security.

There is no doubt that on the papers, therefore, before Neuberger LJ was the issue of whether or not the defendants could pay the £25,000. They were saying they could not, and that any grant of security would stifle their potentially meritful appeal. Neuberger LJ went into the evidence and came to the firm conclusion that the defendants had not shown that they did not have the money or could not raise it in some way or other, either from conventional sources such as banks or from some particular individual who might have an interest in the action. Neuberger LJ made an unless order that unless £25,000 was paid by 20 July the appeal should stand dismissed. Two days before 20 July this application was made to vary Neuberger J's order so as to relieve the defendants from the obligation to pay the £25,000 or have their appeal dismissed.

The basis of the application - and I emphasise this - is that the defendants now had better evidence of their financial position, not that they had found out anything new or that there had been any change of circumstances. It is simply that this time they want to have a better shot at showing the appeal would be stifling than last time. They want to relitigate the very issue before Neuberger LJ. They say that this falls within the ambit of CPR Rule 3.91. They say the court will consider all the circumstances. The rule then lists particular matters to be considered. The defendants say that every one of those listed matters is either in their favour or at least neutral; they point to the interest in the administration of justice. They say the appeal will be stifling. They say they made the application for relief promptly. (I am not really convinced of that, they had some five weeks, and they did it just two days before the last minute. But I do not think that matters one way or the other). They say the failure to comply was not intentional. They had no money, that is what they are attempting to prove now. Was there a good explanation for the failure? They said there was, but they have no money. Then they refer to the extent to which the party in default has complied with other rules. They say they have complied with every rule, so there is no problem there, whether the failure to comply was caused by the party or his legal representative.

So far as not paying the money is concerned, that is caused by their impecuniosity, they say. Likewise they say the trial date can be met. As to the effects on which the failure had to comply on each party, the effect of sub-rule (g) will be disastrous as far as they are concerned, and the only effect on other side would be that they are kept out of their £25,000 for a bit. Much the same goes for ground (i).

None of those matters are relevant, in my judgment. The issue before Neuberger LJ was heard and determined by him. The interest of the administration of justice are that when a party has a case, whether it is a substantive case or procedural, it should put the matter before the court for it to be determined. If that were not the rule, you could relitigate a point time and time again. Suppose the evidence were not good enough this time? Could they have yet another attempt at it? The answer is no. The due administration of justice requires that a party puts its case forward at one go; not that it puts its case forward and if it is not good enough it has another attempt at it.

Mr McDonnell, who appears for the defendants, suggested that perhaps the trouble here was that the defendants were for some of the time before the hearing before Neuberger LJ acting in person. I do not accept that. It is quite clear that solicitors had come on the scene, whether before a conditional fee had been finally signed or until later I do not know. But what is clear is that by the time the matter came before Neuberger LJ lawyers were properly instructed. If the evidence was inadequate they could have asked for an adjournment, which they did not. What the defendants cannot do is to go forward on inadequate evidence, lose and then come back and say: "Can we do better this time?" Accordingly I refuse to vary the order of Neuberger LJ, save perhaps to the extent that I may consider an application to extend the time for compliance. Otherwise the appeal will stand dismissed today. That I would do simply on the basis, subject to what Mr Arnold says, that time has been taken up with this application, rather than trying to comply with the order. I would not consider a very long time for compliance.