Rosenzweig v NMC Recordings Ltd

NMC Recordings Limited (“the Charity”) was incorporated on the 14 October 1988. Its objects are:-

The means by which the Charity achieves these objects include the recording and promoting of otherwise unrecorded contemporary music. Indeed, the initials “NMC” originally stood for “New Music Cassettes”, though they no longer bear that meaning.

The Charity is in some respects the successor to the Society for the Promotion of New Music (“SPNM”). Some of those who formerly participated in the oversight of SPNM came to perform a similar role for the Charity. One such person was Dr Collin Matthews (“Dr Matthews”). He is now the Executive Producer of the Charity, and he used to be a “reader” for SPNM. Promotion by SPNM was one gateway for a UK based composer to embark upon a composition career. Several hundred scores would be submitted each year to the SPNM for assessment by the SPNM Reading Panel, whose function it was to select pieces for performance. The task of the Reading Panel was to select about 50 pieces for performance: and this was achieved by panels of three “readers” assessing each score. Dr Matthews was one of about 120 “readers”.

Mr Rosenzweig is a UK-based composer of contemporary music. His works were never performed as a result of a selection by SPNM, although they were selected by the Reading Panel for performance on six or seven separate occasions: and the Charity has never promoted his works, and never issued a compilation CD of his works (although Mr Rosenzweig has offered every assistance and encouragement to enable the Charity to do so). Mr Rosenzweig says that by any objective standard (“bench-marking”) his compositions should have been promoted by the Charity, and that the failure of the Charity to record or encourage the performance of his compositions is attributable to the continuation of a decade’s long campaign of personal hostility directed at Mr Rosenzweig by Dr Matthews.

On its website the Charity says that it is seeking to establish “an up to date archive for the Nation” and that “recording is the crucial part of the new music continuum that ensures legacy value”. It says:-

“NMC Recordings present the highest of artistic standards and the work of the very best of both emerging and established composers in Britain. We are dedicated to promoting and preserving new music and to building a permanent legacy to inspire generations to come”.

Although the Charity has recently (in response to pressure from Mr Rozensweig’s friends) put Mr Rozensweig’s name on its “Musical Map” of 20^th century composers it has not itself promoted or preserved any of his music.

Mr Rosenzweig has issued proceedings against the Charity. On two occasions (on 7 September 2012 and most recently on the 13 August 2013) the Charity Commission has refused to authorise Charity proceedings, essentially on the ground that the Trustees of the Charity appear to have acted reasonably when they did not select Mr Rosenzweig’s works for promotion and to have acted in good faith. The Commission noted that Dr Matthews was one of seven panellists who considered Mr Rosenzweig’s work in May 2010, and one of nine panellists who considered Mr Rosenzweig’s works in October 2010, but it considered that there was no evidence to suggest that on either occasion Dr Matthews overruled or dominated the review panel.

What is before me is Mr Rosenzweig’s application for permission to bring “charity proceedings” against the Charity under section 115(5) of the Charities Act 2011.

It is common ground that the two sets of proceedings which Mr Rosenzweig has already commenced in the Queens Bench Division are “charity proceedings”, that is to say, proceedings brought under the Court’s jurisdiction with respect to charities, or under the Court’s jurisdiction with respect to trusts but in relation to the administration of a trust for charitable purposes.

But by virtue of section 115(1) of the 2011 Act “charity proceedings” (if not taken by the charity or any of the charity trustees) can only be taken by “any person interested in the charity”. If the Charity Commission refuses “a person interested in the charity” authority to take “charity proceedings” then such proceedings can only be entertained or proceeded with:-

“..if… leave to take the proceedings was obtained from one of the judges of the High Court attached to the Chancery Division”.

Although I refused to treat the hearing before me as an opportunity for a dress rehearsal of any final hearing, it is necessary to give some fuller account of the facts as they appear (though recognising that this is not the occasion for making findings of fact on contested issues, and that, save for matters that are agreed or incontrovertible, my views must be provisional).

I start with a description of the key features of the Charity. It cannot be denied that the Charity has only limited financial resources. Over the last five years its general funds have not exceeded £200,000, and its annual expenditure (insofar as not covered by income from sales and licensing) has been underwritten by a grant from the Holst Foundation. I accept that the financial future of the Charity is somewhat uncertain, given that the copyright on Holst’s work has expired, so that the royalty income derived by the Holst Foundation from those works is diminishing, jeopardising its continued support of the Charity.

The constitution of the Charity is not controversial. There are eight trustees who oversee the day to day operations of the small executive team. Dr Matthews (as Executive Producer) is a member of that team, along with four others. There is an independent Artistic Panel which provides expert strategic guidance to the trustees from an artistic perspective. Its remit includes the review of work submitted by composers.

The evidence about the selection process of the Charity has not been challenged. The Charity operates within the context of a very limited budget and a realistic release schedule of 10-12 CDs per year. The Charity receives about 50 proposals per year and selects two or three. But the bulk of the recording schedule comes from the Charity’s own projects: for example, to address a perceived gap in the catalogue (such as contemporary song), or to promote debut discs, or to mark an anniversary. The overriding criterion is quality, but in addition the Charity considers likely audience and financial viability. These facts are assessed using external experts. These form an Artistic Panel whose members are invited (on a rotating basis) to constitute a selection group together with the Charity’s Executive Team. A board member attends the meetings as an observer. Decisions are reached by consensus (or on occasion by majority vote).

At the end of March 2010 Mr Jon Baldachin wrote to ask the Artistic Panel to consider the work of Mr Rosenzweig and provided a link to Mr Rosenzweig’s website where some complete and sample scores could be found together with some audio clips. It is said by the Charity (and I see no grounds to doubt the truth of the statement) that other applicants submitted full scores, recordings and narratives (explaining their project or their precise funding needs). I will deal with the treatment of this approach after dealing with Mr Rosenzweig’s strengths.

It is appropriate to begin with what Mr Rosenzweig considers to be his two principal recognitions: he puts them in the forefront of his correspondence and of his evidence. First, in 1989 he was the recipient of the DAAD Berliner Kunstlerprogramm Fellowship. This is a year’s funded residency (there are about 20 each year) to participate in cultural events in the city. Other recipients have been Stravinsky, Elliot Carter, Penderecki, Ligeti. Gorecki and Berio. Second, Mr Rosenzweig is the Principal Guest Conductor of the Vidin State Philharmonic (Bulgaria’s second orchestra). This appointment speaks to his standing as a conductor though not as a composer. Although these may be regarded as the high points of his career, Mr Rosenzweig points to others and to the obstacles which have been placed in the way of his career development.

As to his other bench marking achievements, they include the following:-

As to the obstacles which have been placed in his career path and have prevented greater recognition, Mr Rosenzweig refers in his evidence to “10 years of proactive career sabotage”. He refers to the printing of some of the woodwind parts for one of his works on faded parts paper in 1985 as being an act of sabotage. He refers to what he calls “an unbalanced rehearsal schedule” for a concert in November 1985 which prevented an adequate performance of his work. He refers to an occasion in 1984 when a performance of his “Elegy” was pulled and replaced with an Octet written by Dr Matthews. He explains that his time as a guest of the DAAD Berliner Kuntstlerprogramm guest was less successful than it might have been because the concert program was “scuppered by creative mismanagement”. He refers to an occasion in 1986 where an arrangement he had written for Divertimenti was not performed after he had delivered it. He mentions an occasion in 1988 when a String Quartet which had been commissioned by the BBC was not played when delivered, was not recorded until 1995 and was not broadcast until 2009. He refers to an occasion in 1993 when Classic FM recorded a programme about himself and his music, but did not broadcast it. He refers to a visit in 1996 to a Choral Society in Enfield, whose secretary told him (over tea and scones) that he would never get a job with a UK choral society because of his name. All this he puts down to “the magic wrought by abuse of power”, in particular by Dr Matthews but also by the Controller of Radio 3, Mr Roger Wright.

It will be noted that both the prizes to which I have referred and the obstacles which Mr Rosenzweig says were placed in the path of his career development all lie in the fairly deep past. But Mr Rosenzweig says that the trustees of the Charity ought to have been aware of these matters when they considered the submission made on his behalf in 2010.

His work was first considered on 19 May 2010. His proposal was one of six turned down by a panel with three external experts. It was reconsidered at a meeting on 13 October 2010, when it was one of nine proposals declined (including one from the BBC Scottish Symphony Orchestra). On each of these occasions one proposal was accepted. Mr Rosenzweig says that neither the reference panel nor the trustees can have considered his submission fairly. He argues that if all they heard were the audio clips on the website it would have been impossible for them to form an opinion, since these were only extracts and were not accompanied by a score. They would have heard part of his Symphony in One Movement (1980), part of his Elegy (1985) part of his Second String Quartet (1989), an extract from his Sinfonietta No 1 (1986) and part from his Sinfoniette No 2 (1986), part of an “Octet” (1987) and part of an arrangement of “Shenandoah” for a Romanian orchestra (2002). None of these works was recent. Since the trustees did not decide that this material should be recorded and archived Mr Rosenzweig says that it cannot have been fairly considered, because there is no one with his credentials (and who is not with a major record label) who is not promoted by the Charity.

No Court will ever say that Mr Rozensweig’s work is so good that it must be recorded. That is not a judgment a Court can make. So Mr Rozensweig will never achieve one object of his proceedings which is that the Charity must by Order publish and promote his entire output on CD (with continuous exposure on the Charity’s website) and must champion him as an unjustly neglected composer. But that is not the only relief sought in the charity proceedings: and these I must now address.

The first question is whether Mr Rosenzweig is “a person interested in the Charity”.

The expression “person interested in the charity” is not defined in the Charities Act 2011. Nor is it defined in any decided case: but there are observations in the cases which provide useful pointers.

In Haslemere Estates Ltd v Baker [1982] 1WLR 1109 at p1122 Sir Robert Megarry said:-

“Those who have some good reason for seeking to enforce the trusts of a charity or secure its due administration may readily be accepted as having an interest in the charity, whereas those who merely have some claim adverse to the charity, and seek to improve their position at the expense of the charity will not. The phrase, I think, is contemplating those who are on the charity’s side of the fence, as it were, however much they may disagree with what is being done or not being done by or on behalf of the charity”.

In Bradshaw v University College of Wales [1988] 1WLR 190 the executors of the creator of a charitable trust sought to require the trustees to give a full account of the administration of the charitable trust. Hoffmann J held that the executors had no interest in the charity. They could not in any sense be regarded as beneficiaries under any of the charitable purposes, nor was there any possibility of the trust property reverting to the settlor’s estate. They therefore had no more interest in the charity than any other member of the public. He observed (at p193H):-

“Not everyone who volunteers himself as interested in the proper administration of the trust will be a person “interested” within the meaning of… the Act”.

In Re Hampton Fuel Allotment Charity [1989] 1 Ch 484 the Court of Appeal recognised that there were “insuperable difficulties in attempting a comprehensive definition” of the expression. Nicholls LJ held at p493C:-

“We accept that there may be cases where an actual or potential beneficiary under a nationwide charity will qualify as a person interested in that charity. But we do not accept that an actual or potential beneficiary will always qualify. It must depend on all the circumstances.”

Amongst those circumstances the Court noted “that the person needs to have some good reason for bringing the matter before the court”, and that, given the role of the Attorney General to intervene and inform the court if trustees of a charity fall short of their duty:-

“To qualify as a plaintiff in his own right a person generally needs to have an interest materially greater than or different from that possessed by ordinary members of the public…”.

Mrs Jane Davies Evans of Counsel (acting pro bono for the Charity) submitted that in the light of this guidance Mr Rosenzweig was not “a person interested” in the Charity. It was not sufficient that the objects of the charity included the promotion of British composers and that Mr Rosenzweig was a living composer. There are many hundreds of composers of contemporary music within the United Kingdom and they cannot all be “persons interested” in the Charity. Mr Rosenzweig’s general answer to this submission is that he is a living composer whose work and livelihood is directly affected by the work of the Charity and whose interest in securing its due administration is materially greater than and different from that of ordinary members of the public. This general answer does not seem to me to be sufficient. The many hundreds of composers of contemporary music within the United Kingdom simply constitute a section of the public.

But Mr Rosenzweig has a more specific and more narrowly confined answer to the Charities Challenge. He submits that he is “a person interested in the charity” because (a) he has applied to the Charity for the inclusion of his work amongst the dozen or so CD’s that the Charity produces each year; (b) by what he calls “gold standard” bench marking he is a composer whose work ought to be considered; (c) the Charity has recognised his standing by including him on its “musical map”. In my judgment this combination is sufficient to make him “a person interested in the charity” for the purpose of being able to apply for authority to commence and to prosecute charity proceedings (accepting, as I do for the purposes of this application, that there is some value (albeit not compelling) in Mr Rosenzweig’s claimed “bench marks”). I respectfully agree with the observation of Nicholls LJ in Re Hampton Charity (at p494A) that:-

“… a protective filter exists in respect of charity proceedings, in that persons competent to bring charity proceedings… generally require approval from the Charity Commissioners or the Court… so that concern to avoid charities being vexed with frivolous and ill founded claims does not dictate that “person interested” must be given a narrow meaning”.

I turn to the question of how that filter should be applied in the instant case. I unhesitatingly conclude that authority should not be given to Mr Rosenzweig to prosecute the charity proceedings which he has commenced. In essence, these do not have as their focus any public benefit resulting from the intervention of the court; their focus is upon the personal benefit to be derived by Mr Rosenzweig from the intervention of the court, through intended proof of the personal animosity of an employee of the Charity grounded upon events some of which predate the establishment of the Charity, and some of which have no connection with the Charity.

A concise and coherent summary of Mr Rosenzweig’s case may be found in his commentary upon the Charity Commission’s refusal of permission to bring charity proceedings dated 13 August 2013. It is in these terms:-

“The fact that Mr Matthews has a strong personal antipathy towards me was well known to the trustees. It is clearly unreasonable for the trustees to have relied upon the recommendation of the artistic panel under these circumstances. Of the 7 members of the panel responsible for the initial unanimous rejection of my work, 4 are named, and of these 4, 3 are NMC employees whose employment would have to have been vetted by NMC’s Chief Producer since its inception, its founder Mr Matthews. It is simply not credible to suggest that, given Mr Matthews high standing within NMC and his role in the establishment of the charity itself, that he could not have considerable influence, and possibly complete dominance, over the artistic panel. Nor is it credible to suggest that such a strong antipathy on his part could have had no part in the decisions taken. It is manifestly unreasonable, knowing all of this, for the trustees to have allowed the artistic panel to have considered my work with no steps taken to ensure that Mr Matthews was not involved. The failure by the charity and its trustees to take any of these factors into account and to accept the recommendation of the panel under these circumstances unquestioned is not within the range of reasonable decisions open to trustees and irrevocably taints the decisions taken by NMC in relation to my work”.

That essential complaint is clothed in legal language in Mr Rosenzweig’s Particulars of Claim.

First, Mr Rosenzweig claims that, in breach of trust, the trustees decided in May 2010 and October 2010 against recording his music not because they had (in their view) more meritorious projects to undertake, but because of the personal animosity of Dr Matthews. He relies on three emails sent by one of the Charity’s Patrons, Lady Panufnik. In the first she expresses some sympathy with Mr Rosenzweig’s situation, but says she has not discussed his problems with Dr Matthews “because I have been told by other sources that Mr Rosenzweig has used a tactless and unfriendly language about Mr Matthews and his colleagues, and I find this very distressing”. In the second she said that she would do her best “to persuade the idealistic and generous Colin Matthews to forget what has passed”. In the third she said:-

“There is no question that Michael offended the Director of NMC, who is a gentle and good man, an honest and talented composer who gives a lot of his precious time to helping young composers… if [Mr Rosenzweig] feels he cannot in the future deal with him without reproaching him, then it is better that I do not approach NMC. Please understand that [Mr Rosenzweig’s] indignation about the past is destructive even if it feels justified. Gentle people, in fact most creative people, are put off by anger or bitterness, usually because they have also experienced disappointments, but have managed to control their own negative emotions. I know [Mr Rosenzweig] feels his distress and anger genuinely. He is not unique in having difficulties with the outside world”.

These perceptive comments do not begin to sustain an argument that DR Matthews displays an irrational animosity towards Mr Rozensweig which displaces the independent judgment of the Artistic Panel and the Board so that the Charity’s trustees have acted in breach of trust.

Second, Mr Rosenzweig alleges that:-

“The historical record shows [his] exclusion to be a continuous behaviour pattern of 39 years”.

That is a reference to the failure of SPNM to perform any of Mr Rosenzweig’s works between 1979 and 1988. These past slights have nothing to do with the Charity.

Third, Mr Rosenzweig alleges that the trustees of the Charity “have a duty to act with reasonable care in their dealings” with composers. He alleges that the trustees acted in breach of that duty of care and that:-

“…the resultant damage to the Claimant – total, lifelong and on going exclusion in the country he is a citizen of and resides in from the profession that he has international recognition of the highest order – is not merely foreseeable, but a calculated result”.

For that he claims damages of £1.5m (as a conservative estimate of a career lifetimes’ loss of earnings), increased to £2.4m as exemplary and aggravated damages. He also seeks a public apology by the Charity and its officers and an acknowledgement of 24 years’ exclusion of the Claimant “indicating clearly recognition of wrongdoing”. In my judgment this simply not a legally sustainable claim.

I hold:-

This is the very sort of case where even an applicant who can demonstrate that he is a “person interested” in the charity ought not (because of the application of the protective filter) to be permitted to cause the charity to fritter away money subject to charitable trusts in litigation. I therefore decline to give Mr Rosenzweig authority to prosecute the proceedings which he has issued. On the material at present available it can be seen that they have no real prospect of success, cannot in any circumstances achieve that which Mr Rosenzweig seeks, and will in all likelihood lead to the destruction of the Charity.

I would conclude by observing that I well understand Mr Rosenzweig’s disappointment that his works have not achieved the level of recognition which he believes they deserve. But in deciding not to include his works in their schedule of recordings the Charity trustees were not necessarily condemning his work as lacking merit: they had a limited budget and had to decide between competing claims. In the same way, in refusing authority to continue the proceedings I am expressing no view about the merits or de-merits of Mr Rosenzweig’s works. The Court does not assess artistic merit. It does not even decide whether the trustees were right in refusing to promote Mr Rosenzweig’s work. The ultimate question for the court could only be whether the decision of the trustees of the Charity was lawful and valid. It can now be seen that the claim bought by Mr Rosenzweig has no real prospect of successfully establishing that the conduct of the Charity trustees was unlawful and their decision invalid: and whilst the attempt to do so may benefit Mr Rosenzweig it is not in the interest of the Charity as a whole.

I invited submissions on costs on alternative bases at the conclusion of the hearing. In the light of the arguments then advanced I will (applying CPR 44.2(2)(a) and having considered the matters to which my attention is directed by CPR 44.2(4)) order that Mr Rozensweig must pay the costs of the application. Freshfields Bruckhaus Derringer LLP have acted pro bono: and I have been grateful for the considerable help I have received from Ms Davies-Evans’ thorough and balanced submissions. Under CPR 44.3C I must therefore assess a sum (not exceeding the costs to which the Charity would have been entitled if represented by paid solicitors and counsel) which is to be paid to The Access to Justice Fund. The Schedule of Costs shows total time costs of £29,925. Because Counsel was “in-house” much work was done by Counsel, which would have been done by a solicitor had external Counsel been briefed; and external Counsel would not have been retained at a fairly high hourly rate, but upon a brief fee. On a summary assessment I would therefore reduce the time costs. I would not in this instance order Mr Rozensweig to pay the whole of the summarily assessed sum. I consider that Mr Rozensweig must pay the Access to Justice Fund the sum of £15,000. That sum must be paid by 17 January 2014.