Miller v Gardiner & Anor

I have before me applications by the defendants to claims brought by Mr Lawrence Miller for (a) the proceedings to be struck out and/or summary judgment to be given in their favour and (b) a civil restraint order to be made against Mr Miller. The defendants comprise Mr Patrick Gardiner, a solicitor who was formerly a partner in Eversheds LLP; Mr Richard Little, a current partner in Eversheds who dealt with claims that Mr Miller brought against the firm and others (including Mr Gardiner) last year; Ms Janie Hendrix, one of the defendants to those proceedings; and Miss Claire Blanchard QC, who appeared for the defendants to those claims.

On 27 July 1965, Jimi Hendrix, the guitarist and singer, entered into an “Exclusive Recording Artist Contract” with Sue Records Inc. The agreement (“the Sue Records Agreement”) provided for the grant by Jimi Hendrix of “exclusive personal services in connection with the production of phonograph records”. Under the agreement, Jimi Hendrix was, among other things, to record “a minimum of the equivalent of Eight (8) 7 inch 45 rpm (single faced) commercially and technically satisfactory record sides”.

Soon afterwards, on 15 October 1965, Jimi Hendrix entered into a recording contract with PPX Enterprises Inc (“PPX”), of which a Mr Ed Chalpin was the moving force. Litigation about this agreement subsequently arose between PPX and, among others, Jimi Hendrix.

Sue Records Inc appears to have assigned its rights under the Sue Records Agreement to a Mr Michael Jeffery, who, in turn, seems to have assigned on to Yameta Company Limited (“Yameta”), a company incorporated in the Bahamas. On 1 December 1966, Jimi Hendrix entered into a management agreement with Yameta (“the Yameta Management Agreement”).

In January 1969, Jimi Hendrix performed live in Stockholm.

On 18 September 1970, Jimi Hendrix died intestate. In February of the following year, letters of administration were granted by the Surrogate’s Court of New York County to a Mr Kenneth D. Hagood, a New York lawyer. On 23 January 1973, a Mr Alan Leighton-Davis, a partner in Goodman Derrick & Co, was granted letters of administration in this country as Mr Hagood’s “lawful attorney”.

Numerous problems were evidently encountered with the administration of Jimi Hendrix’s estate. Among other things, matters were complicated by paternity claims. Mr James Allen (“Al”) Hendrix was, however, declared by the Surrogate’s Court to be Jimi Hendrix’s sole heir as his father.

The litigation with PPX was settled by an agreement of 7 March 1973 which was embodied in a Court order (“the 1973 Agreement”).

On 30 March 1977, Mr Hagood executed an instrument of distribution, transfer and set over. This served to distribute the assets comprised in Jimi Hendrix’s estate to Mr Al Hendrix. The document recorded:

“This distribution is made with the specific intent and purpose of closing The Estate of JAMES M. HENDRIX and distributing to Mr. JAMES A. HENDRIX all rights and responsibilities which formerly were of The Estate and the Administrator of The Estate.”

Supposing them to be genuine, documents obtained by Mr Miller suggest that by this stage Yameta had (in 1975) assigned the benefit of outstanding contracts with Jimi Hendrix to Mr John A Hillman, a director of Yameta and perhaps its beneficial owner. On the face of it, Yameta’s board had also resolved that the company should be removed from the Register of Companies.

There is obvious inconsistency between these documents and an assignment of copyrights that Yameta appears to have entered into on 5 November 1979 in favour of the estate of Mr Jeffery, who had died in 1973. The assignment was stated to relate to the copyrights in listed works by Jimi Hendrix.

In the course of the 1980s, companies associated with Mr Al Hendrix seem to have acquired such rights as Mr Jeffery’s estate may have had in Jimi Hendrix’s work. In 1995, Mr Hendrix and companies associated with him transferred their rights in Jimi Hendrix’s work to Experience Hendrix LLC (“Experience Hendrix”).

In 1999, Experience Hendrix brought proceedings against PPX and Mr Chalpin for breach of the 1973 Agreement and infringing Experience Hendrix’s rights. It came to be thought, however, that the right to sue on the 1973 Agreement might still be vested in Mr Leighton-Davis. According to the defendants, a deed of assignment dated 13 November 2000 (“the 2000 Deed of Assignment”) was entered into to remedy the problem, with Experience Hendrix, Mr Hagood and Mr Leighton-Davis amongst the parties to it. Thereafter, a second set of proceedings was brought against PPX and Mr Chalpin. Eversheds acted for Experience Hendrix in both actions.

The matter came before Buckley J in 2002. He concluded that PPX had breached the 1973 Agreement. In the course of his judgment, he said (at paragraph 44):

“Proceedings were commenced in April 1999 but foundered because of lack of title. However, the matter was rectified and the present proceedings were then commenced in June 2001.”

On appeal, Experience Hendrix was awarded additional redress (see [2003] EWCA Civ 323). Mance LJ stated in his judgment (at paragraph 8):

“By deed dated 13^th November 2000 [i.e. the 2000 Deed of Assignment] the English administrator of Jimi Hendrix’s estate assigned the benefit of the settlement agreed on 7^th March 1973 to the present appellant, a company effectively owned by Jimi Hendrix’s father, who is the sole beneficiary of Jimi Hendrix’s estate.”

On 21 October 2003, Mr Hillman entered into a copyright licence agreement with Purple Haze Records Limited (“Purple Haze”), a company that Mr Miller had set up in 2001. The agreement provided for the grant to Purple Haze of a licence “to distribute recordings made of the performance by Jimi Hendrix at the 1969 Stockholm Concert and the publication of the same on all sound recording media”. In the same year, Purple Haze released CDs of recordings of the Stockholm performances.

In 2004, Experience Hendrix issued proceedings against both Purple Haze and Mr Miller (case number HC04C02405). It was alleged that Purple Haze had infringed Experience Hendrix’s reproduction and distribution rights in the Stockholm performances and that Mr Miller was jointly liable. Eversheds were again Experience Hendrix’s solicitors. Mr Clive Sutton acted as the defendants’ solicitor.

It is important to note that Experience Hendrix’s claim was for breach of performers’ rights, not breach of copyright. Performers’ rights were first expressly provided for by the Copyright Designs and Patents Act 1988. That Act had a commencement date of 1 August 1989, but it provided for the rights it conferred to apply in relation to performances that had already taken place.

In February 2005, Hart J granted Experience Hendrix summary judgment (see [2005] EWHC 249 (Ch)). He concluded that the Stockholm performances were “qualifying performances” for the purposes of the 1988 Act. In the course of his judgment, Hart J recorded that the defendants’ counsel “did not seek to challenge the proposition that, if the Hendrix Estate ever had any performer’s rights in respect of the Stockholm Performances, those rights are now vested in the claimant as a result of the deed of assignment executed by the English administrator on 13^th November 2000 [i.e. the 2000 Deed of Assignment]”. Hart J also noted that the defendants had advanced a number of arguments based on the Yameta Management Agreement. As to this, Hart J said this:

“31.

The case presented on behalf of the defendants was, in essence, that by the Yameta Agreement [i.e. the Yameta Management Agreement], Jimi Hendrix had so committed himself to Yameta that Yameta had become entitled either in law or in equity to all rights appertaining to performances by Jimi Hendrix. Such rights would have included all copyrights in original works produced by Jimi Hendrix during the currency of the Yameta Agreement and extended to rights, such as performer’s rights, which were not known to the law at the date of the Yameta Agreement. This result was said to obtain either from the fact that the Yameta Agreement was on its true construction a contract of employment (with the result that such copyrights were owned by Yameta by virtue of section 4(4) of the Copyright Act 1956 and that copyrights in recordings commissioned by Yameta were owned by Yameta by virtue of section 12(4) of the 1956 Act), or that a term should be implied in the Yameta Agreement which precluded Jimi Hendrix (or his estate) from doing any act which would frustrate Yameta in the exercise of its function under the Yameta Agreement of achieving the fullest possible commercial exploitation of Jimi Hendrix’s services rendered during its currency.

32.

In my judgment there is a very short answer to this way of putting the defendants’ case. True it is that by the Yameta Agreement Jimi Hendrix in a sense delivered himself ‘body and soul’ to Yameta for its duration. But the purpose of his so subjecting himself was to enable, and entitle, Yameta to fulfil its contractual role and duty of promoting and furthering his ‘career and interest’, and for that purpose of finding suitable employment for him. What Yameta got from this agreement was not the intellectual property rights which were generated by Jimi Hendrix but, by Clause 2, 40% of ‘all gross payments made to the Performer excluding gross payments made in respect of recording royalties or publishing under the control of the Manager in respect of the entertainment industry’. The agreement was no doubt wide enough to allow Yameta to require Jimi Hendrix to enter into, for example, recording contracts, and wide enough to allow Yameta to enter into such contracts on his behalf. What it plainly did not do is entitle Yameta to sell his services to third parties and pocket 100% of the proceeds for itself. A construction of the agreement which permitted that would be quite incompatible with the express provision for Yameta’s compensation to come from gross payments made to Jimi Hendrix. Yameta’s role under the agreement was plainly that of agent for and manager of Jimi Hendrix and not as his employer.”

The order made by Hart J included the following declarations:

“A.

the Claimant [i.e. Experience Hendrix] is entitled to the performer’s property rights (including the reproduction and distribution rights) in the two sets of live musical performances given by Jimi Hendrix at the Konserthusen, Stockholm, Sweden on 9 January 1969 (‘the Stockholm Performances’);

B.

no consent has been given by the Claimant to the making or issuing to the public of copies of recordings of the Stockholm Performances by the Defendants; and

C.

the Defendants have infringed the Claimant’s reproduction and distribution rights by making and issuing to the public copies of recordings of the Stockholm Performances.”

Hart J granted the defendants permission to appeal. Their appeal was, however, dismissed following their failure to make a payment on account of Experience Hendrix’s costs of the action. On 8 June 2005, Neuberger LJ made an order for the appeal to be dismissed unless a payment was made by 20 July (see [2005] EWCA Civ 812). On 3 August, Jacob LJ declined to vary Neuberger LJ’s order otherwise than by extending time by 21 days (see [2005] EWCA Civ 1091). On 22 August, Lloyd LJ dismissed on paper an application seeking “to go over the same ground as was argued before Jacob LJ and Neuberger LJ”, expressing the view that the application was “an abuse of the process of the court and ought not to have been issued”. On 21 November, Chadwick LJ confirmed Lloyd LJ’s decision at an oral hearing (see [2005] EWCA Civ 1524). He observed in his judgment:

“As both Jacob LJ and Lloyd LJ pointed out to Mr Miller, and as Brooke LJ emphasised in his directions – litigation cannot be conducted on the basis that a litigant who fails on one application comes back for another try on the same old material. That is not a sensible or efficient use of the Court’s resources. That is why Lloyd LJ took the view that what is being done in this case can properly be described as an abuse – or as I would put it – a misuse of the Court’s resources.”

By then, Experience Hendrix had issued further proceedings: against Purple Haze, Mr Miller and Mr Hillman (case number HC05C02459). It was alleged by Experience Hendrix that the defendants had infringed its rights by making and issuing copies of recordings of other performances given by Jimi Hendrix. Experience Hendrix was represented by Eversheds.

Mr Miller served a defence and counterclaim on behalf of himself and Purple Haze. He maintained that Experience Hendrix did “not own any rights whatsoever” and that it had “fraudulently manipulated and abused the due process of law by perjury, making false claims and swearing false and unsubstantiated statements to the court”. According to Mr Miller:

“Purple Haze … has been trying to carry on the lawful business of promoting and distributing recordings of Jimi Hendrix as the lawful licensee of John Arthur Hillman the rightful owner of the copyrights in all music and lyrics composed and all performances of the late Jimi Hendrix as per the Sue Records Inc contract dated 1 December 1966. On the 5 December 1975 at a meeting of the board of Directors of Yameta Company Limited … it was resolved that the benefit of outstanding contracts with Jimi Hendrix and Michael Frank Jeffery (both employees of Yameta) be assigned to John A Hillman.”

Experience Hendrix once again applied for summary judgment. The matter came before Park J in March 2006, and he gave judgment in favour of Experience Hendrix on 3 May (see [2006] EWHC 968 (Ch)). Of the claims against Purple Haze and Mr Miller, Park J said this:

“26

I accept [counsel for Experience Hendrix’s] submissions on this part of the case. As regards the entitlement of EH [i.e. Experience Hendrix] to performers’ rights in live performances given by Jimi Hendrix in his lifetime, Hart J.’s decision … creates an issue estoppel which is conclusive against PHRL [i.e. Purple Haze] and Mr Miller. On their behalf Mr Miller said to me that EH never had any rights to the performances. He addressed me at length (though not for as long as he said he would have wished, which would have required five days), and took me through many documents. The documents certainly show that the Hendrix estate in the United States has had many problems, and has been the subject of much litigation. Several persons who have been involved in the affairs of the estate over the years have been accused of frauds or misfeasances of various kinds, and for all I know the allegations against all or some of them may be well-founded. However, in the previous case it was accepted by leading counsel on behalf of PHRL and Mr Miller that, if performers’ rights arose at all, they were by the relevant time owned by EH. Hart J. decided the case in accordance with that principle, and in my judgment PHRL and Mr Miller are estopped from denying it now.

27

Further, although Mr Miller understandably did not understand legal jargon like ‘issue estoppel’ or ‘res judicata’, he did understand the underlying point. He was intent on showing me numerous documents and alleging wrong-doing of various kinds, and I did not think it right to prevent him from doing that. But I will quote an extract from the transcript of the hearing to show that he appreciated that he and PHRL could not realistically succeed. The following comes from pp.28 and 29 of the transcript for March 27, 2006. Mr Miller had been explaining to me that his and the company’s appeal against the decision of Hart J. lapsed because they did not have the £30,000 to make the payment into court that was a condition for the appeal to proceed.

‘MR MILLER: I think we would have won the appeal.

MR JUSTICE PARK: Let us assume you might. … As regards you and Purple Haze Records, I am stuck with the decision against you by Mr Justice Hart. It is final. I cannot be a court of appeal from Mr Justice Hart.

MR MILLER: I understand that.

MR JUSTICE PARK: It is different actually in relation to Mr Hillman. …

MR MILLER: I understand that.

MR JUSTICE PARK: So you would want to show me all this, but in a sense you are showing me a hard luck story at the moment where I cannot help you.

MR MILLER: I understand what you are saying, and Mr Justice Hart did say that he could be wrong when he allowed us to appeal. But you are right, it has been judged and there is nothing that you can do about it.’

28

In any case, on examination none of the matters which have been contentious in the history of the Hendrix estate in the United States can affect the issue of who is entitled to enforce in the United Kingdom such performers’ rights as may exist under English law. Once the court rejected the argument that Yameta … was entitled to rights in Jimi Hendrix’s performances after his death …, the only person who could initially have been entitled to those rights under English law was Mr Alan Leighton-Davis. He was the administrator under English law of the estate of Jimi Hendrix, and letters of administration were granted to him by the Family Division of the High Court of England and Wales. Questions over the propriety or otherwise of events which had happened in the United States cannot have affected the validity of his appointment as administrator of Jimi Hendrix’s English estate. In 2000 he assigned the rights to EH. None of the controversies in which the estate in the United States has been involved can change the two facts that Mr Leighton-Davis was the administrator under English law, and that he assigned the property comprised in the estate to EH. EH needed no further authority than that for it to be entitled to commence the present proceedings….

29

The English law rights were never the subject of any of the matters which caused so much difficulty in the United States. If Mr Miller is seeking to persuade me that there are major questions still unresolved about who the true owners of the shares in EH are or ought to be, he may be right. But that could not affect this case. Whoever is or are the true owner or owners of EH, there is in my view no doubt that, if the performers’ rights exist under English law, the true owner of them is EH. Hart J. decided that the performers’ rights to exist under English law. On that question an issue estoppel undoubtedly arises against PHRL and Mr Miller. In any case I did not understand Mr Miller to argue that no performers’ rights exist at all. His argument is that the rights were not owned by EH. That argument is both foreclosed against him by the issue estoppel created by Hart J.’s judgment, and is in any event misconceived.”

In the context of the claim against Mr Hillman, Park J considered an argument to the effect that the Yameta Management Agreement “was a contract of employment, and that after the employment terminated all rights arising from Jimi Hendrix’s services to the employer continued to be owned by the employer, Yameta”. As to this, however, Park J said (in paragraph 52):

“The only tenable analysis of the agreement is that Jimi Hendrix is appointing Yameta as his manager. It is true that Yameta is his exclusive manager, and that he must accept and perform the engagements which Yameta makes for him. But it is still his manager, and he is not its employee. It is impossible to analyse the provisions of the agreement so as [to] fit the concept of a contract of employment. I do not doubt that the flow of money went from outside parties (such as concert promoters) to Yameta and from Yameta to Jimi Hendrix, Yameta having deducted its 40 per cent commission on the way. But the payments from Yameta to Jimi Hendrix were not payments of salary or other remuneration from an employer to an employee: they were payments from an agent accounting to its principal.”

Mr Hillman appealed against Park J’s decision, but his appeal was dismissed by the Court of Appeal on 24 May 2007 (see [2007] EWCA Civ 501). In the course of his judgment, Jacob LJ (with whom Keene and Toulson LJJ expressed agreement) said (at paragraph 68) that he considered paragraph 52 of Park J’s judgment to be “concise, elegant and entirely accurate”. Jacob LJ added (in paragraph 69):

“this agreement clearly has nothing to do with vesting rights in Yameta. The idea, for instance, that the copyright in any musical work composed by Jimi Hendrix would belong to Yameta is absurd. The same must go for rights in performances.”

In 2011, Mr Miller brought proceedings against Mr Sutton, the solicitor who had acted for him and Purple Haze in the 2004 action. It was Mr Miller’s case that Mr Sutton had been negligent in his conduct of the defence of the earlier proceedings and that, but for that negligence, the claim would have failed. All but one of Mr Miller’s allegations were struck out by Eder J on 9 October 2011, but Mr Miller was allowed to develop an allegation that:

“The Defendants failed to show the Court that Jimi Hendrix was working under ‘an exclusive recording artist’s contract’ that would have resulted in the claim not standing up in any Court of law.”

On 2 March 2012, Mr John Martin QC, sitting as a Deputy High Court Judge, allowed an application by Mr Sutton for the claim to be struck out or summary judgment on it (see [2012] EWHC 906 (Ch)). Mr Martin noted that Mr Miller had produced new particulars of claim incorporating “a repetition of complaints that Eder J struck out” and said that “any allegation in the new Particulars of Claim that merely repeats an allegation that has already been struck out must itself be struck out as an abuse of process” (paragraph 7). With regard to the allegation that Eder J had permitted Mr Miller to pursue, Mr Martin said:

“20.

Although the initial duration of the Sue Records Agreement was two years from 27 July 1965, it was clearly still in existence … in June 1968. That suggests that the first of the two options to extend had been exercised; and on that basis Mr Sutton accepts for the purposes of this application that the Sue Records Agreement was still in effect at the time of the Stockholm performances in January 1969.

21.

Given that the agreement was in effect, the critical question is whether Mr Miller has a reasonable prospect of showing that it conferred rights to recordings of the Stockholm performances. If it did, then those rights will have taken priority over Jimi Hendrix’s performers’ rights, and so would have provided a defence to the claim made on behalf of his estate by Experience Hendrix….

22.

It is, however, on this last issue that I consider Mr Miller fails: he does not have a reasonable prospect of successfully establishing that the recordings of the Stockholm performances were recordings to which the Sue Records Agreement applied. On the face of it, they were not: the agreement contemplates the making of recordings to a commercial standard under the supervision of Sue Records. Despite Mr Miller’s evidence recorded in the next paragraph, he suggests that there is some doubt about the circumstances in which the Stockholm performances were recorded; but it is quite clear that they are recordings of live performances. Nothing in the Sue Records Agreement prevented Jimi Hendrix from giving live performances: the only obligation relevant to such performances is that in clause 3 preventing him from performing any composition for the purpose of making any other form of recording than phonograph records except on terms that neither the performance nor any recording of it would be used for the purpose of making phonograph records.

23.

Despite these facts, there would … have been nothing in principle to prevent Jimi Hendrix and Yameta (which was by then entitled to the benefit of the Sue Records Agreement) agreeing that the Stockholm performances should be recorded under the terms of the agreement and count towards the minimum recording obligation. On Mr Miller’s own evidence, however, that is not what happened. In a witness statement dated 20 January 2005, made for the purposes of the hearing before Hart J, he said this.

‘Mr Lars-Olaf Helen told me Swedish Radio recorded the Concerts at the Konserthusen and from the recordings vinyl records were produced and sold to the public and promotional copies were given out. ... From my understanding of what I been told by Mr Lars-Olaf Helen the existing sound desk in the concert hall was operated by technicians of Swedish Radio as opposed to Swedish TV. It may well be that the sound from this sound desk was transmitted by a radio link through a mobile transmission van outside the concert hall to the radio station where the recording was completed. The concert hall plus the use of the sound desk would have been paid for by either [the agent] or Swedish Radio according to the exact nature of the arrangement between them. Yameta would have known of the fact of the recording of the concerts bv Swedish Radio and authorised it. This is likely to have been provided for in Yameta’s contract with the agent’ (emphasis added).

24.

Mr Miller told me that he was not responsible for the contents of his witness statement, and that he had never had any such conversation with Mr Helen. I have difficulty in accepting that: the conversation was described in the witness statement as having occurred shortly before the statement itself was made, and I think Mr Miller’s memory of what occurred is likely to have been more reliable in 2005 than now, seven years after the relevant events. But in any case, the witness statement was part of the material on which Hart J was asked to act, and he would have taken it into account in his consideration of the effect of the Sue Records Agreement.

25.

What Mr Miller’s evidence establishes is that Yameta consented to the making of the recording by Swedish Radio. That has two consequences: first, that the recording was not made pursuant to the Sue Records Agreement; secondly, that Jimi Hendrix did not break the Sue Records Agreement by allowing the recording to be made. Each consequence is important. Since the recording was not made under the Sue Records Agreement, the rights conferred on Yameta by that agreement did not apply to it; and, since the recording did not involve a breach by Jimi Hendrix of his contract with Yameta, there could be no objection (on the general principle that a person may not take advantage of his own wrong) to an assignee from his estate enforcing his performers’ rights against Yameta’s assignee.”

On appeal (see [2013] EWCA Civ 359), Etherton C summarised the issue that arose as:

“whether the Deputy Judge was right to conclude that Mr Miller has no real prospect of succeeding in his claim that it was negligent of Mr Sutton to fail to appreciate that a good defence to the Experience Hendrix proceedings would be found in … the Sue Records Agreement …, and to fail to ensure that a copy of the Sue Records Agreement was given to counsel for Purple Haze and Mr Miller in the Experience Hendrix proceedings and that reliance was placed on the Sue Records Agreement by way of defence to those proceedings.”

Etherton C went on to conclude that “the reasoning of the Deputy Judge on the ambit of the Sue Records Agreement” was “obviously correct” (paragraph 35). The other members of the Court agreed that Mr Miller’s appeal should be dismissed. Pitchford LJ said (in paragraph 43):

“I would add that Mr Miller’s allegation that his witness statement dated 20 January 2005 was concocted by Mr Sutton, and that he, Mr Miller, did not read it before he signed it, is wholly lacking in credibility. The contemporaneous documentation, in particular the letter dated 20 January 2005 from Mr Miller himself to Mr Sutton, makes it plain that the witness statement was prepared upon the basis of detailed instructions from Mr Miller. The witness statement concludes with a statement by Mr Miller that he made the witness statement believing it to be true. Having heard Mr Miller’s explanation for the witness statement, I am left in no doubt whatsoever that it represented his genuine belief in 2005, whatever his belief may be today. The witness statement is fatal to the only remaining aspect of Mr Miller’s case, namely the Sue Records agreement, for the reasons explained by the Deputy High Court Judge.”

In July 2013, Mr Miller took delivery of some 43 cartons of documents from Harbottle & Lewis, the solicitors who had acted for PPX in connection with Experience Hendrix’s claims against it. In February of the following year, he issued two new sets of proceedings. The defendants to the first (Claim 826) were Experience Hendrix, Ms Hendrix (the chief executive officer of Experience Hendrix) and Mr Reed Wasson (formerly in-house counsel at Experience Hendrix). The other claim (Claim 827) had as its defendants Eversheds, Mr Gardiner and Mr Nicholas Valner. Mr Gardiner is now a partner in Michael Simkins LLP, but he was with Eversheds between 1998 and 2011 (from 2006, as a partner) and was involved with the Experience Hendrix litigation from around May 2001. Mr Valner, too, used to be a partner in Eversheds, and he was the supervising partner on the Experience Hendrix litigation from 1999 to 2005. He died on 13 July 2014.

The claim form in Claim 826 explained:

“This is a claim to set aside the Judgement and order of the late Honourable Mr Justice Hart in case number HC04C02405 in February 2005. The Claimant obtained new evidence in September and October 2013 that clearly proves the Defendants invented false evidence to claim they owned the ‘performer’s rights’ to the music of the late Jimi Hendrix.”

“Damages and costs in excess of £5million … plus interest and costs” were claimed.

The claim form in Claim 827 summarised the claim as follows:

“The Defendants has unlawfully interfered in the Claimant’s business causing financial damage. The Defendants contacted numerous clients of the Claimant fraudulently claiming their client, Experience Hendrix LLC owned the performer’s rights to the music of the late Jimi Hendrix. They utilised ‘invented false evidence’ to deceive the Court and pervert the course of Justice on 3 occasions, in case number HC04C02405 and HC05C02459 against the Claimant and his company Purple Haze Records Ltd and case number HQ0102014 (nothing to do with the Claimant). The Claimant obtained new evidence in September and October 2013 that clearly proves the Defendant’s used false and fabricated evidence to deceive the court and pervert the course of Justice. The Claimant is claiming damages and costs for the Defendants unlawfully interfering with the Claimant’s business and reputation by making fraudulent claims based upon forged documentation. Their client had and has no rights as they fraudulently claim.”

The claim was said to have a value of £5 million.

The particulars of claim in each action challenged the validity of the 2000 Deed of Assignment. The particulars of claim in Claim 826 stated:

“New Evidence that was obtained in September and October 2013 proves the Defendants have deceived the Court, now on three occasions by inventing false evidence. The first case of deceiving the Court was in case number HQ0102014 that had nothing to do with the Claimant.

What is important about that case, is to bring it to the Court’s attention, as the new evidence supports, the Defendants invented a ‘Deed of Assignment’ in the case number HQ0102014 to deceive the Court with and pervert the course of Justice after failing to show title in a previous case number HQ0001156 (1999E No.188)….

What is relevant to the two cases HC04C02405 and HC05C02459 the Defendants made against the Claimant and Purple Haze Records Limited was the same invented Deed of Arrangement and Assent dated 13 November 2000 was again utilised by the Defendants to deceive the Court and Pervert the Course of Justice.”

In Claim 827, the particulars of claim alleged:

“The fraudulent claims by the Defendants continued from 2003 through until 2011, claims that were based upon one document, the invented ‘Deed of Assignment’. Without the Deed the Defendant’s client had no title to the music of the late Jimi Hendrix.”

Shortly afterwards, Mr Miller issued a further claim (number HC14E01635) against Ms Hendrix. This time, Mr Miller sought “to recover in excess of £5million plus costs and damages”. The claim form alleged:

“The Defendant fraudulently claims that her company, Experience Hendrix LLC is owned by the Estate of the late Jimi Hendrix’s father James Allen Hendrix and members of his family, namely the Defendant. The Defendant has deceived the Court on 4 occasions, twice against the Claimant causing severe damage.”

Mr Miller went on to say that he was asking the Court “to Order the disclosure the exhumation and DNA of Jimi Hendrix to prove that James Allen Hendrix was the biological father of Jimi Hendrix and evidence to prove that the Defendant is the sister of Jimi Hendrix as she claims”. In August 2014, Mr Miller applied for permission to serve the claim outside the jurisdiction, but on 1 September the application was dismissed by Deputy Master Mark on the basis of, among other things, “abuse of process following dismissal of a previous claim against the same Defendant … in Claim [826] as being totally without merit”.

Mr Miller relied in support of his claims in Claims 826 and 827 on materials which he said showed that Mr Hagood had not in fact signed the 2000 Deed of Assignment or, if he had, that he had had no power to do so. Prominent among these materials was a witness statement dated 21 October 2013 in which Mr Hagood said:

“6.

I have been provided with a Deed of Assignment and Assent dated November 13, 2000 bearing what appears to be my signature as of November 10,2000. Although the signature appears to be similar to mine, it is not mine and I did not sign said Deed. I know the person in whose presence the signature purports to have been made and will confirm that I did not, and it would be highly unlikely for me to sign such a document with that person as my witness.

7.

Furthermore following the Distribution of Assets and Liabilities document dated March 30, 1977, I would not have been empowered as the New York Administrator of the Estate of Jimi Hendrix to have signed any such documents after that date.

8.

In addition, I would not have been empowered to authorise, direct or consent to Mr Alan Leighton Davis to have executed this Deed of Assignment and Assent dated November 13, 2000, after my termination as Administrator of the Estate of Jimi Hendrix on March 30, 1977 and did not do so.

9.

Looking at the Deed of Assignment and Assent it appears to have a line above my purported signature which seems to have been superimposed.

10.

It would be my opinion that this ‘Deed’ is a fabrication in so far as it represents that I was a party to it as the Principal. I had, in fact and in law, relinquished that role and right in 1977 in the New York Surrogate’s Court and any such signature on November 10, 2000 would have been invalid and unenforceable.”

Mr Miller also disputed the authenticity of Mr Leighton-Davis’s signature on the 2000 Deed of Assignment.

Mr Leighton-Davis and Mr Hagood are both now dead. Mr Leighton-Davis died in 2003, Mr Hagood in May 2014.

For their part, the defendants to Claims 826 and 827 argued that Mr Miller’s allegations could be seen to be unfounded from contemporary documents. These included correspondence with Mr Hagood in 2000.

In May of 2014, the defendants to Claims 826 and 827 applied for summary judgment in their favour or for the proceedings to be struck out. The applications were supported by a witness statement made by Mr Little, who (as I have mentioned) was the partner in Eversheds with conduct of Claims 826 and 827 on behalf of the defendants to those proceedings.

The applications came before His Honour Judge Hodge QC, sitting as a Judge of the High Court, in July 2014 and were successful. Miss Blanchard QC appeared for the defendants. She had been retained by Eversheds in May 2014.

In his judgment, delivered on 16 July, Judge Hodge noted that Mr Miller was seeking to impugn the 2000 Deed of Assignment, but considered his challenge to have no real prospect of success (see [2014] EWHC 2695 (Ch)). In the final paragraphs of the judgment, Judge Hodge said this:

“94

Those are the submissions. I bear in mind the test to be applied on a summary judgment application, the burden of which falls on the applicant defendants: have they shown that there is no real prospect of the claimant succeeding on the forgery allegations? I am satisfied that they have discharged that high burden. There is simply no evidence whatsoever that Mr Leighton-Davis did not execute the deed of assignment. There is no suggestion that Mrs Castle did not witness his signature. There is simply no evidence that he did not execute the deed of assignment. That of itself, it seems to me, is fatal to the claim. Whether or not Mr Hagood executed the deed of assignment seems to me to be irrelevant to the ability of Mr Leighton-Davis himself to pass the title to assets, of which he was the English administrator, to Experience Hendrix LLC.

95

But, in any event, I am satisfied that there is no real prospect of the claimant establishing that Mr Hagood’s signature on the deed of assignment was forged. As Ms Blanchard submits, the contemporaneous documentation is absolutely compelling in that regard. It is quite clear that, while one does not know why Mr Hagood should have forgotten it, he did clearly execute the deed of assignment; and that he clearly considered that he had the power in 2000 to do so. Whatever the position about the discharge of an attorney and administrator under New York law, Mr Hagood clearly considered that he had the power to direct and authorise Mr Leighton-Davis to tidy up what was a formal flaw, amounting to a technicality, in the title of Experience Hendrix LLC to the performer’s rights. As Ms Blanchard says, one will never know why Mr Hagood said what he did in his letter and witness statement; but I am entirely satisfied that he was mistaken. He is no longer here to give evidence, or to be cross-examined.

96

This matter, if it were to go to trial, would proceed on the basis of the documents. I am entirely satisfied that the claim in 826 would, on those documents, be bound to fail. It may be that Mr Hagood, with the passage of some 13 years, has simply forgotten what he did in the year 2000. I note that in the witness statement that Mr Miller made for the hearing before David Richards J on 19 December 2013, at paragraph 25 Mr Miller said, ‘Most people do not remember what they said a week previously, let alone 20-plus years ago’. It seems to me that those words can be applied to Mr Hagood in 2013, when casting his mind back to what I am satisfied he did do in the year 2000, namely execute the deed of assignment.

97

That, as Ms Blanchard said, is the end of the case. Claim number 827 must fail with the dismissal of claim number 826. Even if that were not the case, I would have taken the view that claim number 827 is insufficiently particularised in terms of allegations of knowledge on the part of all of the defendants of any wrongdoing on the part of Experience Hendrix LLC. I am also concerned that the claims that Mr Miller is seeking to advance are claims that properly belonged to the company [Purple Haze], which is now dissolved; but it is not necessary for me to go into the question whether Mr Miller might be able to advance some claim on, presumably, principles of reflective loss. For all of those reasons, I am satisfied that this is a case where summary judgment should be given against Mr Miller on both claims 826 and 827.”

Judge Hodge went on to order Mr Miller to pay the defendants’ costs on the indemnity basis and to state that both the claims before him had been totally without merit. He also considered whether he should make a civil restraint order against Mr Miller. With “considerable reluctance”, Judge Hodge concluded that he lacked jurisdiction to make such an order. He explained (in paragraph 115):

“The net effect is that Mr Miller has, to date, issued two claims which have been held to be totally without merit. There is a third claim against the third defendant in claim number 826, Janie Hendrix. It may well be that that claim will, on a future occasion, also be said to be totally without merit. But that claim is not presently before me…. That means there are but two claims that have been recorded as being totally without merit. I do not regard that as constituting an instance of a party ‘persistently’ issuing claims which are totally without merit. The issue of two claims is not ‘persistent’ conduct, particularly when one looks at the contrasting paragraph 2, relating to limited civil restraint orders. Therefore, with reluctance, because I acknowledge that a civil restraint order may prove justified in the near future, it does not seem to me that I have, as of today, the necessary jurisdiction to make an extended civil restraint order, much though I might wish to do so.”

Mr Miller attempted to appeal Judge Hodge’s decision, but to no avail. On 4 December 2014, Floyd LJ refused permission to appeal and characterised the application as totally without merit. He also decided that Mr Miller should not be able to request an oral hearing.

On 23 March 2015, Mr Miller issued an application in Claims 826 and 827 for Judge Hodge’s judgment to be set aside “on the basis of fraud by the defendants”. Particulars of claim explained:

“This is a Claim to set aside the Judgement of Judge Hodge QC in cases numbers HC14E00826 and HC14F00827 dated 24 July 2014 because the Judgement was based upon fraudulent misrepresentation, the use of false evidence in order to deceive the Judge with and the Defendants perverted the course of Justice.”

The claims before me (Claims 122 and 123) were both issued on 14 January 2015. The defendants to Claim 122 are Mr Gardiner and Ms Hendrix. The defendants to Claim 123 are Mr Little and Miss Blanchard.

The claim form in Claim 122 alleges:

“FRAUD UNRAVELS ALL. The First Defendant Defrauded the Court to obtain two Judgements on behalf of the Second Defendant, Janie Hendrix …, a fraudster who claims to own certain rights to the music of the late Jimi Hendrix. The First Defendant deceived the Court & Perverted the Course of Justice by utilising false evidence in two cases against the Claimant, case numbers HC04C02405 and HC05C02459 causing financial damage, loss of business and anxiety over a number of years. According to the rule of law a Solicitor becomes a party to a fraud by conducting their case so as to intentionally deceive the Court as the First Defendant has done. The First Defendant provided to the Court a deed of Assignment & Assent dated 13 November 2000 that new evidence recently obtained clearly proves was produced to defraud the Court. The Claimant is seeking damages and costs for over six years of aggravation and financial ruin caused by the Defendants.”

Mr Miller refers in the particulars of claim to having obtained “new evidence consisting of 43 cartons of documents from Harbottle & Lewis LLP between late July and October 2013”.

The claim form in Claim 123 alleges:

“Fraud Unravels All. The Defendants have deceived the Courts on two occasions by inventing false evidence to cover up two previous criminal offences of using fabricating evidence to pervert the Court of Justice thereby perverting the course of Justice themselves in two cases HC14E00826 and HCF00827. The First Defendant provided a number of Exhibits RML 1 to the … Second Defendant who utilised these fabricated documents to cover up a fraud on the Courts, for Janie Hendrix a fraudster … who fraudulently claims to own certain rights to the music of the late Jimi Hendrix. By the Defendants criminal acts of fraud and covering up … two previous criminal offences of deceiving the Courts they have caused the Claimant financial loss and extreme stress. The new evidence recently obtained clearly proves the Exhibits RML 1 provided by the First Defendant to the Second Defendant were fabricated in order to defraud the Court and cover up a previous criminal fraud. The Claimant is seeking damages and costs for the aggravation and loss caused by the Fraudulent act.”

The particulars of claim conclude:

“The above background history has nothing to do with this claim apart from providing some historic background. The Claimant has factual evidence to support the above should it be necessary.

The Defendants have caused the Claimant unnecessary stress, aggravation and financial loss by their actions for which the Claimant is seeking damages and costs. The Defendants introduced so called evidence to deceive the Court with on two cases HC14E000826 and HCF00827 provided to them by their client Experience Hendrix LLC / Janie Hendrix to deceive the Court further with causing the Claimant even further grief.”

On 13 February 2015, the defendants to Claims 122 and 123 issued applications for the claims to be struck out and/or summary judgment to be granted in their favour. They also ask that an extended civil restraint order (“ECRO”) be made against Mr Miller.

On 20 February 2015, the defendants’ applications came before Proudman J. In the course of her judgment, she said this:

“I am asked to make directions only, but I must tell Mr Miller … that he is at risk, if his claims are rejected, of an extended civil restraint order, since he has had three totally without merit orders made against him.”

Proudman J also noted that Mr Miller had told her that he was “not proposing at the moment to issue any further proceedings”.

On 23 February 2015, Mr Miller said this in an email to Mr Little, Miss Blanchard and Mr Gardiner:

“I promised I will NOT be issuing any further claims and I will NOT be doing so, I do not have to.”

Later in the email, Mr Miller said:

“As I said I do not have to issue any claims as other parties in the United States will now be taking action both in New York and Seattle and they will also be reporting and charging you with being a party to what is a major fraud….

It is my intention that the three of you go inside for your criminal acts…. If you think for one minute I will allow three crooked members of the legal profession to cause the damage you three have caused, think again.

You see, I really do not have to do anything else, others will be taking over the actions and I will have nothing to do with them apart from providing them with the evidence and any assistance by way of information and facts….”

In a further email to Mr Little, Miss Blanchard and Mr Gardiner of 6 March 2015, Mr Miller said:

“This matter will not be going away until Justice is done.”

Mr Miller said that he was “applying to the Supreme Court to overturn the judgement of Hodge and his costs order overturned by the Supreme Court and/or the International Court of Human Rights”. He also explained that he was attaching:

“the papers that will be placed into the County Court for your fraud and being a party to that fraud”.

The “papers” in question comprised a draft claim form to be issued in the County Court against Mr Gardiner, Ms Hendrix, Mr Little and Miss Blanchard. The reason for the claim is stated to be “to have these Defendants brought before the Court to explain their criminal actions and face Judgement that under the Perjury Act giving false evidence is punishable by up to seven years in prison”.

Mr Simon Devonshire QC, who appeared for the defendants, advanced a variety of objections to the two sets of proceedings before me. I consider some of his points below. I do not think I need address every one to arrive at a conclusion. In my view, it is obvious that Mr Miller’s claims are fatally flawed.

In the first place, the claim forms and particulars of claim do not contain any properly particularised claim against any defendant. So far as Claim 123 is concerned, the bulk of the particulars of claim are expressly stated to have “nothing to do with this claim apart from providing some historic background”. No adequate explanation is given of why the defendants to the claim (Mr Little and Miss Blanchard) are said to have “deceived the Courts on two occasions by inventing false evidence to cover up two previous criminal offences” (to quote from the claim form). As Miss Blanchard has observed in a witness statement, the claim against her really “begins and ends with the allegation that, because [she] acted for [her] former clients, who [Mr Miller] asserts are fraudsters, [she] must, perforce, be a fraudster [herself]”. So far as Mr Little is concerned, Mr Miller says little more than that he (Mr Little) exhibited documents which, according to Mr Miller, were fabricated. He does not attempt to provide grounds for thinking that Mr Little knew the documents to be other than what they appeared to be. The position is broadly similar with Claim 122. In that instance, the particulars of claim do identify particular passages in witness statements made by Mr Gardiner in HC04C02405 which Mr Miller maintains were wrong. He does not, however, specify why Mr Gardiner should have been aware of the supposed deficiencies.

Moving from pleading to substance, there is no good reason to think that Mr Miller’s allegations (so far as they can be discerned) have any real foundation. Mr Gardiner has explained in a witness statement that he “had nothing whatever to do with the creation of the [2000] Deed of Assignment” and that he “never had any reason to doubt [its] authenticity”, Mr Little has stated in a witness statement that Mr Miller’s allegations are “completely groundless”, and Miss Blanchard has said in her witness statement that she does not now have, nor has ever had, “any reason to believe that any of the documents relied on by [her] former clients in defence of the February 2014 Claims are fabricated”. There would be no solid basis for disputing this evidence even if there were a serious question mark over the validity of the 2000 Deed of Assignment, but there is not. As was explained by Judge Hodge (an attempt to appeal from whom was dismissed by Floyd LJ as totally without merit), the “contemporaneous documentation is absolutely compelling” (see paragraph 95 of Judge Hodge’s judgment – paragraph 40 above).

In any case, it is evident from the judgments given in earlier proceedings that neither Mr Miller nor Purple Haze (which was anyway dissolved in 2006) would have held performers’ rights in respect of the relevant Jimi Hendrix performances even if the 2000 Deed of Assignment could be impugned. Hart J and Park J each concluded that the Yameta Management Agreement had not operated to confer performers’ rights on Yameta (see paragraphs 19 and 25 above), and Jacob J thought the idea that the agreement had anything to do with vesting rights in Yameta “absurd” (paragraph 26 above). Nor could the Sue Records Agreement assist Mr Miller. Mr Martin QC held that Mr Miller did “not have a reasonable prospect of successfully establishing that the recordings of the Stockholm performances were recordings to which the Sue Records Agreement applied” (paragraph 28 above), and his decision was endorsed by the Court of Appeal (paragraph 29 above).

On top of that, any loss would have been suffered by Purple Haze rather than Mr Miller personally. Had there, therefore, been any basis for a claim against the defendants, it would have needed to be pursued by Purple Haze. “A claim will not lie by a shareholder to make good a loss which would be made good if the company’s assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, has declined or failed to make good the loss” (see Johnson v Gore Wood & Co [2002] 2 AC 1, at 35, per Lord Bingham).

A further point is that Mr Gardiner, Mr Little and Miss Blanchard are all protected by judicial proceedings immunity. This immunity exists “to prevent persons acting honestly in discharging a public function from being harassed afterwards by actions imputing to them dishonesty and malice, and seeking to make them liable in damages” (see Williamson v Umphray and Robertson (1890) 17 R 905, at 911. Inroads have been made into this immunity, but it continues to apply in relation to the giving of evidence, statements of case and other documents placed before the Court (see Singh v Reading BC [2013] EWCA Civ 909, [2013] 1 WLR 3052, especially at paragraph 66). While the immunity is not now considered to extend to torts concerned with malicious prosecution or to the creation of real evidence, it is applicable to the preparation and giving of witness evidence about such matters (see Crawford v Jenkins [2014] EWCA Civ 1035, especially at paragraph 42).

So far at least as Ms Hendrix and Mr Gardiner are concerned, Mr Miller’s claims must also be barred by principles of res judicata. These include the principle that “once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings” (“cause of action estoppel”) and the principle that “even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties” (“issue estoppel”) (see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160, at paragraph 17, per Lord Sumption). Of course, there can be circumstances in which new evidence will allow a judgment to be set aside for fraud (see e.g. Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, [2013] 1 CLC 596, at paragraph 106), but (a) no new evidence of any significance has become available since Judge Hodge gave judgment last year and (b) even if there had been such evidence, Mr Miller would have been bound by Judge Hodge’s decision unless and until he had succeeded in having it set aside. In the circumstances, it cannot be open to Mr Miller to go behind Judge Hodge’s decision in the case of at any rate Ms Hendrix (who was a defendant to Claim 826) and Mr Gardiner (who was a defendant to Claim 827).

In all the circumstances, I shall strike out both Claim 122 and Claim 123. I shall further record, in accordance with CPR 3.4(6), that I consider each claim to be totally without merit.

CPR 3.11 empowers the Court to make a CRO in the circumstances specified in Practice Direction 3C. Paragraph 3.1 of that Practice Direction states that an ECRO may be made where a party has “persistently issued claims or made applications which are totally without merit”. “Persistence” in this context “must require more than two claims or applications which are totally without merit” (to quote from Birss J in Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch), at paragraph 96). When deciding whether a litigant has made applications that were totally without merit, applications that were not so characterised at the time can be relevant: as Birss J noted in the Lilley case (at paragraph 104), “the court is entitled to address earlier applications not characterised as totally without merit, decide that they were in fact totally without merit and then take them into account in considering an Extended CRO”.

In the present case, at least five claims or applications have been held to be totally without merit. Judge Hodge concluded that Claims 826 and 827 were both totally without merit; Floyd LJ decided that Mr Miller’s application for permission to appeal was totally without merit; and I have already said that I consider Claims 122 and 123 to be totally without merit. It is evident, as it seems to me, that claim HC14E01635 (as to which, see paragraph 34 above) was also totally without merit: as Deputy Master Mark noted, it followed the “dismissal of a previous claim against the same Defendant … in Claim [826] as being totally without merit”. While it is not before me, Mr Miller’s application to set aside Judge Hodge’s judgment for fraud (as to which, see paragraph 43 above) also strikes me as being totally without merit. So too, it seems to me, would the County Court proceedings mentioned in paragraph 50 above be were they to have been (or to be) issued.

In the circumstances, I am satisfied that Mr Miller has “persistently issued claims or made applications which are totally without merit”. Further, it appears to me that Mr Miller is plainly someone who, as regards the subject matter of the present proceedings, refuses “to take ‘no’ for an answer” (to adopt words used by the Court of Appeal in Bhamjee v Forsdick [2003] EWCA Civ 1113, [2004] 1 WLR 88, at paragraph 42). In that connection, the correspondence quoted in paragraphs 49 and 50 above is noteworthy.

All in all, I consider it appropriate to make an ECRO for a two-year period.

I shall order Claims 122 and 123 to be struck out and also make an ECRO against Mr Miller.