Barrett v Universal-Island Records Ltd & Anor

In this action the claimant is Mr Aston Barrett who sues on his own behalf and as administrator of the estate of his late brother, Carlton Barrett who died in 1986. The defendants are two companies involved in the sound recording industry, Universal-Island Limited (“UIL”) and UMG Recordings Inc (“UMG”). UIL formerly bore the name Island Records Limited. In this action Mr Barrett makes various claims for compensation arising out of the exploitation of recordings made by the famous Jamaican reggae band, “Bob Marley and the Wailers”. As will be explained below, that was the last of a series of reggae bands formed by and featuring Bob Marley. For that reason I will refer to it as the “Final Marley Band”.

I have a number of applications before me. The first two are to allow Mr Marley’s widow and his adult children, together referred to as “the Marley Adult Beneficiaries”, to be added as defendants to the action under the provisions of CPR part 19 rule 19.2(2)(b) and 19.4(2) for the purpose of making a counterclaim against Mr Barrett and for permission to bring that counterclaim. The most important applications by the defendants are to extricate themselves from this litigation either by having the claim form struck out and the action dismissed under CPR rule 3.4(2)(b) or the inherent jurisdiction as an abuse of process or that summary judgment be given against Mr Barrett on his claim and for the defendants and the Marley Adult Beneficiaries on their counterclaims on the basis that Mr Barrett has no real prospect of succeeding on his claim and no real prospect of successfully defending the counterclaim. It appears that the reason for applying to add the Marley Adult Beneficiaries is to bolster the attempt to short-circuit these proceedings.

Bob Marley, who died intestate in 1981, formed a reggae band in about 1963. It was probably a partnership and performed under the name “The Wailing Wailers” and subsequently as “The Wailers”. All the members of the band were Jamaican. That band remained in existence until late 1973 or early 1974 when a new band, of which the Barrett brothers were members, was formed. This is the band which performed under the name, and was known as, “Bob Marley and the Wailers”.

Since Mr Marley’s death, numerous disputes have arisen and proceedings been brought by various parties, including some former band members, over the right to share in the proceeds of the still-popular recordings made by the Final Marley Band. The current action is the latest in the series. There is no dispute that the Barretts were members of that band and that they were composers of some of the songs performed by it. Understanding the issues raised on these applications requires an overview of the history of the band and the disputes. As both Miss Elizabeth Jones QC, who appears on behalf of the defendants and the Marley Adult Beneficiaries, and Mr Richard Arnold QC, who appears on behalf of Mr Barrett, agree, the history leading to the current dispute is complicated. The analysis set out below is derived, in large part, from the helpful skeletons of counsel, particularly that prepared by Miss Jones and her junior, Mr Daniel Lightman.

I have already referred to the fact that, before the creation of Final Marley Band, Mr Marley had performed in a reggae band called the Wailing Wailers or the Wailers. The other members of the partnership which formed the core of that band were Neville Livingston and Peter Mackintosh. On 25 August 1972 an agreement (“the 1972 Recording Agreement”) was entered into between UIL (under its then name, Island Records Limited) and Messrs Marley, Livingston and Mackintosh. It is said to be relevant to the issues I have to decide that the three individuals all signed the 1972 Recording Agreement on the lines provided above their typed names. Although they were not members of that partnership, Aston and Carlton Barrett and others performed on two albums released by the band under this contract.

When Mr Livingston and Mr Mackintosh ceased working with Bob Marley in early 1974, he continued to perform with others, including the Barrett brothers. On 27 August 1974 a recording agreement (“the 1974 Recording Agreement”) was made between UIL (which at that time was still called Island Records Limited) and Bob Marley. This is one of the contracts which is said to give rise to some of the claims made in these proceedings. The album “Natty Dread” was made under this agreement. The names of Aston and Carlton Barrett appear at the top of the 1974 Recording Agreement, but they did not sign it. It was negotiated by Mr Raphael Tisdale who was, at that time, Mr Marley’s lawyer. Now, some thirty years later, he has no recollection why the names of Aston and Carlton Barrett appear on the agreement. The 1974 Recording Agreement was terminated, by a letter dated 5 August 1975 from UIL to Bob Marley. It was signed by Mr Marley, but not by either of the Barrett brothers.

On 6 August 1975, an agreement in writing (“the 1975 Recording Agreement”) was made between Island Inc and Media Aides Limited (“Media Aides”), a company owned and controlled by Bob Marley. It should be noted that Island Records Inc is not the same company as UIL. It is a company which ceased to exist on 30 November 1999 on which date all of its assets and liabilities were assigned to UMG. Aston and Carlton Barrett, and others, performed on recordings made under 1975 Recording Agreement as they had under the 1974 Recording Agreement. The recordings comprising the albums “Live!”, “Rastaman Vibration”, “Exodus”, “Kaya”, “Babylon by Bus”, “Survival”, “Uprising” and “Confrontation” (the “Eight Albums”) were made under this Agreement.

Most of the songs which were recorded on the albums recorded under these two agreements were written by Bob Marley. However, at least for the purpose of these applications, it is accepted that some were written by Aston and Carlton Barrett. The ownership of the copyright in the latter songs is one of the issues in dispute.

The Final Marley Band undertook tours to promote the sale of records and merchandise was also sold bearing Bob Marley’s name and image. The various musical and promotional activities resulted in money being paid to Bob Marley. It appears that such money was derived from a number of sources. Artists royalties were paid to him by the record companies pursuant to their obligations under the recording agreements. So-called “mechanical royalties”, were paid by the record company to the person who they thought was the owner of the copyrights in the songs which had been included on the various records. Performance royalties were paid by collection societies, particularly ASCAP in the USA. Income was also derived from touring and the sale of merchandise.

The people performing from time to time with Bob Marley, including the Barretts, were paid some money by Bob Marley. However, after Bob Marley’s death in 1981, disputes arose as to the entitlement of members the Final Marley Band to share in its continuing income stream. It was suggested that the Wailers, and in particular the Barretts, were partners with Bob Marley on the basis that Bob Marley was entitled to 50% of the profits from the money-generating activities referred to above and the other partners were entitled to 50% between them. This was the claim advanced by Aston Barrett. On the other hand the estate of Bob Marley has always maintained that the other members of the band were paid by Bob Marley on a more or less ad hoc basis for services rendered and that was the full extent of their entitlement.

On 11 May 1981, Bob Marley died. On 17 December 1981 letters of administration to his estate (“the Estate”) were issued to Royal Bank Trust Company (Jamaica) Ltd, which subsequently changed its name to Mutual Security Merchant Bank and Trust Company Ltd (“Mutual Security”). Rita Marley, Bob Marley’s widow, and George Desnoes were also initially appointed administrators but resigned later. Subsequently J. Reid Bingham was appointed ancillary administrator in New York. The beneficiaries of the estate were Rita Marley and Bob Marley’s 11 children, most of whom were infants in 1981.

Since the relevant Jamaican legislation contained no express provision for the assets of an intestate’s estate to be held upon trust for sale, in October 1987 Mutual Security applied to the Jamaican court for directions as to whether it was under a duty to sell the Estate’s musical rights and, if and so far as necessary, for authority to retain them unsold. On 8 October 1987 Morgan J declared that it was their duty to sell the rights but directed their retention until further order of the court.

On 27 April 1988 Mutual Security entered into a conditional agreement (“the Conditional Agreement”) to sell certain of the assets of the Estate including various music-related assets and rights (“the Original Assets”), to Island Logic Inc. The latter was a company then in the same group as UIL and Island Inc, having a common ultimate parent, Island International Limited, a Bahamian company. The Original Assets included the right to receive recording royalties from UIL and Island Inc (whether vested in the Estate or companies owned by the Estate). It also included rights in relation to copyrights in songs owned by the Estate or companies owned by the Estate (including Media Aides, Tuff Gong Music Ltd and Bob Marley Music Ltd). The Conditional Agreement was executed pursuant to a written offer from the purchaser which imposed a condition that the binding effect of the agreement was to be dependent upon the prior approval of the court. Clause 5 of the Conditional Agreement accordingly provided for completion to take place on 30 June 1988 or 21 days after the Court’s approval of the terms, whichever should be the later.

On 5 May 1988 Mutual Security issued an originating summons seeking an order that the Conditional Agreement be confirmed subject to such modifications (if any) as the court might think fit and as might be agreed and that Mutual Security be at liberty to carry the same into effect. To this summons all of the Marley beneficiaries were made parties. It appears the Wailers, or at least some of them, tried to intervene. On 30 December 1988 Wolfe J overrode the objections of the Marley beneficiaries and authorised Mutual Security to carry the Conditional Agreement into effect. The Jamaican Court of Appeal dismissed the Marley beneficiaries’ appeal and sanctioned the proposed transaction subject to two modifications which, if accepted, would have the effect of substantially increasing the value of the consideration. The purchaser subsequently agreed to the modifications proposed by the Court of Appeal. The beneficiaries appealed to the Privy Council.

On 18 December 1989, Island Logic Inc assigned its rights under the Conditional Agreement to Island Logic Ltd, and on the same day pursuant to the Conditional Agreement, the Estate assigned to Island Logic Limited the song copyrights which it had agreed to sell under the Conditional Agreement. It appears that on the same day the other music-related assets were also provisionally assigned.

On 13 October 1990 the Privy Council allowed the Marley beneficiaries’ appeal against the decision of the Jamaican Court of Appeal and ordered the matter to be remitted to the Supreme Court of Jamaica for further consideration. A further decision of the Jamaican Court followed on 20 December 1991, pursuant to which a further agreement was entered into on 10 September 1992 between (1) Mutual Security, as Administrator of the Estate as seller, and (2) Island Logic, Ltd and the then Marley adult beneficiaries as purchasers. As a result, both Island Logic Ltd and the Marley Adult Beneficiaries became the purchasers of the assets from the Estate, including the rights to receive royalties from UIL and Island Inc under the 1974 and 1975 Recording Agreements respectively. By this time Island Inc and UIL had been sold to Polygram and were no longer in the same ownership as Island Logic Ltd.

The rights to receive record royalties from UIL and Island Inc (that is to say, now from the two Defendants in this action) pursuant to the 1974 and 1975 Recording Agreements have been further assigned and are now owned by 56 Hope Road Ltd, a company of which the shareholders are the Marley Adult Beneficiaries and two more of Bob Marley’s children.

Since Bob Marley died, various of the musicians who performed with him as “the Wailers”, including Aston and Carlton Barrett, have asserted that “the Wailers”, being a collection of people the identity of whom varied from time to time, were in partnership with Bob Marley. They have also asserted and sought relief in at least three pieces of litigation. The nature of those claims will be discussed below.

On 2 December 1981, various of the Wailers, including Aston and Carlton Barrett, entered into an agreement (“the December 1981 Agreement”) with Rita Marley who purported to act on behalf of the Estate. Under the December 1981 Agreement those purporting to represent the Estate agreed to pay certain sums to certain of the Wailers, including Aston and Carlton Barrett. Furthermore in that Agreement, the Wailers, including Aston and Carlton Barrett, admitted that the name “Bob Marley and the Wailers” always had been and always would be owned by Bob Marley alone and that the Wailers had

Significant sums were paid out of assets owned by the Estate to the Wailers, including Aston and Carlton Barrett, over a period of several years in accordance with the terms of the December 1981 Agreement. However these payments came to an end in the circumstances set out below.

I am told that in the summer of 1986 it was discovered that Bob Marley’s former lawyer and accountant, David Steinberg and Marvin Zolt, had persuaded Rita Marley to forge certain stock transfer documents so as to defraud the Estate. Rita Marley subsequently resigned as an administrator. The money paid to the Wailers under the December 1981 Agreement was paid out of moneys kept out of the hands of the administrators in this way. Mutual Security started proceedings for a declaration that the December 1981 Agreement was void and not binding on the estate. Subsequently the Wailers started proceedings for a declaration that that the December 1981 Agreement had been procured by undue influence. All parties are now agreed that it is of no effect.

It was as a result of the discovery of this alleged fraud that on 5 December 1986 an action (“the 1986 New York Action”) was commenced in the United States District Court for the Southern District of New York by J. Reid Bingham (the ancillary administrator of the Estate) seeking recovery of monies misappropriated by Mr Steinberg and Mr Zolt. In the course of that Action, six of the individuals who had performed with Bob Marley, including the Barretts, sought to intervene. The pleading in support of that application is dated 29 April 1987. In fact Carlton Barrett had died ten days earlier on 17 April.

In that pleading the six individuals sought to advance claims against the defendants to the 1986 New York Action. This included the assertion that the six would-be interveners were partners with Bob Marley and were entitled to 50% of the profits and assets of the alleged partnership. Among other relief; the six individuals sought a declaration against the ancillary administrator of the Estate in New York that they were equal partners with Bob Marley. The application to intervene in the 1986 New York Action was dismissed on 18 June 1987 and an appeal against that dismissal was itself dismissed on 14 January 1988.

As stated above, the Estate had conditionally agreed to sell the music related assets in April 1988 and on 30 December 1988 Wolfe J made an order permitting that sale to be carried through. On 6 January 1989, an action (“the 1989 Jamaican Action”) was commenced in Jamaica by Aston Barrett and others against Mutual Security as administrator of the Estate. Neither Carlton Barrett, who had died nearly two years previously, nor his estate were party to those proceedings. In that action, the plaintiffs sought a declaration that during Bob Marley’s lifetime they were partners with him in the business of recording, producing, retailing and performing certain musical and other works, an order that the Estate account to the plaintiffs for their 50% share of the royalties or other income received as the result of the partnership and an injunction restraining the Estate from disposing of any of the assets of the Estate affected by the plaintiffs’ claim.

In December 1991 the Court in the Jamaican Action approved the sale of the Estate’s assets as had been sought by Mutual Security. Thereafter the Marley Adult Beneficiaries and Island Logic Ltd gave an indemnity to Mutual Security and took over the defence of the action. The Jamaican Action was to come on for determination in early 1994. Shortly before the trial was due to take place, settlement negotiations took place. This eventually led to the 1994 Settlement Agreement referred to below. The result was that, sometime in 1994, the 1989 Jamaican Action was discontinued.

On 9 August 1989, an action (“the 1989 New York Action”) was commenced in the United States District Court Southern District of New York by the same parties as were plaintiffs in the 1989 Jamaican Action. The Defendants were Island Logic, Inc and Island Inc. Island Logic Inc had by then provisionally acquired certain of the assets of the Estate from Mutual Security pursuant to the Conditional Agreement.

In the 1989 New York Action it was again alleged that there had been a partnership between Bob Marley and the Wailers. It was alleged that

As will be discussed further below, various passages in the complaint reinforced the claim that Bob Marley was the managing partner of the partnership.

On 2 November 1989 the 1989 New York Action was stayed pending the outcome of the 1989 Jamaican Action. On 14 October 1994 the 1989 New York Action was dismissed “with prejudice” by agreement between the parties pursuant to paragraph 6 of the 1994 Settlement Agreement referred to below.

On 2 March 1994, an agreement (“the 1994 Settlement Agreement”) was made between Island Logic Limited, the Marley Adult Beneficiaries (Julian Marley having by then joined that class) and the plaintiffs in the 1989 Jamaican Action, including Aston Barrett. The agreement had the effect of settling the 1989 Jamaican Action and the 1989 New York Action and the parties to it were represented by lawyers. I am told that it was signed after months of negotiations. Although Aston Barrett was a party to it, Carlton Barrett’s estate was not. Because a great deal rests on the scope and effect of the 1994 Settlement Agreement, it is convenient to set out the most important provisions here. After identifying the parties (Aston Barrett being included amongst those referred to as “the Wailers”), it provides:

Mr Arnold describes the 1994 Settlement Agreement as incorporating “extravagant” language. It certainly appears to have been designed to put a stop, once and for all, to claims made by, inter alios, Aston Barrett arising out of his years as a member of Bob Marley and the Wailers. However, on 29 November 1999 a lawyer acting for the claimant wrote to Mr Peter Shukat, who is the New York lawyer now representing the Marley family. The letter raised issues about the 1994 Settlement Agreement and other agreements made in March 1994. Subsequently Aston Barrett wrote personally to Cedella Marley raising a demand against the Marley family rather than any record company.

On 1 March 2001, New York and English lawyers representing Aston Barrett held a press conference announcing an intention to bring ‘‘multiple legal claims’’ against the Estate and “Island Music”, including claims in “copyright, defamation, and breach of fiduciary duty”. It was asserted that

On 9 March 2001 Charles Russell, solicitors to the claimant, wrote to UIL claiming under the 1974 Recording Agreement. This was the first occasion on which Aston Barrett had asserted to any Island Record company that he and his brother were a party to the 1974 Recording Agreement. No mention was made in this letter of the 1975 Recording Agreement.

On 16 May 2001 Letters of Administration of the estate of Carlton Barrett were granted to Aston Barrett in Jamaica. Following certain negotiations which failed to resolve Mr Barrett’s claims, on 8 January 2002 the claim form in this action was issued with Aston Barrett suing both on his own behalf and as administrator of his late brother’s estate.

The assertions set out in the particulars of claim (PoC) can be summarised as follows.

This, however, is not an end to the claims advanced by Aston Barrett. He has applied to amend the particulars of claim by adding further claims in the alternative. As I understand it, the defendants object to these on the basis that they are no better, or are worse, than those already pleaded. For the purpose of dealing with all the issues raised on this application, I will allow the amendments sought.

The new claims are as follows. First it is said that if, contrary to the claimant’s primary case, the Barretts consented to the making and issuing to the public of the compositions in the various record albums referred to above and consented to the making and issuing to the public of copies of the copyright musical compositions, that was done gratuitously and in the mistaken belief that the Barretts would receive payment from the defendants for such exploitation. It is pleaded that no payment has been made for in excess of six years and that, as a result, the defendants have been unjustly enriched at the Barretts’ expense. Furthermore it is said that the consent was revoked by one or other of three letters sent on 29 November 1999, 9 March 2001 and 25 April 2001.

The defences pleaded are extensive. Insofar as necessary, they will be referred to below in relation to the claims to which they respond. There is also a counterclaim for an injunction to restrain Aston Barrett both in his personal capacity and as administrator for the estate of his brother from continuing these proceedings or bringing or assisting in bringing proceedings in any other form or forum in any jurisdiction against UIL, UMG or any other company in the Island Records group in respect of recordings made with Bob Marley and in respect of any musical compositions featured on any records made by the defendants or their licensees.

The current applications by the defendants fall into two categories. First it is said that, as a result of the 1994 Settlement Agreement and the with prejudice withdrawal of the 1989 New York Action, Aston Barrett is precluded from bringing or pursuing these proceedings. Alternatively, these proceedings should be struck out, on substantially the same grounds, as an abuse of process. For convenience these are referred to below as the personal disqualification objections. Second, it is argued that Aston Barrett’s claims are so insubstantial and the defences are so strong, that the former should be struck out and summary judgment be given on the latter at this stage. For convenience these are referred to below as the substantive objections. Before considering these, I must consider the approach to be adopted to resolving this dispute.

These applications are brought under the court’s inherent jurisdiction to prevent an abuse of process and under CPR 3.4 and 24.2. The latter provide, insofar as material, as follows:

Mr Arnold draws my attention to Wenlock v Maloney [1965] 1 WLR 1243, Williams & Humbert Ltd v W & H Trade Marks (Jersey) Limited [1986] AC 368 and Three Rivers DC v Bank of England (No 3) [2001] 2 All ER 513. He says that, together, these authorities indicate that normally it is not appropriate to strike out or grant summary judgment where to do so involves conducting a mini-trial with a minute and protracted examination of the documents and facts and the resolution of prolonged and serious argument. Indeed, at the beginning of this hearing, Mr Arnold invited me to stop the application in its tracks. He noted that the time estimate for the application was four days, compared with a time estimate for the whole trial of ten days, that the application was supported by lengthy witness statements supplied by the defendant which made reference to numerous documents exhibited in two bulky lever arch files, and that this had been responded to by a long reply statement which referred to additional documents. A round of reply evidence from the defendant was also served. The complexity of the case is increased by the fact that, according to Mr Arnold, a number of documents which are relevant to the issues raised no longer exist or cannot now be found. Mr Arnold also referred to the length of the skeleton arguments. His own extended to some 56 paragraphs. Miss Jones’, ignoring the chronology, extended to some 149 paragraphs and cross-referred to dozens of the documents in the lever arch file exhibits. In addition to this, it should be noted that two bulky lever arch files of authorities were produced for the hearing and, inevitably, further authorities were added as the hearing progressed. Mr Arnold argued that this application was a mini-trial and should be stopped on that basis alone. I did not accede to that argument and the hearing lasted four days, as predicted. Miss Jones’ opening submissions took more than two days. Throughout, Mr Arnold has maintained his position that this is not a suitable case for summary determination.

Miss Jones does not dispute that the Wenlock, Williams & Humbert and Three Rivers cases are relevant to the determination of the application for summary judgment but she argues that none of them were concerned, as this application is in part, with applications to strike out for abuse of process. Furthermore she argues that one must go beyond considerations of the mere length of the application. If, in this case, justice to the defendants involves the court in taking some care and time in analysing the claimant’s case in order to appreciate how little substance there is in it, then it is proportionate to do so.

Neither CPR Part 24.2 nor 3.4(2) draws a distinction between applications for summary relief on the ground of abuse of process and other summary applications. In both cases the court is being invited to deprived a party of its normal entitlement to a full trial of its claim or defence. To do that at an early stage, the court must have a high degree of confidence that the claim or defence, as the case may be, will not succeed at the trial. I can see no reason in principle why applications based on allegations of abuse of process should be treated in any different way to other summary applications for final relief. The rule that such applications should not be allowed to develop into mini-trials applies as much to one type as the other.

The authorities relied on by Mr Arnold deal with two considerations. First, a court should not strike out a claim or defence on a summary application unless it is confident that no injustice will be done thereby. If it appears that there is a real, as opposed to fanciful, prospect of the claim or defence succeeding at the trial, a trial there must be, even if the court has a strong suspicion that the claim or defence will fail. Second, proper case management, which benefits not only the parties to the application but also all other parties waiting for an early slot in the court’s diary, demands that the time given to summary applications is not disproportionate to the benefits to be achieved. These considerations are related. The longer the time spent on a summary application, the more confident a court may be as to the likely outcome at the trial but that does not mean that it is appropriate to spend whatever time it will take on a summary application to reach confidence as to the outcome at the trial. Spending a few days on a summary application which, if successful, may abort the necessity for, or significantly reduce the expected duration of, a trial due to last some months is likely to be a worthwhile use of court time and is proportionate. Spending that sort of time when trying to short-circuit a trial due to last, say, two weeks, is likely to be disproportionate. Furthermore, it must be borne in mind that, as with applications for the determination of preliminary points, the savings to be made on an application for a strike out or summary judgment may be illusory. An application which fails, and which involves an appeal, will result in the parties having spent more time and money on the litigation and may well delay the trial. That may be an acceptable risk where a comparatively short summary application carries a reasonable prospect of disposing of or significantly shortening a much longer trial. It is less likely to be so where the summary application itself is likely to be comparatively lengthy and complex.

These are factors which pointed in favour of an early dismissal of this application, as sought by Mr Arnold. The difficulty is that, at first instance, it can be difficult to shut out the applicant before all the arguments have been deployed. If the defendants’ case is strong, it could be argued to be a denial of justice to refuse to listen to their arguments. Having listened to them, it would not be fair to refuse to listen to the equally extensive arguments advanced against them. An appellate court is not in the same position. Hopefully it will have the advantage of a first instance judgment to help it decide at the outset whether the applications are suitable for summary determination. In any event, I declined, perhaps incorrectly, to stop this application in its tracks. The result is that I have heard full arguments on both sides and cannot ignore them now.

There is one other matter of general principle which should be considered before turning to the grounds of advanced for and against summary relief here. In most cases where the court has come to a clear conclusion on a summary application that the claimant or defendant will almost certainly fail at the trial, it will exercise its power to give summary judgment or to strike out. However CPR Part 3.4(2) only provides that the court “may” strike out and CPR Part 24.2 provides that the court “may” give summary judgment. This is the classic language of discretion. Furthermore CPR Part 24.2 also contemplates that summary judgment may be refused in cases where a party has no real prospect of succeeding on an issue but where there are other compelling reasons why the case or issue should be disposed of at a trial.

It is not normally in the public interest that court time should be taken up hearing a full trial when the outcome can be confidently predicted in advance. Similarly it is not normally just and proportionate for a party to be put to the delay, expense and dislocation of a trial when it is clear, well in advance, that it will succeed. What, then, are the circumstances in which a court can refuse to strike out or grant summary judgment notwithstanding the apparent inevitability of the outcome at the trial? The discretion referred to above is unqualified. It is neither possible to foresee all circumstances in which it should be exercised nor useful to try to do so. However in some cases it may be appropriate to exercise the discretion where a strike out or summary judgment would not result in the saving of court time or relieve the winning party of the need to fund and participate in the trial. If, notwithstanding a strike out or summary judgment, there is still likely to be a trial in which, in substance, the same parties will be involved and substantially the same issues will need to be tried, then the court may exercise its discretion to refuse summary relief. The same result may be reached another way. Even when a party has a very weak claim or defence, it may not be appropriate to deprive it of the remote chance of succeeding at the trial where there is going to be a trial of those issues even were the application to succeed. Allowing a party to advance a weak claim or defence which puts no significant additional burden on his opponent nor adds significantly to the time to be taken up by the court in determining the dispute, imposes no significant hardship on the opponent and does not significantly inconvenience other parties waiting for an opportunity to come before the court. Whether these considerations have any application in this case will be considered below.

These arise out of the 1994 Settlement Agreement and the with prejudice dismissal of the 1989 New York Action. Miss Jones says that the whole purpose of the settlement and the dismissal were to put an end, once and for all, to the Wailers’ attempts to have further bites of the Bob Marley cherry. Three sets of litigation are enough. It is for that reason that the Settlement Agreement is drafted in as wide terms as it is. Miss Jones points to the preamble to the 1994 Settlement Agreement and particularly its reference to the Wailers having made “certain claims” in the Jamaican and 1989 New York Actions. She says that one of the purposes of the settlement was to put an end to those claims. Furthermore, the wording of Clause 5 of the 1994 Settlement Agreement could not be more all-embracing. The release of all claims which “the Wailers ever had, now or hereafter can, shall or may have against the Releasees” must encompass the various types of claim now or sought to be advanced by Aston Barrett. In support of these arguments, Miss Jones has taken me in some detail through the claims which have been raised or alluded to, whether in the three sets of proceedings, correspondence or otherwise, by various members of the Wailers or their representatives at one time or another during the 20-odd years since Bob Marley died. She argues that it is necessary to understand the extent of the disputes raised or alluded to at various times over the years and their economic impact in order to understand the 1994 Settlement Agreement. She says that it is only with that understanding that the strength of the defendants’ application for summary relief can be appreciated.

Miss Jones asks for summary judgment on her clients’ application for an injunction restraining Aston Barrett from suing. She acknowledges that the 1994 Settlement Agreement does not include an express promise not to sue, but one has to be implied. Alternatively, she says her clients should obtain summary relief on their claim for specific performance of the agreement to release.

In the further alternative, Miss Jones argues that these proceedings are an abuse of process. At the forefront she places the with prejudice dismissal of the 1989 New York Action. She says that those proceedings were between Aston Barrett on one side and Island Logic Inc and Island Inc on the other. The latter company was a party to the 1975 Recording Agreement. She has taken me with care through the pleadings in that action and points out that what Aston Barrett was seeking was, inter alia, an adjudication of entitlement to future royalties, which is something which the current action also seeks to secure. She also says that some of the earlier claims are inconsistent with claims now advanced and that this also indicates an abuse of process. She accuses the claimant of changing his claim to meet his needs from moment to moment. Whereas consistently in the past he had asserted that Bob Marley and the Wailers was a partnership, with Bob Marley being the managing partner, so that the 1974 and 1975 Recording Agreements were entered into by Mr Marley on behalf of the partners, now it is being asserted, at least in part, that the Barretts entered into those Agreements themselves and for their own individual benefit so that they have a personal contractual entitlement to royalties.

Mr Arnold argues that the Settlement Agreement cannot have been intended to have the wide effect advanced on behalf of the defendants. It cannot have been intended to cover “any” future claim no matter how arising. It must be construed as only covering claims in relation to the Assets as defined in the Settlement Agreement itself. He says that none of the claims now being advanced by Aston Barrett fall within that more limited construction of the Agreement and it is not possible to say that it covers the copyright, performers’ rights and unjust enrichment claims. He also contests the scope of the Jamaican and New York Actions. He says that, if the 1994 Settlement Agreement was meant to cover all possible claims, including copyright and performers’ rights claims, why did the Barretts continue to receive copyright royalties as writers of the six compositions from the American collecting society ASCAP. For reasons set out below, I do not think it is necessary to enter into the minutiae of these disputes.

Whatever the scope of the Settlement Agreement, neither the current defendants nor Carlton Barrett were parties to it. Miss Jones seeks to get round the first of these problems as follows. She argues that the Marley Adult Beneficiaries should be allowed to intervene in these proceedings and to counterclaim for enforcement of the terms of the Settlement Agreement. She relies on a number of authorities including Deepak v ICI [1999] 1 Lloyds Rep 387 and Snelling v John Snelling [1973] 1 QB 87 in support. The Marley Adult Beneficiaries and Island Logic Ltd have a direct commercial interest in the outcome of this litigation because, as a result of various indemnities given, they will eventually have to pay if Mr Barrett succeeds in the present action. It is therefore right that they should be allowed to intervene to enforce the effective immunity from suit which was put in place in 1994. Furthermore she says that it is an implied term of the Settlement Agreement that Aston Barrett and others would not sue any of the released parties, that is to say any other parties identified in Clause 5. It would amount to equitable fraud to allow Aston Barrett to continue as a claimant in the current proceedings.

Mr Arnold indicated to me that he neither opposed the Marley Adult Beneficiaries being added as additional Part 20 claimants nor the application to make consequential amendments to the counterclaim. He objected to the Beneficiaries being added as defendants to the action, but only on the ground that it was unnecessary. As I indicated during the hearing, I am prepared to allow these parties to be added both as defendants and Part 20 claimants and to make the necessary amendments to the counterclaim. However doing that does not clear the defendant’s path to victory on this application. Mr Arnold disputes that the Marley Adult Beneficiaries have any entitlement to sue. He disputes the existence of any relevant indemnities. Furthermore, the indemnities, if they exist, do not entitle the Marley Adult Beneficiaries to raise claims against Aston Barrett. In addition, he says that there is no basis upon which to imply a term into the 1994 Settlement Agreement that the Wailers, including Aston Barrett, would not sue. For reasons set out below, it is not necessary to analyse whether Miss Jones will clearly succeed on her responses to these points.

Whatever else may be said about the Settlement Agreement, it did not purport to bind Carlton Barrett. Neither he nor his estate was a party to the Jamaican or the New York Action which were settled, nor was he indirectly caught by the provisions of the Settlement Agreement. The fact that proceedings might be brought on behalf of his estate was acknowledged in Clause 7 of the Settlement Agreement.

Miss Jones’ response is to argue that there is an implied term of the Settlement Agreement which prohibits Aston Barrett from bringing proceedings on behalf of his late brother’s estate. She says that such a term is to be implied in order to give business efficacy to the settlement. She accepts that, even if she is right on this issue, someone else (perhaps with the hidden encouragement of Aston Barrett) could assume the role of administrator of Carlton’s estate to take over the current proceedings or commence new proceedings raising the same claims.

Mr Arnold says that, in any event, this argument should fail for a number of reasons. First, the implied term is designed to give additional teeth to and to act as an extension of Clause 7 of the Settlement Agreement. He says that, to the extent that that Clause is designed to force Aston to tell untruths about the relationship between individual members of the Wailers, Bob Marley and the recording companies, it is contrary to public policy. No court would imply a term to secure or build upon such an objective. Second, he argues that the defendants’ case on this point is misconceived. Aston Barrett suing on his own behalf is to be regarded as a different person to Aston Barrett acting as an administrator of Carlton’s estate. In the latter capacity, Aston can only have regard to the interests of the estate, not his own interests. The administrator of Carlton’s estate was not a party to the Settlement Agreement and no term can be implied which would bind him. It follows that no implied term can bind Aston Barrett as administrator.

Third, Mr Arnold argues that no term would be implied in any event. As the parties agree, the negotiations which led to the Settlement Agreement extended over many months. The latter was drafted by lawyers acting on behalf of the Island camp. The court should avoid the temptation to improve upon the parties’ drafting under the guise of filling obvious lacunae. Here the parties turned their minds to the issue of how to deal with possible proceedings which might be brought on behalf of Carlton’s estate. They came up with the formula in Clause 7. The implied term advanced on behalf of the defendant does not fill an obvious lacunae nor does it even meet the alleged problem created by Clause 7. Had the parties wished to prohibit any of the Wailers from acting as Carlton’s representative, the agreement could and should have said so. That it did not is no surprise. To have prevented the Wailers from acting on behalf of Carlton’s estate would not have avoided the possibility of the estate making a claim. Anyone else could have brought proceedings as administrator. The parties, therefore, appear to have taken an indirect route designed to disadvantage Carlton’s estate were such proceedings to be commenced. Instead of preventing any of the Wailers from acting as administrator or representative for the estate, it was agreed that the Wailers would furnish help to the Island camp in any such litigation.

I accept Mr Arnold’s arguments and, in particular, the latter two. At the least, it is not fanciful to suggest that these arguments will defeat the defendant’s implied term argument. Furthermore, even were the implied term argument stronger, it would not inevitably lead to the claims brought on behalf of Carlton’s estate being struck out. Granting an injunction against Aston Barrett would not extinguish the claim but merely require it to be brought by a different administrator. It follows that the defendants fail to make out their disqualification objections in respect of the Carlton Barrett claims on this application.

The result is that Aston Barrett remains in this action in his capacity as administrator of his late brother’s estate. Since that is so, and subject to the substantive objections considered below, the action will continue. I can see little benefit in the circumstances of considering further the many interlocking arguments on the issue of whether Aston Barrett should be entitled to raise essentially identical arguments for his own benefit. No saving in court time and no significant saving in costs would be achieved by excluding him in his personal capacity from this action. This is a case where it would be appropriate to exercise the discretion under the rules to allow Aston Barrett’s own claims to go to trial. I should only add that since Carlton was not a party to the Jamaican or New York Actions, no question of issue estoppel can be argued to arise as a result of the with prejudice dismissal of those proceedings. That this is so explains the inclusion of Clause 7 into the agreement designed to settle those proceedings.

The arguments relating to the Substantive Objections took up the better part of the hearing before me. Miss Jones was right in her skeleton argument to say that the “facts and issues are complicated”. Some of the major uncontested facts have been set out at the beginning of this judgment. However there is much more in dispute. The starting point of the Barretts’ claim, or part of it, is the 1974 Recording Agreement. The claimant says that it created contractual relationships directly between him and his brother on one side and UIL on the other. As noted at paragraph 32 above, notwithstanding an assertion to the contrary made by lawyers acting on behalf of Aston Barrett in March 2001, the 1974 Agreement was not signed by either Barrett. However it is alleged that Bob Marley signed on their behalf. This is pleaded in the alternative to his signing on behalf of the partnership. Mr Arnold says that, in addition to his own client’s assertion to that effect, there are number of other strong indications to support this claim. He points to the fact that the names of Aston and Carlton Barrett appear at the top of the agreement and that the latter appears to be directed to them. He relies on the inability of anyone on the defendants’ side to explain the inclusion of the Barretts’ name on the 1974 Recording Agreement if it was not because they were parties. He relies on an affidavit of Chris Blackwell, one time head of Island Records, which includes the following:

Similarly Mr Bingham, the ancillary administrator said:

In addition a letter agreement increasing royalty payments under the 1974 Recording Agreement was addressed to “Dear Sirs”.

As against this, Miss Jones produces a list of contra-indications. She says that there is overwhelming evidence that the Barretts were never parties to the agreement. She points out that the contract was known to the Barretts at the latest by 1990 yet they never asserted they were parties to it until Aston did so in these proceedings. Furthermore in earlier proceedings it was asserted on his behalf that the Barretts’ names had only been put on the top of the 1974 Agreement “for the purpose of re-establishing the partnership”. She relies upon the amended Statement of Claim in the Jamaican Action in which Aston Barrett (but not his brother) pleaded:

All of this indicates that Aston Barrett’s claim was only through Bob Marley as a member of the partnership. Further Miss Jones points to an affidavit of Mr Donald Kerr sworn on behalf of Aston Barrett in connection with an application made in the Jamaican proceedings in which it was asserted that the plaintiffs, including Aston Barrett, but not Carlton, were entitled to 50% of the profits made by Bob Marley’s estate. She says that this plea is consistent with Aston Barrett being a partner and being entitled to a share in the partnership profits. It is inconsistent with Aston Barrett having a direct contractual relationship with UIL.

Reliance is also placed on the fact that the contract was negotiated between Mr Marley’s lawyers and lawyers acting for UIL. She draws attention to the difference between this recording agreement and the 1972 agreement between UIL on the one hand and Bob Marley, Neville Livingston and Peter Mackintosh on the other. The latter three performed together as the Wailing Wailers. Miss Jones points out that all three musicians signed that recording agreement and that the notice of termination of it was sent on 5 August 1975 to all three of them. In contrast, neither of the Barretts signed the 1974 Recording Agreement and notice of termination of it was sent to Bob Marley alone. She says that all these factors, taken together, point conclusively to the latter agreement being between UIL and Bob Marley only. The Barretts were not party to it. Payments made under it were made to Bob Marley. If the Barretts had any complaint, it was as to the distribution of the partnership income received by Bob Marley. That may have given them a cause of action against Bob Marley or his estate. It does not give them a cause of action against UIL. The Barretts’ claims under this Agreement are of no substance and should be dismissed at this stage.

Very similar arguments are advanced in relation to the issue of whether or not the 1975 Recording Agreement created contractual relations between the Barretts and UMG save that Mr Arnold accepts that his client’s position is weaker because, in this case, the contract signed by Bob Marley does not bear the Barretts’ names. Mr Arnold says that it is not possible to resolve this issue at this stage. Aston Barrett’s assertion that he was a party to the 1975 Recording Agreement should be tested at a trial. No doubt the court’s view as to the accuracy of Aston Barrett’s assertions will be influenced by its view of the merits of the arguments relating to the 1974 Recording Agreement. Further he says that, even if the Barretts did not sign and were not parties to the 1975 Recording Agreement and the letter of termination of the 1974 Recording Agreement was not sent to them, the result is that the latter Agreement was not terminated as far as the Barretts are concerned. Thus the relationship between UIL and the Barretts continues to be defined by the 1974 Recording Agreement.

Quite separate from the Barretts’ contractual claims are those arising under copyright, performers’ rights legislation and in accordance with the principles of unjust enrichment. As far as copyright is concerned, the starting point is the concession that one or other or both of the Barretts were the authors of the six musical compositions in dispute. There is no dispute that Bob Marley and the Wailers albums includes complete reproductions of these copyright works. Recent manufacture and sale of such albums will be an infringement unless done with the licence of all of the relevant copyright owners. Furthermore Miss Jones does not suggest that either of the Recording Agreements purport to control or licence the copyright in any musical composition written by either of the Barretts. Even if, as the defendants allege, the Final Marley Band was a partnership and the latter Agreements were signed by Mr Marley as managing partner, there is no suggestion that the copyright in the six musical works was a partnership asset. Prima facie the author of a musical composition is the owner of the copyright in it. Where there is more than one author it is likely that they will be joint owners. Mr Arnold says that this means that the defendants have to prove that, in respect of records made and sold in the limitation period, they had a relevant licence to reproduce each of the compositions from the relevant copyright owners. He points out that his client and Carlton Barrett’s estate have received nothing for the exploitation of their copyright works for years.

Miss Jones responds to this in a number of ways. First she argues that the copyrights in the six compositions “must have” belonged to Tuff Gong Music, not the Barretts. That company purported to assign them to Bob Marley Music Ltd in 1981. The latter company was subsequently sold to Island Logic Inc. The argument in relation to Tuff Gong’s ownership is as follows. At an early date, the copyrights in the six compositions were registered in the United States as owned by Tuff Gong Music as employer for hire of the composers, Aston or Carlton Barrett. This must mean that Tuff Gong Music was the first owner of the copyrights. Second she relies on the terms of the 1994 Settlement Agreement as showing that these claims have now been disposed of by compromise. Third she argues that the Barretts are estopped from maintaining any copyright claims against the defendant because, in essence, they have always behaved as if they were not the copyright owners or were happy for their works to be recorded and for the recordings to be sold. She relies on a number of actions by the Barretts as indicating their acceptance that they had no remaining interest in the copyrights. For example, she relies on the fact that the Barretts performed the six compositions with the Final Marley Band and took part in tours to promote the recordings.

The arguments relating to ownership of copyright extend over a wide area. Mr Arnold points out that copyright is a national right. Registration in the United States can only apply to American copyright. It throws little or no light on the ownership of the quite separate United Kingdom copyright. Furthermore, the fact that the registration refers to Tuff Gong as employer for hire takes the defendants nowhere. It is not proof that the Barretts were “employed for hire” and Aston Barrett denies that he was so employed. Furthermore, the compositions were created when the Copyright Act 1956 was in force. Under that Act, United Kingdom copyright vests in the author of a musical work (s. 4(1)) unless it is made in the course of the author’s employment by another person under a contract of service or apprenticeship (s. 4(4)). There is nothing before me which shows that the American concept of “employment for hire” is the same as our concept of employment under a contract of service.

As far as the 1994 Settlement Agreement is concerned, it is difficult to see how Aston Barrett could have compromised his brother’s copyright claims in those compositions in which Carlton, but not Aston was an author. Further, even in respect of the composition entitled “Who The Cap Fit”, where both Barretts were authors, each had its own rights in the copyright. Aston could compromise his claims under his own rights in the composition, but not his brother’s. Mr Arnold says that, on its proper construction, the 1994 Settlement Agreement did not prevent Aston Barrett maintaining his entitlement to exploit his statutory rights under the Copyright, Designs and Patents Act, 1988.

As far as the performers’ rights claims are concerned, the arguments are very similar to those raised in relation to copyright save in one respect. As I understand it, Mr Arnold accepts that if his client’s claims under the 1974 and 1975 Recording Agreements succeed, then his performers’ rights claims must fail. Entering into those Agreements must have carried with them consent from the Barretts to the recording companies’ exploitation of their performances in recordings made under those agreements, even if that involved reproduction of their own copyright works. On the other hand, if the contract claims fail, the performers rights claims come to life.

The unjust enrichment claim does not appear to me to add much to the claimant’s armoury. Mr Arnold dealt with this very briefly at the end of his submissions. He says that it is only advanced as an answer to the defendants’ assertion that the Barretts consented to the use of their performances and copyrights. He says that it is clear that throughout the Barretts expected to be paid for any such consents. They have not been. The defendants have exploited or received the benefit from exploitation of the Barretts’ rights. This, it is said, is unjust enrichment. Although there is some dispute as to the scope of the law of unjust enrichment, I am far from persuaded that it extends as far as Mr Arnold would push it. Furthermore his client’s case is dependent upon the Barretts not having been remunerated for the use of their performances and copyrights. This begs the question. If, as Miss Jones argues, the question of remuneration was dealt with in the 1974 and 1975 Recording Agreements, then the Barretts were or should have been paid. The contract was with the partnership and, in accordance with those Agreements, the partnership has been paid substantial sums over the years. To the extent that the Barretts complain that they did not receive their fair share, their complaint must be against those who have distributed partnership income and assets. The defendants have not been enriched at all.

As far as the estoppel argument is concerned, Mr Arnold points out that Aston has been protesting his entitlement to fair remuneration for many years, save for the time when he was being paid by Mrs Marley under the December 1981 Agreement which everyone now agrees was a nullity. He challenges the adverse inferences drawn by Miss Jones from those actions by the Barretts upon which she relies. He says that, at the end of the day, the question to be asked is whether or not, in all the circumstances, it would be unconscionable for Aston Barrett to proceed with this action. He says that the answer to that question involves a detailed consideration of a convoluted and partly undocumented history going back some 20 years and, for that reason, it is by no means fanciful to suggest that his client will defeat the defendants’ case on this point.

I have tried to set out, in as brief a form as possible, the areas of dispute between the parties. That summary is somewhat superficial. The arguments before me extended over a much wider area.

It appears to me that the argument that the Barretts were parties in their own right to the 1975 Recording Agreement is fanciful. The claimant’s pleading (see paragraph 35(8) above) that Bob Marley entered into it “on behalf of the Partnership and in particular Bob Marley, the Claimant and Carlton Barrett” is difficult to understand. It contains inconsistent allegations. Either Bob Marley signed on behalf of the partnership, or as an agent on behalf of the members of the band. Everything points to the first of these being accurate. If so, neither of the Barretts are parties to the Agreement. If this point had stood by itself, I would have been minded to strike it out or to have entered judgment for the defendants in relation to that Agreement.

However the claim to personal contractual rights under the 1975 Recording Agreement does not stand by itself. The claimant’s failure on that issue does not dispose of the claim but merely diverts it down one of its alternative routes. It is but one facet of a much larger dispute.

In Three Rivers DC v Bank of England (No 3) (supra) Lord Hope of Craighead said:

When, in her skeleton argument, Miss Jones said that the facts and issues in this case are complicated, she was right to do so. That view was expressed before she had heard the formidable, multi-faceted response from Mr Arnold. The four days this hearing occupied were filled with detailed arguments on the facts and the law. I have a strong suspicion that on many, if not all, issues the defendants are likely to prevail at the trial. This is bolstered by the fact that Mr Barrett admits that his case now is, in material respects, different to cases advanced by him in the past. But, to obtain relief at this stage it is necessary for the defendants to show that the claims of both of the Barretts are fanciful. That must be clear without the need for a mini-trial. It may be said that this plays into the hands of litigants who can engineer complexity. That may be so. At the end of the day such tactics will result in heavy awards of costs and, where appropriate, heavy orders for security. But if, as here, the issues appear to be complex and difficult to unravel even after a prolonged hearing, then the case is not suitable for summary determination. I have come to the conclusion that the issues raised here are far too complex and numerous. It would not be safe to strike out the claims at this stage. In the circumstances, the defendants’ applications for summary judgment and to strike out fail.