Miller v Experience Hendrix LLC & Ors

This is the hearing of an application (“the Application”) issued on 23 March 2015 by the Claimant, Mr. Lawrence Miller, in two actions commenced by him in February 2014 (“Claims 826 and 827”).

In Claim 826, Mr. Miller had sought the setting aside of a judgment given against him by Hart J in earlier proceedings in 2005 on the grounds that it was obtained by fraud. In Claim 827, Mr. Miller had sought damages for unlawful interference with his business. Both Claims 826 and 827 were summarily dismissed by HHJ Hodge QC (sitting as a High Court Judge) on 16 July 2014: see [2014] EWHC 2695 (Ch). In his judgment (“the Hodge Judgment”) Judge Hodge held that both Claims had no real prospect of success and that they were totally without merit.

Mr. Miller’s Application before me is to set aside the Hodge Judgment itself on the grounds that it was obtained by fraud on the part of the Defendants to Claims 826 and 827. The Defendants have submitted that I should strike out the Application as an abuse of process.

The Application arises from a long history of litigation involving Mr. Miller and the rights relating to the recordings of the late Jimi Hendrix. Relevant parts of that history are referred to in the Hodge Judgment and are narrated in some detail in paragraphs 2-50 of a more recent judgment of Mr. Justice Newey in Miller v. Gardiner [2015] EWHC 1712 (Ch) given on 16 June 2015 (“the Newey Judgment”).

In summary, for about a decade, Mr. Miller has been concerned to overturn judgments given against him and his former company, Purple Haze Records Ltd (“PHRL”) in 2005 and 2006.

The first judgment was given by Hart J: [2005] EWHC 249 (Ch). Hart J held that a company called Experience Hendrix Limited (“EHL”) was entitled to Jimi Hendrix’s performers’ property rights under Part II of the Copyright Designs and Patents Act 1988 in relation to certain live performances given by him in Stockholm in 1969. Hart J also held that Mr. Miller and PHRL had infringed those rights by releasing a double CD purporting to be a recording of the Stockholm Performances in 2003.

To establish its title to sue in respect of those Part II rights, EHL had relied upon a chain of title that included a Deed of Assignment made in its favour on 13 November 2000 by a Mr. Leighton-Davies who was the English administrator of Jimi Hendrix’s estate (“the Deed of Assignment”). The parties to the Deed of Assignment were Mr. Leighton-Davies and EHL, together with a Mr. Hagood, who had been the New York Administrator of Jimi Hendrix’s estate between 1971 and 1977, and a James A Hendrix as the beneficiary of Jimi Hendrix’s estate.

The Deed of Assignment had been entered into in connection with other proceedings brought by EHL against a company known as PPX Enterprises Inc concerning an agreement made in 1973 because it was thought that the right to sue under the 1973 agreement might still have been vested in Mr. Leighton-Davies. As well as assigning the rights under the 1973 agreement, the Deed of Assignment also purported to assign to EHL any other property of Jimi Hendrix’s estate vested in Mr. Leighton-Davies. Paragraph 9 of Hart J’s judgment recorded that leading counsel instructed on behalf of Mr. Miller and PHRL in 2005 did not challenge the proposition that such performers’ rights as Jimi Hendrix might have had in the Stockholm Performances had been vested in EHL by the Deed of Assignment.

For their part, Mr. Miller and PHRL had relied upon a chain of title that they contended stemmed from a management agreement entered into in 1966 between Jimi Hendrix and a company known as Yameta (“the Yameta Management Agreement”). They contended that PHRL was the assignee of the rights under that agreement.

In finding for EHL, Hart J upheld EHL’s claims to enforce Jimi Hendrix’s performers’ rights and held that, on its true meaning and effect, the Yameta Management Agreement upon which Mr. Miller and PHRL had relied had nothing to do with intellectual property rights. An appeal by Mr. Miller and PHRL was ultimately dismissed by Chadwick LJ as a result of their failure to make a payment on account of EHL’s costs: [2005] EWCA Civ 1524.

The second judgment was given by Park J in a second set of proceedings by EHL against Mr. Miller and PHRL: [2006] EWHC 968 (Ch). Park J found that Mr. Miller and PHRL had further infringed EHL’s performers’ rights by making and issuing copies of other recordings of Jimi Hendrix.

In the course of the trial of that second claim, Mr. Miller addressed Park J at some length on matters concerning the administration of the estate of Jimi Hendrix in the United States and contended that EHL did not have any performers’ rights. Park J held that in light of Hart J’s judgment, Mr. Miller was prevented by the doctrines of res judicata and issue estoppel from making such submissions, but in any event he went on to make the following observations:

“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 [EHL]. 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 [EHL]. [EHL] needed no further authority than that for it to be entitled to commence the present proceedings.”

Park J’s judgment was affirmed on appeal: [2007] EWCA Civ 501.

After failing to overturn the judgments against him, Mr. Miller sued the solicitor (Mr Sutton) who had acted for him, alleging that Mr Sutton had been negligent in not putting before Hart J all of the material that he claimed established his rights to exploit recordings of the performances in question. Having failed to succeed in reliance upon the Yameta Management Agreement, Mr. Miller instead sought to rely upon an earlier “Exclusive Recording Agreement” that Mr Hendrix had made with a company called Sue Records on 27 July 1965 (“the Sue Records Agreement”). Mr. Miller claimed that Mr. Sutton had failed to ensure that the Sue Records Agreement was brought to the attention of Hart J and had failed to run an argument (i) that the Sue Records Agreement was an exclusive recording agreement, (ii) that the European rights under that Agreement had been acquired by Yameta, and then passed on to a Mr Hillman who in turn licensed them to PHRL in 2003, and (iii) that the Stockholm Performances fell under the Sue Records Agreement. Mr. Miller contended that this argument would have defeated EHL’s claim to enforce any performers’ rights derived through the Deed of Assignment.

Mr. Miller’s claim against Mr. Sutton was struck out by a combination of Eder J and Mr. John Martin QC (sitting as a Deputy High Court Judge): see [2012] EWHC 906 (Ch). Mr. Martin QC held that nothing in the Sue Records Agreement prevented Jimi Hendrix giving live performances, and that although he and Yameta (which was at the time the assignee of the benefit of the agreement) could have agreed that the Stockholm Performances would count towards his minimum recording obligation under the agreement, they had not done so. Indeed, Mr. Martin QC referred to a witness statement that Mr. Miller had deployed before Hart J that had expressed the view that Yameta would have known of the recording of the concerts by Swedish Radio and authorised it. Mr. Martin QC summarised his conclusions on this point in this way:

“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.”

An appeal was dismissed by the Court of Appeal in February 2013: see [2013] EWCA Civ 359. The Court of Appeal affirmed Mr. Martin QC’s reasoning on the ambit of the Sue Records Agreement. The Court of Appeal also rejected a new argument made on the appeal by Mr. Miller that the tracks on PHRL’s CDs were not in fact taken from a live recording of the Stockholm Performances but had been taken from studio recordings produced by a record producer called Chas Chandler; and it emphatically rejected an assertion by Mr. Miller that his statement concerning the recording of the Stockholm Performances by Swedish Radio had been drafted by Mr. Sutton without instructions and that he (Mr. Miller) had signed the witness statement without reading it. In that latter regard, the Court of Appeal referred to a letter sent by Mr. Miller to Mr. Sutton on 20 January 2005 - the same day as he signed his witness statement - that clearly stated that the recording had come originally from Swedish Radio.

In July 2013 Mr. Miller obtained a large quantity of documents from the firm of solicitors who had acted for PPX in the earlier litigation brought by EHL. These documents apparently prompted Mr. Miller to form the view that EHL and its officers, together with two partners at EHL’s solicitors, Eversheds, had fabricated the Deed of Assignment by forging the signature on it of Mr. Hagood. Mr Miller obtained a short witness statement from Mr. Hagood dated 21 October 2013 stating that he had ceased to be the New York Administrator of Jimi Hendrix’s estate in 1977 and expressing the view that he had not signed the Deed of Assignment in 2000.

Armed with this material, on 20 December 2013 Mr. Miller issued an application to set aside the judgment of Hart J on the basis that it had been obtained by fraud. This application was rejected by David Richards J on 16 January 2014 on the basis that the correct procedure was for Mr. Miller to issue a fresh claim under Part 7. Mr. Miller duly issued Claims 826 and 827 on 26 February 2014. In Claim 826 Mr. Miller contended that Hart J had been deceived by the fraudulent use of the Deed of Assignment by EHL and two of its officers and that his judgment should be set aside. In Claim 827 Mr. Miller also sued two named partners of Eversheds, together with the firm, contending that by deploying the Deed of Assignment in the litigation they had been parties to the use of fabricated evidence to deceive the court and had wrongfully damaged his reputation and business. Both claims were plainly dependent upon showing that the Deed of Assignment had been falsified and that it had some relevant impact upon the earlier litigation.

On 16 July 2014 HHJ Hodge QC summarily dismissed Claims 826 and 827. Judge Hodge’s judgment contains a lengthy summary of the submissions that were made to him by both sides. Judge Hodge then held (at paragraph 95) that whether or not Mr. Hagood had signed the Deed of Assignment was irrelevant to PHRL’s and Mr. Miller’s liability to EHL, because the document had undoubtedly been signed by Mr. Leighton-Davies, the English Administrator of Jimi Hendrix’s estate. Judge Hodge took the view, as had Park J in the extract from the judgment to which I have referred in paragraph 12 above, that that was sufficient to pass title to the relevant performers’ rights to EHL.

Judge Hodge also went on to hold (at paragraphs 96-97) that whatever Mr. Hagood’s recollection of events had been when he signed his witness statement in October 2013, the contemporaneous documentation provided “absolutely compelling” evidence that Mr. Hagood had signed the Deed of Assignment in 2000. That documentation included correspondence between EHL and Mr. Hagood concerning the wording of the draft Deed of Assignment, together with his fee note for signing it and a payment from EHL to him for doing so. Since Mr. Hagood had unfortunately died a couple of months earlier in May 2014, Judge Hodge took the view that this issue would simply be decided on the documents that were before him at any trial, and they were clear.

Mr. Miller sought permission to appeal against the Hodge Judgment on a variety of grounds. These included the submission that Judge Hodge had given the matter inadequate time and should not have dealt with it summarily; that he had failed to have regard to Mr. Miller’s evidence concerning the Deed of Assignment; that he had been biased against Mr. Miller, in part because he had supposedly had a prior business relationship with Ms Claire Blanchard QC, who had appeared for the defendants at the hearing, and in part because Mr. Miller thought that Judge Hodge seemed to recognise one of the defendants when he was sitting in court; and that after the hearing he had refused Mr. Miller a transcript of the hearing at public expense.

Permission to appeal against the Hodge Judgment was refused by Floyd LJ on 4 December 2014. Floyd LJ’s reasons were as follows:

“The judge was entitled summarily to reject the allegation that the deed of assignment was a forgery in the light, in particular, of the compelling contemporaneous documentary evidence. It was on that allegation that the attempt to re-open the 2005 judgment of Hart J was based, as was the related action against the solicitors. The judge was justified in holding the actions to be totally without merit for the reasons he gave. The application for permission to appeal is likewise totally without merit. ”

Undaunted by the rejection of his appeal, in January this year Mr. Miller then issued two further claims (“Claims 122 and 123”). Claim 122 was against Ms. Hendrix and Mr. Gardiner (two of the original defendants to Claims 826 and 827), and Claim 123 was against Mr. Little of Eversheds and Ms Claire Blanchard QC who had acted for the defendants in relation to the hearing before Judge Hodge in July 2014. The basis for Claims 122 and 123 was that the defendants had used the Deed of Assignment to deceive the courts in the earlier litigation and in the hearing before Judge Hodge.

The defendants to those Claims sought to strike them out and a hearing for directions took place before Proudman J on 20 February 2015. The defendants sought an expedited hearing and indicated that they wished to obtain an Extended Civil Restraint Order against Mr. Miller to prevent him issuing more claims. Mr. Miller opposed an expedited hearing on the basis that he needed to obtain legal advice. He also gave an assurance to the court through counsel that he was not proposing to issue any further proceedings: see [2015] EWHC 562 (Ch) at para 11.

What Mr. Miller seems to have had in mind, however, was to adopt a different course. After the hearing before Proudman J he sought to file a second appeal with the Court of Appeal against the Hodge Judgment. That proved unsuccessful because, apparently ignorant of the fact that Mr. Miller had already had an application for permission to appeal refused, the Civil Appeals Office returned Mr. Miller’s papers on 10 March 2015 and told him that if he was alleging that the Hodge Judgment had been obtained by fraud, the appropriate remedy was to commence fresh proceedings.

It would seem that this rejection of his attempt to have a second appeal against the Hodge Judgment promoted Mr. Miller to issue his current Application, which he did by way of application notice in Claims 826 and 827 on 23 March 2015.

As I have indicated, Newey J struck out Claims 122 and 123 on 16 June 2015. In his Judgment at paras 51-58, Newey J held that those claims were unparticularised, without any foundation on the facts, fatally flawed in law, an abuse of process and barred by the principle of res judicata. In relation to that latter point, Newey J said this, at paragraph 57:

“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).”

Newey J also recorded that Claims 122 and 123 were wholly without merit, and made an Extended Civil Restraint Order (“the ECRO”) against Mr. Miller preventing Mr. Miller from issuing new applications or claims in the High Court or County Court concerning these matters without the permission of this court.

The ECRO did not, by its terms, apply to the Application, because it had already been issued at the time the ECRO was made. Newey J was also unable to deal with the Application as Mr. Miller had resisted it being listed together with the strike out application in the two other claims. Newey J did, however, order that the Application be heard on an expedited basis and listed with a time estimate of one day.

When he issued his Application in March, Mr. Miller served it together with a document entitled “Particulars of Claim”. In it, at para 2, Mr. Miller claimed that the Hodge Judgment was “based on fraudulent misrepresentation, the use of false evidence in order to deceive the Judge and the Defendants perverted the course of justice”.

The reference to “false evidence” was (again) a reference to the Deed of Assignment (para 4(c)); and the case of fraudulent misrepresentation and perverting the course of justice was based upon an allegation that EHL, its officers and lawyers knew that the Deed of Assignment had not been signed by Mr. Hagood (paras 6 and 38-40). Mr. Miller also contended that even if the Deed of Assignment was in fact executed by all the parties to it, it was not effective by reason of the fact that in 2000 Mr. Hagood was no longer entitled to sign it under New York law. Mr Miller contended that this meant that it was a fraud for the Deed of Assignment to be put forward as valid (paras 10-15 and 32-36). In reality, this was simply the same set of allegations that Hart J had been deceived that Judge Hodge had rejected, but now repackaged as an allegation that Judge Hodge had himself been deceived.

Mr. Miller further alleged that he and PHRL had a chain of title beginning with the Sue Records Agreement and that this “full chain of title and evidence was never shown to Hart J and only came fully to light after obtaining the new evidence between late 2013 and 2014.” Mr. Miller asserted that this would have been “the answer” to EHL’s claims to own the performer’s rights in issue before Hart J (paras 23-24 and 37). In a witness statement served on 25 June 2015 Mr. Miller repeated that he could demonstrate that he was legally entitled to release the Jimi Hendrix recordings in issue before Hart J and Park J because of a chain of title starting with the Sue Records Agreement (paras 2 - 4).

Mr. Miller then asserted that new evidence “obtained between late October 2013 and throughout 2014” would enable Hart J’s judgment to be set aside (paras 9-10). He also repeatedly stated that his Application had “absolutely nothing” to do with the earlier cases in which he had been involved “because the Claimant did not have access to the new evidence in the previous cases” (paras 20-23).

What, however, Mr. Miller did not do in his Application, in his “Particulars of Claim” or in his witness statement, was to identify precisely what “new evidence” he was referring to, or when and from where he obtained it. Specifically Mr. Miller did not contradict or address the point made in paragraph 57 of the Newey Judgment that no relevant new evidence had become available since HHJ Hodge QC had given his decision in July 2014.

As well as complaining that Judge Hodge had been deceived, Mr. Miller’s witness statement also complained about Judge Hodge’s conduct of the hearing. As he had done in his application to appeal, Mr. Miller alleged that Judge Hodge was not impartial and should have recused himself because of a supposed prior association with Ms Blanchard QC. Mr. Miller pointed to the fact that (together with a large number of others) Judge Hodge and Ms. Blanchard QC had both participated as trainers at an Advanced International Advocacy Course at Keeble College, Oxford for a week in August-September 2012 (paras 6 & 12). Mr. Miller also contended that Judge Hodge “…also knew the other defendants in court because when he mentioned the name Patrick Gardiner…he looked straight at him” (para 13).

Throughout his witness statement, Mr. Miller also insisted that he required eight hours to present his case properly to a judge. In that respect he invoked Article 6(1) of the ECHR together with the spirit of Lord Denning in a quotation from his judgment in Jones v NCB [1957] 2 QB 55 that appeared in his book, The Due Process of Law,

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before a Judge”

Notwithstanding Newey J’s order for expedition, after the Application had been listed to be heard on 13 July 2015, Mr. Miller made two unsuccessful applications to have the hearing adjourned until October or November on a variety of grounds, including that he required eight hours to present his case properly, that he had not had adequate time to prepare it, and that he had other unspecified commitments that would prevent him attending court. I rejected both those applications for an adjournment on paper, as I took the view that Mr. Miller had had ample time to prepare his case, and had given no credible reasons for being unable to attend on 13 July. I also indicated that if Mr. Miller could persuade me that justice and the overriding objective meant that he should have a longer hearing to argue his case, I would give him it.

In the event, I was able to pre-read the papers for a day, and Mr. Miller did attend the hearing on 13 July 2015 and made submissions to me for about 5½ hours. He also supplemented his oral submissions at the end of the day by handing me a further file of written material (entitled “Evidence Book”) that he told me he wanted to go through. I reviewed the Evidence Book after the hearing and did not consider that it raised any relevant new arguments or material.

During the hearing, and in his “Evidence Book”, Mr. Miller reiterated and expanded upon the points made in his earlier written materials and made a number of further submissions. In particular these included a detailed review of the terms of the Sue Records Agreement; a number of submissions concerning the origins of the tracks to be found on the CDs of the Stockholm Performances issued by PHRL in 2003; a submission concerning his own witness statement as to the recording of the Stockholm Performances based upon various documents dated around that time (but, notably, not the letter of 20 January 2005 referred to by the Court of Appeal in the judgment referred to at paragraph 15 above); and a number of points concerning the Deed of Assignment, including submissions to the effect that Mr. Hagood had ceased to be New York Administrator of Jimi Hendrix’s estate in 1977, long before the Deed of Assignment was executed in 2000, and that neither he nor Mr. Leighton-Davies had any authority to act in relation to the estate of Jimi Hendrix thereafter.

When I asked Mr. Miller whether he had any new documents that were not before Judge Hodge and could not, with reasonable diligence, have been placed before him, Mr. Miller referred to two letters. The first was a letter addressed to him from a firm of New York attorneys, Dickerson & Tomaselli dated 14 June 2014, expressing various views on the question of whether Mr. Hagood had been empowered to execute the Deed of Assignment. That document had in fact been placed before Judge Hodge and was recited in full in paragraph 38 of his Judgment. The second document was a further letter from the same US attorneys dated 26 February 2015 reporting upon a review of a file in New York in relation to the administration of Jimi Hendrix’s estate that apparently showed that the estate was inactive and nothing had been filed since 1996. That letter seems to me to add nothing to Mr. Miller’s arguments.

It is of course true that, as provided for by Article 6 ECHR, everyone is entitled, in the determination of his civil rights, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Lord Denning’s pithy statement of the common law is to the same effect. But these rights are not unqualified. They are subject to exceptions and limitations so as to ensure the proper administration of justice and to prevent abuse of the court system.

So, in Labrouche v Frey [2012] 1 WLR 3160, Lord Neuberger MR said, at para 22,

“It is a fundamental feature of the English civil justice system, and indeed any civilised modern justice system, that a party should be allowed to bring his application to court, and make his case out to a judge. Of course this principle is subject to some exceptions and limitations, which exist to ensure the proper administration of justice. Thus the court may refuse to entertain argument from a party who is in contempt of court, a civil restraint order can fetter the right of access in the case of a person who has used the court process to harass others, and time limits are routinely imposed for hearings. However, even where a party is in contempt or is subject to a civil restraint order, the court will ensure that he is not prevented from making an application or submissions where it would be unjust to shut him out; and time limits are imposed simply to ensure that a party is not allowed an extravagant amount of time to the detriment of other court users.”

In addition to the examples of exceptions and limitations given by Lord Neuberger MR, the courts have long exercised the common law power to control and prevent duplicative litigation and abuse of the process of the court. Those principles are well-settled and can be summarised as follows.

A party cannot raise, in subsequent proceedings between the same parties or their privies, causes of action or issues necessarily decided against him in earlier proceedings, or issues that he could reasonably and should in all the circumstances have raised. Such matters are res judicata or barred by issue estoppel: see Virgin Atlantic Airways v Zodiac Seats UK [2014] AC 160 at para 22.

It may be an abuse of process for a party to mount a collateral attack upon an earlier decision against him by a court of competent jurisdiction by seeking to re-litigate the same issue against a different party in subsequent proceedings, but that will only be the case if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re-litigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute:Secretary of State for Trade and Industry -v- Bairstow [2004] Ch 1 at para 38.

It may also be an abuse of process for a person to seek to raise in subsequent proceedings, issues which could and should have been raised in earlier proceedings even if not between the same parties or their privies: see Johnson v Gore Wood & Co [2002] 2 AC 1, referring to Henderson v Henderson (1843) 3 Hare 100. In that case, Lord Bingham stated, at page 31,

“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”

These principles are entirely in accordance with the ECHR. In Barnett v Nigel Hall Menswear [2013] EWHC 91 (QB) at 22, Eady J observed:

“A litigant's rights under Article 6, however, cannot possibly mean that he is immune from the disciplines of civil procedure, whether arising out of the CPR or under well established common law principles. A litigant is not necessarily entitled to have his claim determined at a trial come what may. My attention was drawn to the words of Arden LJ (with whom Ward and Smith LJJ agreed) in Koshy v Deg-Deutsche Investitions [2008] EWCA Civ 27 at [34]: ”

“…Even though the allegations which Mr Koshy raises are of such seriousness and importance, nonetheless the justice system is not bound to provide more than one opportunity to run these issues. That is because the courts have to strike a fair balance between the interests of Mr Koshy on the one hand and of the other parties and the general interest on the other hand. That fair balance in my judgment is struck once Mr Koshy has had one effective opportunity to put his case.”

In other words, the modern doctrine of abuse, as explained in the House of Lords in Johnson v Gore-Wood, appears to be compliant with the ECHR and, in particular, with a litigant's rights under Article 6.”

There remains, of course, the principle referred to by Newey J, that if it is shown by new evidence that a judgment has been procured by fraud, it may be set aside: see RBS v. Highland Financial Partners [2013] EWCA Civ 328 at para 106.

On this Application I have to ensure that Mr. Miller and the defendants each have a fair hearing in accordance with their Article 6 ECHR rights, and to decide whether the Defendants have clearly shown that Mr. Miller’s Application to set aside the Hodge Judgment is an abuse of process or has no real prospect of success.

As to the fair hearing, I am satisfied, especially as I had had a day in which to pre-read the papers, that Mr. Miller had more than sufficient opportunity to present all of his arguments to me. His submissions occupied the overwhelming majority of a longer than normal court day and I did not consider that it was necessary or appropriate for him to be given even more time on a second day to repeat his arguments.

As to the substance of the matter, in my judgment the Defendants are plainly correct that all of the issues raised by Mr. Miller in his Application, his evidence and in his submissions to me, are either points that he unsuccessfully relied upon in seeking permission to appeal the Hodge Judgment; or are points that have already been considered and rejected by the courts in earlier litigation, or were points that Mr. Miller could and should have raised in such litigation; or are simply irrelevant to his Application. Such matters are either res judicata or barred by issue estoppel, or it is a manifest abuse of process for him to raise them now.

I can deal with the various points raised by Mr. Miller under three broad headings.

All of the arguments that Mr. Miller now wishes to advance as to why the Deed of Assignment might have been falsified or why Mr. Hagood had no authority to execute it, were advanced before Judge Hodge and rejected by him. In particular, Judge Hodge set out the contemporaneous evidence that Mr. Hagood had executed the Deed of Assignment in paragraphs 52-64 of his Judgment and decided that such evidence was compelling. He also explained why (in similar terms to the views of Park J in the extract from his judgment to which I have referred in paragraph 12 above) it would have made no difference to the outcome of the earlier trials if Mr. Hagood had not signed the Deed of Assignment. Mr. Miller’s application for permission to appeal against the Hodge Judgment included a reiteration of all those points and was firmly rejected by Floyd LJ.

Moreover, all of the evidence upon which Mr. Miller has relied before me was available to him when he launched Claims 826 and 827, when he appeared before Judge Hodge in July 2014, and when he unsuccessfully sought to appeal the Hodge Judgment to the Court of Appeal. As I have indicated above, no new evidence has emerged since the Hodge Judgment or since Floyd LJ dismissed Mr. Miller’s application for permission to appeal in December last year. Specifically, there is nothing in the letter dated 26 February 2015 from the US attorneys that is of any significance, and in any event I cannot see why Mr. Miller could not have obtained that information from the US lawyers before the hearing in July 2014.

In my judgment Mr. Miller is barred by res judicata or issue estoppel from seeking to rerun these allegations against the same defendants in Claims 826 and 827, but simply repackaged as allegations that Judge Hodge was misled rather than Hart J. In essence Mr. Miller has simply not heeded the warning he was given as long ago as 2005 by Chadwick LJ when he dismissed his application for permission to appeal: [2005] EWCA Civ 1524,

"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."

The allegations that Judge Hodge was not impartial, did not allow Mr. Miller to present his case properly, should not have entertained a summary judgment application, and failed to allow Mr. Miller to obtain a transcript of the hearing at public expense are all points that, if valid at all, were points to raise on appeal. They do not go to support an allegation that the Hodge Judgment was obtained by fraud or deception. But all of those points were put squarely before Floyd LJ on Mr. Miller’s application for permission to appeal against the Hodge Judgment and were rejected. I do not have an appellate jurisdiction, and it is an abuse of process for Mr. Miller to ask me to overturn Judge Hodge’s decision on essentially the same grounds that Floyd LJ dismissed as being totally without merit.

Moreover, lest it be thought that I am deciding these matters on procedural grounds alone, I agree with Floyd LJ that they have no substantive merit whatsoever. Specifically, I do not consider that there is any credible basis for a suspicion of partiality on the part of Judge Hodge, still less any grounds for a finding of actual bias. I do not consider, for example, that the fact that Judge Hodge and Ms Blanchard QC, together with over 40 other judges and counsel, were once both tutors on a course organised by a third party in 2012 for the benefit of aspirant advocates, could possibly give rise even to a suspicion of bias on the part of any right-minded person.

Finally, whatever Mr. Miller might think of Judge Hodge’s conduct of the hearing or his subsequent refusal to permit Mr. Miller to have a transcript of the hearing at public expense, a fair reading of the Hodge Judgment shows that Judge Hodge did take note of Mr. Miller’s arguments and dealt with them comprehensively.

Mr. Miller’s argument to the effect that PHRL had a chain of title to an agreement that entitled it to publish the Stockholm Performances derived from the Sue Records Agreement was an argument that was open to him (or at least to his lawyer) at the hearing before Hart J in 2005. Indeed, its availability was the foundation for the negligence claim that Mr. Miller subsequently brought against Mr. Sutton. Having failed to raise the point when he could have done so, as between Mr. Miller and the parties to the original claim, including EHL, Mr. Miller was barred by the principles of res judicata or issue estoppel from seeking to raise this point.

But the point would not go anywhere in any event, because in the claim that Mr. Miller brought against Mr. Sutton, Mr. Martin QC held, and the Court of Appeal agreed, that the Sue Records Agreement did not apply to the Stockholm Performances, and that Yameta (as the assignee of the Sue Records Agreement at the relevant time) had consented to the recordings of the Stockholm Performances being made. The same can be said of the additional points that Mr. Miller sought to raise concerning the true origins of the tracks on the CDs issued by PHRL and his witness statement concerning the recording of the Stockholm Performances. Those points were expressly considered and rejected by the Court of Appeal in the case against Mr. Sutton. Whilst these were not findings in a case to which EHL and the other defendants to Claims 826 and 827 were parties, in my judgment it would plainly be an impermissible collateral attack upon the decisions of Mr. Martin QC and the Court of Appeal for Mr. Miller now to seek to re-run the same arguments again in this case.

Further, and in any event, since these points concerning the Sue Records Agreement do not have anything to do with the issues concerning the validity or authenticity of the Deed of Assignment that were considered by Judge Hodge, I cannot see what possible relevance such matters have as a basis for seeking to set aside the Hodge Judgment on this Application.

I should add that Mr. Miller’s Application should in any event not be permitted to proceed for two other reasons. The first is that it wholly fails to comply with any of the requirements for pleading a case in fraud or for supporting it by proper evidence. Even making allowance for the fact that Mr. Miller acts in person, there is simply no credible or coherent basis set out in any of the documents for an allegation of fraud against any particular defendant. There is no explanation (still less a particularised one) of how each of these defendants are said knowingly to have deceived Judge Hodge. It is not enough to say that they asserted a position with which Mr. Miller disagreed. Newey J made a similar point in paragraph 52 of the Newey Judgment and Mr. Miller has made no attempt to correct the same deficiencies in this Application.

The second point is that the form of Mr. Miller’s Application is inappropriate. It takes the form of an application notice. The correct procedure when seeking to set aside a judgment on the ground of fraud is to bring a new claim: see Singh v Reading BC [2013] EWCA Civ 909 at para 67. That is not news to Mr. Miller. As I have indicated, he had already been told as much by David Richards J on 16 January 2014. If I had thought that there was anything in Mr. Miller’s arguments, it might have been appropriate to investigate whether this defect could be remedied, but as it is, this simply amounts to a further reason why his Application should be struck out.

I therefore conclude that Mr. Miller’s Application is barred res judicata or by issue estoppel, it is an impermissible collateral attack on earlier judgments to which he was a party, and it is a clear abuse of process. I propose to strike it out.