England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
(Mr Justice Jacob)

		Royal Courts of Justice Strand London WC2 Thursday 24th January, 2002

1. LORD JUSTICE ALDOUS: This is an application by Mr Trim for permission to appeal out of time a decision of Jacob J of 12th June 1996. By his order the judge awarded an injunction to Perfect Songs Ltd restraining Mr Trim from infringing Perfect Songs' copyright in the lyrics of the song called "Dreams". He also granted an injunction restraining Mr Trim from infringing copyright in the music (excluding the lyrics) of that song. The order also required Mr Trim to deliver up all copies of recordings embodying any reproduction of the whole or the substantial part of the lyrics or the music of the song.
2. This application is brought on the basis that Mr Trim now says that he has a real prospect of success on a number of matters to which I shall have to come, and because he has fresh evidence, namely the master tape of the original recording of Dreams, which was not available to him at the trial. Mr Trim seeks leave to adduce that evidence, and seeks a stay of execution of the order of the judge pending the outcome of the appeal.
3. The case that came before the judge involved the disputed ownership of various copyrights in the song Dreams. Gabrielle, who is the first defendant, named Louisa Gabriella Bobb, is now a well-known performer. She recorded the song Dreams in November 1999. She also wrote the lyrics. In 1993 she brought an action for an injunction against Mr Trim in respect of his alleged breaches of her rights in her recorded performance of Dreams. In response Mr Trim brought an action for an injunction by way of counterclaim against Gabrielle and Perfect Songs, to whom she had assigned her copyright in the lyrics on 1st June 1993. His claim was for breaches of what he claimed to be his copyright in the lyrics of Dreams, and for an injunction against a company called Zomba Music Publishers Ltd in respect of what he claimed to be his copyright in the music of Dreams. The other parties to the action were Go! Discs Ltd, who were the record company who commercially released the song Dreams, against whom Mr Trim also sought an injunction; and also Mr Laws was joined as a third party to the counterclaim. He claimed to be the author of the music and he had assigned his rights in the music to Zomba.
4. Mr Trim's case was that he had written the music to Dreams in early 1991 and that Gabrielle had assigned to him her copyright in the lyrics of Dreams during a meeting between Mr Trim, Gabrielle and her then manager, Mr Morgan, in a motor car in Shepherd's Bush.
5. The judge rejected both of those contentions. In respect of the lyrics he found that, whilst a conversation may have taken place as alleged by Mr Trim, no concluded agreement was reached. The copyright in the lyrics remained therefore with Gabrielle until she assigned it to Perfect Songs in June 1993.
6. In respect of the ownership of the copyright in the music, rather more detailed findings were made by the judge. Mr Trim claimed to have composed the music. In support of his contention he sought to rely on the written statement of a Mr Palmer of Jet Star Phonographics Ltd, to whom he claimed to have played the music in early 1991. Mr Palmer did not attend trial and the judge refused to allow the statement to be put in evidence, holding that it would be valueless without the opportunity of cross-examination.
7. The judge rejected in robust terms Mr Trim's evidence of how he composed the music. He said this, at page 19 of the transcript:

"I heard very explicit evidence from Mr Trim and Mr Kokis (PK) that Mr Trim, or Mr Trim and/or Mr Kokis, had composed the music in early 1991. I think that was nothing short of blatant perjury.

Mr Kokis gave evidence. In his evidence-in-chief, when Mr Trim was asking him how he had come to compose the music, he stopped. His head sagged in the witness box and he did not move. I had to rise for five minutes. I consider he was near to choking on the lie he was about to tell.

Mr Kokis had an interest in the case, as he accepted under cross-examination, even though Mr Trim is now claiming to be the sole composer - something different from that which he said in his affidavit at the interlocutory stage. There is apparently some arrangement whereby Mr Trim will give him a share of the proceeds, but not as much as 50-50%.

Mr Kokis was wholly unable to explain how Mr Trim could have given the instructions to compose the music. He seemed not to know the names of the various kinds of track, or sounds. He put forward, shortly before trial, although they have been pressed for a long time, two disks which were originally put forward as the original disks. Examination of the disks by Mr Oxendale - very shortly before trial, because the disks were only provided very shortly before trial, indeed, one of them was provided during the trial at the very beginning - showed that the disks had been made on a machine which did not even exist in 1991, an Akai S1000. Both Mr Kokis and Mr Laws did have an Akai S900 in 1991, but the disk which was produced not only could not be played on an Akai S900, but was not simply a reproduction of something that could have been played on an S900 but adapted for an S1000. It had been broken up into two programs, something which an S1000 could play, but which an S900 cannot. No explanation of how that happened was offered, or could make sense except by way of some sort of fabrication for this case.

Furthermore, Mr Laws' disks and the two disks produced by Mr Kokis, had on them either a group track or vestiges of a group track - depending on which of the two. Mr Laws had a group track. The first disk produced had vestiges of a group track. The second one had it all.

When this first emerged Mr Kokis, in the presence of others, as he accepted under cross-examination, said he never used group tracks. When asked to explain how the disk he produced had a group track, or the vestige of a group track. he suggested that maybe he had taken a disk from Tim Laws during the course of the recording process, Mr Laws having worked on it, and that was how Mr Laws' group track had got on to it. But that is not an explanation which makes sense at all.

Mr Laws explained that use of a group track was for composing, for recording and marking various tracks that he was using. That would have been wholly unnecessary if he had simply started with a complete record.

Mr Laws also gave some evidence to the effect that he had at one point played a guitar, as opposed to taking the section from the Tracy Chapman album `Fast Car'. That is to be found on the multi-track tape. There is no suggestion that either Mr Trim or Mr Kokis can play the guitar, whereas Mr Laws has been playing it since he was five years old.

Mr Bradbury suggested there was something wrong with Mr Laws' explanation of how he had composed the music. The principal complaint was that the piano appears to be track 1. That all came to bits when Mr Laws was recalled to explain that in fact the way he had done it involved the first six or eight tracks being put through together.

The fact is that the whole story about Mr Kokis and Mr Trim writing the music in early 1991 is fiction, and a deliberate fiction."

8. The judge found that the music to Dreams had been composed by Mr Laws in the middle of 1991. He also found that Mr Laws made the arrangements for the recording of Dreams in November 1991 at his studio, and as such was the owner of the copyright to the sound recording pursuant to section 9 of the 1988 Act.
9. There were two principal releases of Dreams. The first on Mr Trim's Victim Records label. The judge held that this was intended to be a limited "white label" promotional pressing. The other release was by Go! Discs. However, Mr Trim continued to press copies of Dreams until he was restrained by interim injunction in 1993. Mr Trim had permission to press up to 1,000 copies of Dreams; by the time of the interim injunction he had pressed in the order of 16,000.
10. The trial progressed without the benefit of the master tape of the original recording of Dreams being before the court. Mr Trim says that he now has the tape in his possession. The disappearance of tapes from Mr Laws' studio in November 1991 was itself a matter of dispute at the trial. The judge referred to this in his judgment. He said this:

"The next event is also in controversy. It relates to Mr Trim taking DATs for `Dreams' and the multi-track, which is now in evidence (a large tape) from Mr Laws' studio. According to Mr Trim he was getting worried about the fact that Tim Laws was not giving him studio time. He had telephoned him on a number of occasions. Mr Laws was non-committal and indicated that he was too busy. According to Mr Trim, he invited PK to join him on an expedition to discuss the time question. According to PK, Mr Trim did not tell PK why they were going to the Re-mix Rooms until they were on the way there, when he was told they were going to collect the tapes. There is a conflict between Mr Trim's version and PK's version at this stage. Mr Trim saying basically that he was going there to discuss whether he would get time, PK saying the expedition was to collect the tapes.

The two of them arrived in the evening. According to Mr Laws, Mr Trim barged in unannounced. That may have been the impression given, although others have said that there was a ringing of a bell and a knock. According to Mr Laws, after some discussion Mr Trim became intimidating. Mr Laws feared either for himself or his equipment. According to Mr Laws, Mr Trim just took the tapes.

According to Mr Trim's witness statement, the whole matter passed off completely peaceably. Mr Laws simply handed over the tapes when asked.

I reject the latter version of events. It was not supported by Mr Laws, by Mr Curran, who came to give evidence, or, indeed, PK. Mr Trim came to take the tapes. He took them contrary to Mr Laws' wishes. Mr Laws told me, and I believe, that he considered calling the police, but did not do so. He was shocked at the time."

11. The judgment does not go on to deal with the subsequent location of the tapes.
12. A statement dated 10th November 2001 has been submitted in support of Mr Trim's application to introduce fresh evidence by his cousin, Mr Braithwaite. In this statement Mr Braithwaite says that Mr Trim gave him, amongst other things, the master tape for safekeeping in May 1992. In January 1993, when these proceedings commenced, Mr Trim had asked Mr Braithwaite for the tape, but he was unable to find it. However, when he subsequently came to move house in January 2000 the tape came to light whilst unpacking boxes in November 2000.
13. The label on the tape states that the "Producer" of the recording of Dreams made on 8th November was "Tim Lamb, Victor Trim and Peekay" and against "Source" are written the words "For Trim Productions". Trim Productions was of course the trading name of Mr Trim. Mr Trim says that the handwriting on the label on the tape is that of Mr Laws and he asked me to compare it with a letter written by Mr Laws of 4th December 1991.
14. The proposed grounds of appeal fall into two categories. The first category relates to the new evidence. The material item is the new evidence to which I have referred, which is said to be the master tape. That it is said supports the case of Mr Trim that he was the owner of the copyright and discredits the evidence of Mr Laws.
15. Second, it is said that the order made by the judge made no provision for the ownership of the copyright in the original sound recording.
16. Third, it is said that the order made by the judge does not deal with the relief which would be appropriate to such a finding.
17. Fourth, it is said that Gabrielle and Mr Laws misled the court at trial. Mr Trim says that there is evidence that they did that. He referred to a number of documents, the evidence in Mr Carl Palmer's witness statements, certain invoices. He adds to that the master tape to which I have referred.
18. I come now to the application for permission to appeal. It is brought, even allowing for the fact that it would have been brought under the old Order 59, almost five and a half years out of time. The only new piece of evidence is the master tape of the original recording. I need to consider that separately.
19. I turn first to the matters that Mr Trim would seek to argue attacking the judgment. He puts forward a number of grounds. At the heart of them is the fact that his legal aid was not available to him at the hearing. He therefore arrived before the judge with no legal representation. He was given, I think, one day's adjournment to prepare. The judge refused an extension of time for him to seek to obtain restoration of his legal aid and legal representation. He also attacks the judgment on a number of matters to which I have shortly referred.
20. No explanation is given in the documents before me as to why an appeal was not brought earlier in respect of those matters of which complaint is now sought to be made. The allegations which are sought to be raised, attacking the evidence of Gabrielle and Mr Laws, could have been raised shortly after the judgment was given, as could the ground of appeal on the basis that he had no legal aid.
21. I say there was no explanation in the documents. Mr Trim had the help of a McKenzie Friend who addressed me eloquently. He told me that Mr Trim's life had been ripped apart at about this time. His house had been repossessed, and he had no legal advice and nowhere to turn for legal advice. He submitted that there was a real injustice here that needed to be put right and therefore permission to appeal should be given.
22. That cannot in my view be an adequate explanation for five and a half years' delay. Justice of course comes into it, but there has been five and a half years' delay and the events in dispute took place in 1991. When considering justice one has to look at it from both sides. There has to be finality to litigation. The purpose of the rules providing for time limits in which to apply for permission to appeal is to enable litigation to be resolved in a reasonable period of time. The explanation given is in my view not sufficient to excuse a five-and-a-half-year delay.
23. If I did extend time to enable these points to be raised five and a half years late, that would be likely to cause severe injustice to the defendants. Most of the evidence depends upon recollection. The matter is now over 10 years old, and in my view it would not be right to extend time for Mr Trim to seek to argue those points in this court.
24. I come next to the master tape. It is quite clear that Mr Trim has had this in his possession for 13 months prior to making the application. That of course has added to the delay before he comes to this court for permission to introduce it. The evidence, I accept, could have played a material part in the case. However, it was only a brick in the wall. It would not have been conclusive. The judge still would have had to have analysed the evidence and decided who he believed.
25. This is case here where there has been delay once the evidence came into the hands of Mr Trim of over a year. The explanation given by Mr Braithwaite is not satisfactory. It was in his loft all the time. He does not say whether he looked in the loft. He does not give an explanation which is sufficient to excuse the delay. Despite the fact that the formal requirements of Ladd v Marshall [1954] 1 WLR 1489 are no longer sacrosanct, I do not believe that there would be a chance of introducing this fresh evidence before this court, in view of the absence of an adequate explanation and the continuing delay in doing so.
26. This is a case where five and a half years' delay cannot be excused when the matters in issue arose over 10 years ago. It would be a severe injustice to allow the matter to be reopened. This is an application which I therefore refuse.
ORDER: Applications for permission to appeal, an extension of time, permission to rely on further evidence and a stay of execution refused. (Order not part of approved judgment) ____________________