England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JOHN MARTIN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th February 2013

The Chancellor:

1. This is an appeal by the claimant, Lawrence Miller, from the order of Mr John Martin QC, sitting as a Deputy Judge of the Chancery Division, granting summary judgment in favour of the defendants, Edmund Clive Sutton and Clive Sutton Solicitors, striking out the Claim Form and the Particulars of Claim.
2. The proceedings are for damages for negligence by Mr Sutton, who carried on practice as a solicitor in sole practice under the name Clive Sutton Solicitors. He is, in reality, the only defendant. The alleged negligence was in connection with the defence to proceedings commenced in 2004 by Experience Hendrix LLC against Purple Haze Records Limited ("Purple Haze") and Mr Miller ("the Experience Hendrix proceedings"). The Experience Hendrix proceedings were brought as a result of the release on CD by Purple Haze of what, until today's hearing, were thought by all concerned, that is, other than Mr Miller, to be a recording of two concert performances given by Jimi Hendrix at the Konserthus in Stockholm, Sweden in January 1969 ("the Stockholm performances"). Experience Hendrix alleged that the reproduction and distribution of the songs on the CD infringed the performer's property rights subsisting in the Stockholm performances pursuant to the Copyright, Designs and Patents Act 1988 ("the 1988 Act"), which had vested in Experience Hendrix by virtue of assignment from the administrators of Jimi Hendrix's estate. The claim against Mr Miller was on the ground that he indirectly owned and controlled Purple Haze and he personally arranged for the making and issuing to the public of the songs on the CD. The Experience Hendrix proceedings ended in an order for summary judgment by Hart J against Purple Haze and Mr Miller in February 2005; see [2005] EWHC 249 (Ch), [2005] EMLR 18.
3. The issue on this appeal can be expressed very shortly 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 a written agreement dated 27 July 1965 between Sue Records Inc and James Hendrix, headed "Exclusive Recording Artist Contract" ("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.

The legal context

4. The legal context for the claims and defences in the Experience Hendrix proceedings were set out in some detail by Hart J in his judgment on the summary judgment application. The following is a brief summary, so far as material to this appeal, of the relevant law largely as he described it.
5. At the time of the Stockholm performances in 1969 performers' rights were governed by the Performers' Protection Acts 1958 to 1963. Those Acts imposed criminal liability for certain unauthorised acts exploiting dramatic and music performances - essentially "bootlegging". The Acts did not confer any civil law rights on performers.
6. The Performers' Protection Acts were all repealed by Part II of the 1988 Act, which had a commencement date of 1 August 1989. The 1988 Act for the first time expressly conferred a civil right of action on performers, enabling them to prevent the unauthorised exploitation of their performances. The provisions in Part II of the 1988 Act required the performer's consent to the exploitation of his performances (as more particularly set out in sections 181 to 184). The Act also conferred civil rights of action on a person having recording rights in relation to recordings made without his consent or that of the performer (as set out in sections 185 to 188).
7. The following points should be noted in relation to the rights conferred on performers. Section 180 provided for the right to be conferred retrospectively, subject to specified limitations. Section 180(3) provided that:

"The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights."

8. The rights were conferred only in "qualifying performances", an expression defined in section 181 by reference to the provisions in section 206.
9. Section 192(2) provided that, on the death of a person entitled to performer's rights, the rights pass to such person as he may by testamentary disposition specifically direct, and, if or to the extent that there is no such direction, his personal representatives.
10. The content of the performer's rights was defined by reference to the acts which infringe. Three categories of infringing acts were specified by respectively sections 182, 183 and 184. Section 182 dealt with infringement by the direct or indirect recording of a qualifying performance or the live broadcast of a qualifying performance without the consent of the performer. Section 183 dealt with the use of a recording by a person who knew or had reason to believe that the recording was made without such consent. Section 184 dealt with business dealings in "illicit recordings" where the dealer knew or had reason to believe that the recording was an illicit recording.
11. As was made clear by section 180(4), the rights are quite separate from copyright.
12. Those provisions were substantially amended and expanded by the Copyright and Related Rights Regulations 1996 (SI 1996/2967) ("the 1996 Regulations), which were made in order to implement, among other things, Council Directive 92/100/EEC of 19 November 1992. The commencement date of the 1996 Regulations was 1 December 1996. It is sufficient for the purpose of this appeal to mention the following changes. A new section 182 was substituted in similar terms to the old section 182 but restricting its ambit to a direct recording of a qualifying performance and direct recording of a broadcast. A new section 182A provided that a performer's rights were infringed by a person who without his consent made a copy of a recording of a qualifying performance, and labelled the resulting right "to authorise or prohibit the making of such copies" a "production right". A new section 182B provided that a performer's rights were infringed by a person issuing to the public copies of a recording of a qualifying performance without the performer's consent and labelled the resulting right a "distribution right". A new section 191A declared the rights granted by sections 182A, 182B and 182C to be "property rights". A new section 191B provided that a performer's property rights were transmissible "by assignment, by testamentary disposition or by operation of law, as personal or moveable property". Section 191B(3) provided that an assignment of property rights should not be effective unless in writing signed by or on behalf of the assignor.
13. The 1996 Regulations also contained the following provisions, so far as relevant:

"26. (1) Subject to anything in regulations 28 to 36 (special transitional provisions and savings), these regulations apply to ... performances given, before or after commencement.

(2) No act done before commencement shall be regarded as an infringement of any new right, or as giving rise to any right to remuneration arising by virtue of these Regulations."

"27. (1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before 19th November 1992.

(2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right."

"30.- (1) Any new right conferred by these Regulations in relation to a qualifying performance is exercisable as from commencement by the performer or (if he has died) by the person who immediately before commencement was entitled by virtue of section 192(2) to exercise the rights conferred on the performer by Part II in relation to that performance.

(2) ..."

"31. Where before commencement-

(a)

(b) the owner or prospective owner of performers' rights in a performance has authorised a person to make a copy of a recording of the performance, any new right in relation to that copy shall vest on commencement in the person so authorised, subject to any agreement to the contrary."

The summary judgment application in the Experience Hendrix proceedings

14. Experience Hendrix made an application for summary judgment under CPR 24.2. On the hearing of that application by Hart J in January 2005, Purple Haze and Mr Miller raised several defences. For the purpose of this appeal, it is necessary to mention only those summarised in paragraph [24] of Hart J's judgment. In that paragraph, Hart J set out four factual situations. Purple Haze and Mr Miller contended that they had a real prospect of successfully establishing at trial one or more of them and that, if they were to do so, the consequence would be that Jimi Hendrix had conferred on another person the right to make a recording or a copy of a recording of the Stockholm performances and so Experience Hendrix had no title to the performer's rights. Paragraph [24], which is heavily relied upon by Mr Miller on this appeal, was as follows:

"24. The remaining arguments on behalf of the defendants are that they have a more than fanciful prospect of persuading the court at trial of one or more of the following propositions:

i) that Jimi Hendrix had in his lifetime either assigned, or agreed to assign, his performer's rights in the Stockholm Performances in such a way as to have prevented the Estate from having been the person entitled to exercise them either under the old section 192(2)(b) or under Regulation 30(1) of the 1996 Regulations ("the assignment argument");

ii) that Jimi Hendrix had in his lifetime authorised a person to make a copy of a recording of the performance so that the reproduction rights and distribution rights vested on 1st December 1996 not in the Estate but in that person ("the Regulation 31 argument");

iii) that the acts of the defendants were done pursuant to an agreement made before 19th November 1992 and therefore cannot be infringing acts ("the Regulation 27 argument");

iv) that the defendants have the benefit of a license granted by Jimi Hendrix ("the license argument").

I should add that if the Regulation 27 argument is a sufficiently good one to enable the defendants to avoid a summary judgment, I cannot myself see why it cannot be argued with equal force that the acts have been done "in pursuance of arrangements made before [1st August 1989]" and thus non-infringing by virtue of section 180(3) of the 1988 Act. I do not, however, recall this particular argument as having been made."

15. In support of those contentions, Mr Richard Miller QC leading Denise McFarland, for Purple Haze and Mr Miller, relied on the provisions of an agreement made between Yameta Co Limited ("Yameta") and Jimi Hendrix dated 1 December 1966 ("the Yameta Agreement"). The argument of Mr Richard Miller QC was, in essence, that the effect of the Yameta Agreement was that Yameta became entitled either in law or in equity to all rights appertaining to performances by Jimi Hendrix, including rights such as performers' rights, which were not known to the law at that date: 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.
16. Those arguments were rejected by Hart J, and so he concluded in paragraph [34] of his judgment that none of the arguments in paragraph [24] of his judgment had any prospect of succeeding at trial. He also found that Mr Richard Miller QC had not provided any material to controvert the allegation in the Particulars of Claim that Mr Miller owned and controlled Purple Haze and personally arranged for the making and issuing to the public of the infringing discs. For those reasons, Hart J held that Experience Hendrix was entitled to summary judgment against both Purple Haze and Mr Miller.

The present proceedings

17. Mr Miller has represented himself throughout these proceedings. They were originally commenced in the Commercial Court, and have had a rather complex history, but for the purposes of this appeal it is sufficient to say the following.
18. In his original Particulars of Claim Mr Miller alleged many instances of negligence in Mr Sutton's handling of the defence to the Experience Hendrix proceedings. Mr Sutton applied to strike out the claim or for summary judgment on it. The application came before Eder J, who ordered on 9 October 2011 that all the allegations in the Particulars of Claim be struck out, save paragraph 46, which concerned the Sue Records Agreement. He ordered that Mr Miller file and serve new Particulars of Claim setting out more fully Mr Miller's allegations in relation to the Sue Records Agreement. He also ordered that the proceedings be transferred to the Chancery Division.
19. Mr Miller produced new Particulars of Claim, dated 17 October 2011, and it is with those that we are concerned on this appeal. There were again a large number of allegations made by Mr Miller, including some which had been ordered to be struck out by Eder J. For the purposes of this appeal, it is sufficient to highlight the following allegations:

"2. the Claimant (Lawrence Miller) set up and ran a small UK Record Company called "Purple Haze Records Ltd" Registration number 4320394. The Company was set up to release recordings (CD's) of the late Jimi Hendrix under Licenses provided by John Hillman. One of those licenses was for a CD called the "Stockholm Concert" catalogue number HAZE003.

....

8. Chain of Title to the Rights History of the music of the late Jimi Hendrix:

(a) On 27 July 1966 Jimi Hendrix signed an "Exclusive Recording Artist's Contract with Sue Records Inc an American Company

(h) On 21 October 2003, John Hillman licensed the Claimant and Purple Haze Records Limited for the Stockholm Concert CD HAZE003.

....

11. On 4 December 2003, shortly after Mr Hillman had provided the Claimant with Licence to release the Stockholm Concert CD and 7 months prior to any claim being made against the Claimant and Purple Haze Records Limited, Mr Hillman wrote to the Defendant about the Yameta agreement being a contract employment, which it was not, it was a management agreement, saying, "My latest information is that Universal MCA are holding $50 million back from the price of $70 million that they were prepared to pay in 1993 to Experience Hendrix LLC" It was this vast amount of money that Mr Hillman and the Defendant had their eyes on from which the Defendant would earn his 5% cut.

12. If the Defendant had been a lawyer that practiced in the area of Intellectual Property Rights, he would have seen immediately and understood the importance of the Sue Records Inc "Exclusive Recording Artist's Contract" and provided that to the defence Counsel, Mr Richard Miller QC. The Defendant has admitted he had this document in his Second Witness Statement dated 26 September 2009, but did not understand the relevance of it. (See section 5 and paragraphs 5,6,7 & 8 in bundle) And, the Sue Records Inc, "Exclusive Recording Artist's Contract"

....

30. The Sue Records Inc "Exclusive Recording Artist's Contract" is exactly what the late Honourable Mr Justice Hart is talking about at his paragraph 24 of the Judgment. The Exclusive Recording Artists Contract covers all the points (i), (ii), (iii), (iv) that are made by the late Honourable Mr Justice Hart.

....

42. Had the Defendant recognised the importance of the Sue Records Inc, "Exclusive Recording Artist's Contract" dated 27 July 1965, the Yameta Company Limited/Warner Bros - Seven Arts Records Inc Agreement dated 24 June 1968 and obtained the Affidavit of Mr Reed Wasson the outcome of the judgment of the late Honourable Mr Justice Hart would have been very different."

20. Mr Sutton again issued an application to strike out the Particulars of Claim or for summary judgment against Mr Miller.

The judgment of the Deputy Judge

21. The application came before the Deputy Judge on 2 March 2012. He handed down his judgment on 4 April 2012, when he made an order for summary judgment against Mr Miller in relation to all the allegations in the Particulars of Claim concerning the Sue Records Agreement and for all other allegations to be struck out.
22. The Deputy Judge accepted that Mr Miller has a reasonable prospect of establishing that the benefit of the Sue Records Agreement was assigned to Yameta and that Purple Haze had acquired such rights as had Yameta itself to produce and distribute recordings of the Stockholm performances. He held, however, that Mr Miller does not have a reasonable prospect of successfully establishing that the record of the Stockholm performances were recordings to which the Sue Records Agreement applied.
23. The Deputy Judge refused permission to appeal, but, on an oral renewal in the Court of Appeal, Arden LJ granted permission to appeal the order of the Deputy Judge "limited to the single issue of the effect of the Sue Records Agreement in the events which happened".

The Sue Records Agreement

24. As I have already mentioned, the Sue Records Agreement is headed "Exclusive Recording Artist Contract", and was made on 27 July 1965. Sue Records Inc is defined as "Company", and Jimi Hendrix is defined as "Artist". The following provisions are relevant:

"1. Artist hereby grants and Company engages Artist's exclusive personal services in connection with the production of phonograph records.

2. The term of this agreement shall be for a period of two (2) years from the date hereof; during which time the Artist agrees to record under Company's supervision and Company agrees to record a minimum of the equivalent of eight (8) 7 inch 45 rpm (single faced) commercially and technically satisfactory record sides. The Artist agrees to record such selections at such times and places (within the city where the principal office of Company is located) during the term hereof, as Company may designate and under Company's supervision. Company shall have the right in its sole discretion to call upon Artist to record additional master records up to the equivalent of 25 double faced 7 inch 45 rpm records during each calendar year period; and a pro rated number for any lesser period. The Artist agrees to record with such background and arrangements, as Company may designate. Artist agrees to re-record each selection to be made hereunder until a commercially and technically satisfactory "master" record thereof shall have been obtained. In the event that during the term of this agreement (including any exercised option periods) Company records more than the minimum number of record sides to be recorded in such period as provided for above, then such sides as may be recorded in excess of said minimum, may be applied, at Company's option, if Artist consents, in diminution of the minimum number of record sided required to be recorded during any subsequent period.

3. The Artist agrees that during term of this agreement, he will not perform with or without credit, individually, as a leader, as a member of a group, as an instrumentalist, vocalist or narrator or otherwise for any other person, firm or corporation for purpose of making phonograph records. The Artist agrees not to perform any selections which he has performed hereunder for any other person, firm or corporation for the purpose of making phonograph records for a period of five (5) years from the final expiration date of this agreement. If during the term of this agreement (including any exercised option period) plus five (5) years thereafter Artist performs any composition for the purpose of making any recording for any medium other than phonograph records he will do so only pursuant to a written contract containing an express provision that neither such performance nor any recording thereof will be used directly or indirectly for the purpose of making phonograph records or any other device for home use....

7. All performances recorded hereunder, all recordings released hereunder and all derivatives made therefrom, shall be entirely the property of the Company to be used by Company in any manner it sees fit. Not in limitation of the foregoing nor of any rights granted to Company herein, but in addition thereto and without further payment other than as herein provided, the Artist grants to Company:

(a) The right to manufacture, advertise, sell, lease or otherwise use or dispose of in any or all fields of use throughout the world, or to refrain therefrom throughout the world or in any part thereof, phonograph records (in any speed, size or format whatsoever, and coupled with any other records whatsoever) embodying any of the performances to be recorded hereunder, upon such terms and conditions as Company may approve; and all such rights may be exercised by firms owned or controlled by Company or by unrelated third parties;

....

(c) The sole and exclusive right in, title to, and ownership of all performances recorded hereunder, all masters, matrices, records or other reproductions of the performances embodied in any method, electronic, magnetic, mechanical or other, now or hereafter known, obtained from performances made hereunder.

(d) The sole and exclusive right, if company so desires, to publicly perform the records and to permit the public performance thereof, by means of radio and television broadcast or otherwise;"

25. Clause 8 contained provisions for payment by the Company for the Artist's services. Clause 11 gave to the Company options to extend the period of the Agreement for successive periods of two years and one year. The Deputy Judge concluded that the first of the two options had been exercised, and that is the basis on which this appeal has proceeded. Clause 15 provided that the Agreement was to be construed according to the law of Sue Records Inc's principal place of business. The Deputy Judge took that to be the State of New York. There is no evidence that the law of that State is different from the law of England and Wales on any relevant issue of construction of the Agreement.

The appeal

26. The Deputy Judge accepted that, if the recording of the Stockholm performances was governed by the Sue Records Agreement, then the rights under that Agreement will have taken priority over Jimi Hendrix's performer's rights and so would have provided a defence to the Experience Hendrix proceedings on one or more of the grounds identified by Hart J in paragraph [24] of his judgment. As I have said, the Deputy Judge held that Mr Miller does not have a reasonable prospect of successfully establishing that Purple Haze's CD is governed by the Sue Records Agreement. It is the correctness of that conclusion of the Deputy Judge which is at the heart of this appeal.
27. The Deputy Judge's reasoning on this point was as follows:

"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 - as Mr Edwards acknowledged - 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 Konserthus 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 by 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."

28. As I have said, Mr Miller was refused permission to appeal by the Deputy Judge, but he was successful in part in his renewed application for permission to appeal at an oral hearing before Arden LJ. He produced a lengthy skeleton argument for that hearing. His position at that stage, so far as appears from the documents before us, may be summarised as follows. His view was the Deputy Judge's reasoning in paragraphs [22] to [25] "were and are completely irrelevant to the defence of the [Experience Hendrix proceedings]". Mr Miller quoted in his skeleton argument the following statement by leading counsel for Experience Hendrix in the Experience Hendrix proceedings, Mr Richard Arnold QC:

"It is wholly immaterial to our (Experience Hendrix LLC) claim who made the original recordings of the Stockholm performances. It simply does not matter. They could have been made by anyone. They could have been a member of the audience. It really does not matter, so far as our claim is concerned." [emphasis in original]

29. Secondly, Mr Miller said in that skeleton argument that he "was not there in 1969 and would have no way of knowing what happened at that time".
30. Thirdly, Mr Miller said the following in that skeleton argument with regard to his witness statement of 20 January 2005, which was referred to by the Deputy Judge in his judgment,

"The Statement dated 20 January 2005 that Mr John Martin QC refers to is not evidence. The Claimant had a conversation with someone he did not know, had never met, and he spoke to for a few minutes to set up a meeting, is NOT factual or supported with evidence. The Court sends out a rule that reads 'Witness Statements and Affidavits must confine themselves to evidence of fact. To the extent that they contain argument, opinion and the like, they will be treated as inadmissible' [emphasis in original]."

31. I should amplify that Mr Miller told Arden LJ that the core explanation in that witness statement as to the origin of the recording was, in his words, "made up or concocted by Mr Sutton and [was] not based on any instructions given by Mr Miller", and that Mr Miller signed the witness statement without ever having read it. It is not necessary to describe the circumstances in which, according to Mr Miller, he signed the witness statement without reading it.
32. Fourthly, it was Mr Miller's position that the Sue Records Agreement, as an exclusive recording contract, applied to every recorded performance by Jimi Hendrix during the currency of the Agreement, whether or not specifically authorised or required pursuant to the Agreement. In other words, it was an all-embracing agreement that applied to every recorded performance by Jimi Hendrix. At the hearing before Arden LJ, Mr Miller said as follows:

"Swedish Television didn't record it. Swedish radio also didn't record it. What Swedish Radio had done on that day was interviewed Jimi Hendrix. The recording, I believe, from what I have been told since, was handed by Jimi Hendrix to Alexis Korner, who also had a band. They played together, and I believe the tape came from that. I don't have the exact knowledge of where the material came from, so I can't be more specific than that, but what I can say is that Mr John Martin QC was only allowed to hear one part of the claim."

33. Since the hearing before Arden LJ, and her grant of permission to appeal, Mr Miller has produced a further witness statement. In general, the tenor of the further witness statement is that the material relied upon by Mr Sutton is all speculation. Mr Miller asserts that neither Swedish television nor Swedish radio ever recorded the Stockholm performances, and that Lars-Olof Helen was not involved and would not have known where the recording came from. He asserts that he never accepted the accuracy of the letter from Damian Korner. His essential point is made in paragraph 16 of his latest witness statement as follows:

"The point is the Defendant is unable to show a single shred of evidence to support the fact that the CD HAZE003 was not produced under the terms of the Sue Records Agreement."

34. Accordingly, up to this point, that is to say the oral hearing before us today, at which Mr Miller has again represented himself, his position may be summarised as follows. Firstly, the Sue Records Agreement was an exclusive recording Agreement catching everything recorded by Jimi Hendrix during the currency of the Agreement. Secondly, it would therefore have satisfied one or more of the grounds in paragraph [24] of Hart J's judgment because it was entered into before the commencement of Part II of 1988 Act. Thirdly, it is for those representing Mr Sutton to show that the recording of the Stockholm performances did not fall within the Sue Records Agreement, and they cannot do so since at best what they suggest as to the provenance of that recording is mere speculation. Fourthly, if, therefore, Hart J had been referred to the Sue Records Agreement, it would have resulted in a refusal of summary judgment and indeed a good defence.
35. That line of argument is doomed to failure. By the Sue Records Agreement Jimi Hendrix granted Sue Records exclusivity in respect of his personal services in connection with the production of phonograph records. It contained an agreement by Jimi Hendrix to record the equivalent of a specified minimum number of record sides. It prevented him from performing, for the purpose of making phonograph records, for any person other than Sue Records, and it imposed restrictions on his right to perform for the purpose of making any recording in any medium other than phonograph records. Clause 7 of the Sue Records Agreement conferred rights on Sue Records in respect of performances "recorded hereunder". On the basis, which was the basis of the proceedings before Hart J, that the Stockholm performances which were recorded were live performances, then on the face of it there is no evidence at all that they were given "in connection with the production of phonograph records" in order to satisfy Jimi Hendrix's obligation to record the equivalent of the specified minimum number of record sides, or "for the purpose of making phonograph records", or "for the purpose of making any recording for any medium other than phonograph records".
36. Furthermore, the reasoning of the Deputy Judge on the ambit of the Sue Records Agreement seems to me to be obviously correct. As he said, on the face of it the Sue Records Agreement does not apply to live performances but to studio recordings. There was no evidence before the Deputy Judge that the recording of the Stockholm performances, if that was what was sold on Purple Haze's CD, were agreed by Yameta and Purple Haze to be treated as one of the minimum recordings specified in the Sue Records Agreement. As to what was said by Richard Arnold QC in the hearing before Hart J, what he observed was plainly correct. At that stage, only the Yameta Agreement was then in issue, and not the Sue Records Agreement.
37. Further, the burden is on Mr Miller to show that he has a real prospect of success in relation to the claim against Mr Sutton and not the other way round. Insofar as there is any difficulty or doubt about the facts, it is for Mr Miller to show that he has a real prospect of succeeding at the trial in establishing those facts which are essential to establishing his cause of action.
38. In this court Mr Miller has advanced a quite different case. This was that the songs on Purple Haze's CD were not taken from any recording of the live Stockholm performances. They were, he now says, studio recordings produced by a Chas Chandler, who was employed by Yameta at a time when Yameta had the benefit of the Sue Records Agreement. Mr Miller asserts that this is not a new point that is raised by him, and that there are references to be found in various documents to which he drew our attention.
39. It seems to me quite clear, however, that this line of argument has never been advanced clearly or articulated clearly before today. It does not appear it in any of Mr Miller's witness statements. It is contrary to what he said in his Particulars of Claim. It is, moreover, inconsistent with such of the evidence as is before his court and was before the Deputy Judge. So far as the Particulars of Claim are concerned, I have referred specifically to what he has said in paragraphs 2 and 8 of the Particulars of Claim dated 17 October 2011. It is to be noted that those Particulars of Claim refer to the licence agreement which was granted by Mr Hillman to Purple Haze on 21 October 2003. Paragraph 1 of that agreement reads as follows:

"1. The Licensor believes he holds and is asserting a claim to various Copyrights in all music and lyrics composed and all performances of the late Jimi Hendrix and is desirous of licensing the Licensee to distribute recordings made of the performance by Jimi Hendrix of the 1969 Stockholm concert, and the publication of the same on all sound recording media as set out in the first schedule hereto."

The first schedule contains the licence, paragraph 1 of which is as follows:

"1. The right for the Licensee to manufacture publish or distribute sound recordings in all or any recorded media of the 1969 Stockholm concert."

40. Again, Mr Miller's most recent version of events in his oral submissions to us today is, of course, inconsistent with his witness statement of 20 January 2005, and to which the Deputy Judge referred to in his judgment. As I have said, Mr Miller seeks to distance himself from the contents of that witness statement by asserting and emphasising that he did not read it before it was signed and that it was not based on any instructions that he gave to Mr Sutton. That, however, is inconsistent with two pieces of evidence that are before this court. The first is a letter of 17 January 2005 written by Mr Sutton to counsel then representing Purple Haze and Mr Miller, in which Mr Sutton said as follows:

"Firstly, whether it is of assistance to Mr Lawrence Miller to sign a statement in support of the facts in the e-mail which has passed to you regarding the background to the Stockholm Concert. He has written to me confirming his understanding that this could not be a completely unauthorised recording made by someone in the audience, but is a copy of a recording made from the authorised sound system, although it is not possible to go further than that."

Furthermore, in a letter dated 20 January 2005 from Mr Miller to Mr Sutton, that is to say on the same day as the witness statement was signed by him, he said among other things as follows:

"1. Extremely important is Patrick Gardiner is talking about the Stockholm concert, recording coming from [Swedish Television]. This statement is not true. The recording comes initially from [Swedish Radio] and then from a vinyl album that was put out at that time."

"4. This is important, if you remember, Denise MacFarland said at one of the meetings it is for Experience Hendrix LLC to prove where the Stockholm concert came from."

41. Furthermore, Mr Miller's current explanation is also inconsistent with what Mr Miller told Arden LJ in the passage to which I have already referred and on the basis of which she granted permission to appeal. So far as concerns that statement to Arden LJ, there is in Mr Miller's bundle prepared for this appeal a letter of 31 March 2003, in which Damian Korner said as follows:

"To Whom it May Concern,

This is to confirm that the W" tape listed in the Alexis Korner tape list as AKE296 is the desk mix of Jimi Hendrix's 2 concerts at the Konserthus, Stockholm Sweden, January 9th 1969.

The tape was given to my father by Jimi at our home, 116a Queensway, London W2 6LS, on one of his many visits to our home in 1969. The only reason that it has taken so long for this tape to surface is that my parents left Queensway in 1973 and moved all his personal tapes up to their new permanent home in Wales. When my father died in 1984, the only tapes that were looked at for commercial exploitation were tapes featuring my father which were held by my father's management company. However, a few years ago my mother asked me if I would be prepared to catalogue this personal tape collection and I found this tape in with lots of other rare items.

I hope that this clarifies the legacy of this tape."

42. As I have said, Mr Miller drew our attention to various references in some of the documents to Mr Chas Chandler, but, as I have said, that seems to me to take the matter no further in the light of the documents to which I have referred, in particular the clear statement in the licence itself signed by Mr Hillman forming part of a chain of title on which Purple Haze and Mr Miller rely, which made it clear that, so far as Mr Hillman was concerned, the recordings were recordings made of the Stockholm performances. Mr Miller, seeking to deal with that point, has referred to the ill health of Mr Hillman, and says that he had severe amnesia. But the court can only rely on the documents which are before it. As I have also said, Mr Miller's case, as presently articulated, is one which has only been presented orally in this court and is not set out in any witness statement of any kind. It must also be borne in mind that what we are hearing today is an appeal from the judgment of the Deputy Judge on the basis of the material that was before him, and on the basis of the arguments advanced before him. I would add, as has been clear from some of the material that I have cited, that Mr Miller has on numerous occasions in the course of these proceedings said that he does not know what happened at the Stockholm concert.

Conclusion

43. For all of those reasons I would dismiss this appeal.

Lord Justice Pitchford:

44. I agree. 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.

Lord Justice Sullivan:

45. I agree with both judgments.

Order: Appeal dismissed