England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th July 2004

Mr Justice Lewison:

Introduction

1. Mark Taylor is a talented music producer and song writer. He has produced songs for world famous artistes, including Cher, Enrique Iglesias, Rod Stewart, Lionel Richie, Tina Turner and a host of other household names, known even to judges. In 1995 he entered into two agreements with Rive Droite Music Ltd ("RDM"). The first, which was oral, was a producer's agreement. The second, which was written, was a publishing agreement. The publishing agreement was renewed twice, latterly in 1998. At the end of November 2000 Mr Taylor stopped working for RDM. Since then he has worked for Brian Rawling Productions Ltd ("BRP"). That is a company principally owned by Mr Brian Rawling, but in which Mr Taylor also has a shareholding.
2. The main focus of the dispute between the parties is whether Mr Taylor was entitled to stop working for RDM in the circumstances in which he did.
3. One of the striking features of the case is the sharp differences in the evidence of the principal participants. The differences are such that it is difficult to ascribe them simply to differences in recollection. M. Dreux-Leblanc (RDM's principal witness) gave his evidence in English, although his mother tongue is French. His English was by no means perfect, and I hope I have made full allowance for that in evaluating his evidence. M. Colas (another of RDM's witnesses) gave his evidence in French through an interpreter; but the interpretation during the morning session left much to be desired. Again, I hope that I have made full allowance for this when evaluating his evidence. Choosing between the witnesses is a very difficult task. That being so, I think that the best way of approaching the case is to tell the outline of the story, largely from the contemporaneous documents and the uncontroversial oral evidence; before coming to the contentious parts. I have dealt with some issues out of chronological order because, at the risk of some repetition, it makes for more intelligible reading. Despite my structuring of this judgment under different heads in relation to the contentious factual issues, I should emphasise that the conclusions I have reached about the reliability of witnesses result from a consideration of their evidence in the round. A finding on one point later in the chronology has often helped me in choosing between the witnesses on another point earlier in time.
4. Mr Ian Mill QC and Ms Jane Mulcahy appeared on behalf of Mr Taylor; and Mr Andrew Sutcliffe QC and Mr Peter Ratcliffe appeared on behalf of RDM. The case was argued on both sides with exceptional skill. Both legal teams produced comprehensive and compelling analyses of the evidence. The problem for me is that they result in irreconcilable conclusions on almost every question of fact.

The main issues

5. There are many issues between the parties. I was helpfully provided with an agreed list of all of them. The main ones are as follows:

i) Whether the latest publishing agreement was for a term of 2 years or 3, either on its true construction, or following rectification;

ii) Whether, under the terms of the producer agreement, Mr Taylor was contractually obliged to work exclusively for RDM;

iii) What, if any, terms are to be implied into the producer agreement;

iv) Whether Mr Taylor diverted projects, which should have come to RDM, to BRP;

v) Whether Mr Taylor has infringed RDM's copyright in two songs originally written by Mr Paul Barry and Mr Enrique Iglesias; and ultimately released to the public on an album by Mr Iglesias, entitled "Escape";

vi) Whether RDM was in breach of the publishing contract in failing to exploit a song, partly written by Mr Taylor, called "Follow Your Heart";

vii) Whether RDM has accounted to Mr Taylor on the correct basis, especially its application of the so-called "cover clause" in the publishing agreement; and its deductions in applying the producer agreement.

6. I have not taken the issues in the order in which they appear in the agreed list; but I have summarised my conclusions on each issue at the end of this judgment in the order in which they appear on that list. I am asked to decide questions of liability only.

Un peu d'histoire

7. Mr Taylor has worked in the music industry since he left school. He began as a sound engineer, and then progressed to being a producer of records. He is also a writer, although his writing is in collaboration with others.
8. XIII Bis is a group of French companies set up by M. Laurent Dreux-Leblanc. The group has subsidiaries in many parts of the world. Its core business is the publishing, production, recording and distribution of music. Its head office is in Paris, where M. Dreux-Leblanc lives; and its central administration is conducted from there. In 1992 M. Dreux-Leblanc decided that it would be a good idea to establish a presence in England. RDM was established for that purpose. Mr Brian Rawling was recruited to head up RDM in England; but he reported to M. Dreux-Leblanc in Paris. The business model for RDM was based on the "Motown" model developed by Berry Gordy. In essence the idea was that RDM would establish a stable of song writers. Songs written for RDM would then be offered (or "pitched") to other record labels and artistes. If they liked the songs, then RDM would produce the tracks; in return for both a production fee and production and writers' royalties. There was a dispute about whether it was M. Dreux-Leblanc or Mr Rawling who had the idea for the "Motown" model. I do not think that it matters; whoever had the idea in the first place they both knew very well what it was. RDM's first signings as writers were Paul Barry and Steve Torch (both on 1 June 1994 for a three year term). At the time both Mr Barry and Mr Torch were also performers in a band called "God's Gift", managed by Mr Rawling. XIII Bis had a studio in Paris, and employed a producer/writer there called Patrick Abrial. RDM had no independent production capacity in England. If called upon to produce tracks, it outsourced the work to independent freelance producers. One of these was Gary Miller.
9. In early 1995 Mr Rawling came across Mr Taylor. Mr Taylor was very short of work at the time. But Mr Rawling was impressed; and decided to try to persuade M. Dreux-Leblanc to take him on. On 2 March 1995 he sent a fax to M. Dreux-Leblanc in which he said:

"MARK TAYLOR is the writer/producer I am very interested in and I believe he can become a very important piece of RIVE DROITE."

10. He referred to Mr Taylor's success as a producer, and named three international hit songs that he had produced. He continued:

"This guy is 23 years old and I really believe that if he is as good as I think we should sign him as a writer and use him as our in house producer in the way we have tried with Gary MILLER."

11. (Mr Taylor was in fact 25). At about this time M. Dreux-Leblanc was considering acquiring more substantial premises in England for RDM, which would include facilities for a recording studio. The property in question was Home Park House in Hampton Wick. By 29 March 1995, M. Dreux-Leblanc had viewed the property and had commissioned a valuation of it from Baker Lorenz. Eventually the property (also referred to as "Dreamhouse" or "Dreamhouse Studios") was acquired through the medium of a property company which M. Dreux-Leblanc owned.
12. On 18 April 1995 Mr Rawling sent a fax to M. Dreux-Leblanc in which he said:

"MARK TAYLOR is a writer/producer who really has interested me as we really have to find new talent especially as we will have to have an "in house producer" for the new studio wherever it will be. Mark is obviously talented having had 9 top 48 hit singles already and at 22 years old that's a good start. ISLAND music are in the chase for [Mark's] signature but I feel he will come to RDM and next time you are in the UK I would like to introduce you to him."

13. (Island Music were part of the Polygram group; a major record label). On 31 May 1995 Mr Rawling sent a fax to M. Dreux-Lambert in which he said:

"My idea is to have enough records to make and releases which in turn will pay for our new place and studio. It won't be easy initially but I feel with some help from you like you have done in the past bringing in some recording projects we will be OK.

I have also been "renting" Gary Millers studio for the past couple of weeks as to get a feel for the equipment and also to check Mark Taylor out and you will be happy to know he is everything I have been looking for in a collaborator."

14. Contracts for the purchase of Home Park House were exchanged on 27 June 1995.
15. Some time in July 1995 RDM supplied Mr Taylor with a draft publishing agreement. Mr Taylor sent it to the Musicians' Union for advice. He said that they returned it "covered in ink"; but the version that they returned to him has not survived. By now Mr Taylor was producing his first song for RDM; and was also collaborating with some of RDM's writers. Mr Taylor discussed the draft publishing contract with Mr Rawling, who recommended him to go to a lawyer called Peter Cornish. Mr Taylor consulted Mr Cornish, who gave him a general layman's explanation of the draft, and said that it was "fine" overall.
16. The purchase of Home Park House was completed in September 1995; and M. Dreux-Leblanc's property company granted RDM a licence to use the ground and lower ground floors, together with a lower ground rear extension. The upper part of the building was a flat. It was not included in the licence. Work had begun on providing a studio within the property even before completion, probably just before exchange of contracts at the end of June; and this was finished in the autumn of 1995. The studio was used by Mr Taylor and, with rare exceptions, no one else. M. Dreux-Leblanc came to the property from time to time between June and October to oversee the work.
17. On 1 October 1995 a written contract of employment with RDM was prepared for Mr Rawling. His job title was "Director", although he was not a director of the company. The version in the case papers is unsigned. At the same time Mr Rawling entered into a publishing agreement with RDM for a term of three years.
18. At about the same time Mr Taylor and RDM reached agreement on the terms on which he would undertake production work. This agreement was oral. Almost everything about it is in dispute. They also reached agreement on the terms of a publishing agreement, which was later reduced to writing. The manner in which this agreement was negotiated is also hotly in dispute.
19. Two months later, on 1 December 1995 Mr Taylor entered into the first of his publishing agreements with RDM. He travelled to Paris to XIII Bis' offices to sign it. There were still a few points to be finalised, and Mr Taylor discussed them with M. Dreux-Leblanc. Mr Rawling was not present. The agreement was on M. Dreux-Leblanc's lap-top computer, and Mr Taylor made one or two minor changes to the draft. He was described in the agreement as "the Writer". It was for a term of two years. I need only notice briefly some of its terms. Clause 3 (b) contained a definition of "Cover Record". This was defined as a recording of a composition "on which the featured performance is by persons other than the Writer". Clause 10 set out the royalty split. In all cases (except for performing income) the split was 70 per cent to the Writer and 30 per cent to RDM; but in the case of "Cover Records" the split was 60:40. It is common ground that Mr Taylor was told that the clause relating to Cover Records would not be strictly enforced; but when and what he was told are in dispute. Clause 11 provided for advances of £10,000 a year payable in two semi-annual instalments: the first on signing and the second on the following 1 May. (No one noticed that 1 May is less than six months after 1 December). Clause 11 dealt with advances for each of the two years in separate sub-paragraphs. There was a clause 11 (c) in the template from which the agreement was taken; but it was marked "intentionally deleted". By clause 12 the Writer undertook to deliver at least 10 compositions in each 12 month period of the agreement. If he failed to do so, the relevant twelve month period would be automatically extended until 60 days after the minimum commitment had been fulfilled. One of the issues in the case is whether the two year term was something that RDM proposed to Mr Taylor and he agreed; or whether RDM proposed a three year term, but at Mr Taylor's insistence, settled for a two year term. Another is whether Mr Taylor was told that the minimum commitment clause would not be enforced against him.
20. Paul Barry and Steve Torch entered into new publishing agreements on 1 June 1997. Each was for a term of three years. Each of them was entitled under the agreement to an annual advance payable in quarterly instalments. Mr Torch's advance was £10,000 a year; and Mr Barry's was £18,500. By now Mr Taylor and Mr Barry had been successfully collaborating on a number of songs. They were a good writing team. One of the songs they wrote was called "Dovè L'Amore". Mr Rawling had been in communication with Warner Music. Among the artistes that Warner represented was Cher. On 2 June 1997 Mr Rawling reported to M. Dreux-Leblanc that Cher was interested in recording "Dovè L'Amore".
21. On 1 October 1997 RDM signed another writer called Graham Stack. The term of his agreement was two years. On 1 December 1997 Mr Taylor entered into the second of the publishing agreements with RDM. It was for a term of two years, and was in the same form as the first agreement of 1995.
22. The World Cup took place in France in the summer of 1998. M. Dreux-Leblanc invited Mr Taylor and Mr Rawling to join him in Paris to watch one of the matches. Which match it was, on what date it was played, and what happened on the occasion of the visit is in dispute. It is not, however, disputed that Mr Taylor was accompanied by a friend of his (Jeff Taylor: no relation); that before the match they all had dinner in a VIP restaurant at the Stade de France; and that after the match and a visit to what sounded like a rather seedy bar, M. Dreux-Leblanc, and Messrs Mark Taylor and Rawling sat out on the terrace of M Dreux-Leblanc's house in Neuilly, talking. What they talked about is in dispute.
23. Some time in late June Mr Rawling had another meeting with Warner. On 1 July he reported to M. Dreux-Leblanc that Cher was due to release a single called "Believe" on 17 September. The single "Believe" had been produced by Mr Taylor. Mr Rawling commented that the album looked good for the sub-publishers. In the same fax he passed on a complaint that Mr Taylor had not received his advance. Although it was contractually due on 1 May, Mr Taylor had been expecting it on 1 June (six months after the date of the agreement); but it had not arrived. Also on 1 July RDM drew a cheque in Mr Taylor's favour for £5,000, which was debited from its account on 8 July.
24. On 31 August 1998 Mr Rawling reported to M. Dreux-Leblanc that Mr Taylor was in the process of buying a property and needed £20,000 as a deposit. Mr Rawling continued:

"He has discussed with me the possibility of getting £20,000 together from either his outstanding moneys or advance on Further productions i.e. we owe him money from McGANNS and the Previous productions and royalties (GINA) I have said I will talk to you but if we can do it of course it solidifies our Future with MARK even more.

As you are aware his commitment to Us is Total and if it's a possibility my angle is we should do it.

Maybe we can talk about it when you are over."

25. On 4 September 1998 (or shortly afterwards) Mr Taylor received a cheque from RDM for £30,000 (not the £20,000 originally requested).
26. Cher's team were putting together the tracks for the album that was to be released in conjunction with "Believe". The selected tracks included four which Mr Taylor had co-written with Mr Barry. They were: "All or Nothing", "Dovè L'Amore", "Strong Enough" and "Runaway". In addition Mr Taylor had been responsible for producing "Believe".
27. On 1 October 1998 Mr Rawling entered into a new publishing agreement with RDM for a term of three years. His 1995 agreement had just expired. On 1 November 1998 Mr Barry entered into a new publishing agreement with RDM for a term of three years. His 1997 agreement still had some nineteen months to run.
28. Both the Cher single and the Cher album were enormous successes. By the end of October 1998 the single had reached No. 1 in the UK; and it stayed there for seven weeks.
29. On or about 1 December 1998 Mr Taylor entered into a new publishing agreement with RDM. His 1997 agreement still had a year to run. The proper interpretation of this agreement is in dispute. RDM also says that the agreement contained a mistake that ought to be rectified. The principal issue is whether (as Mr Taylor says) the agreement was for a new two year term, or (as RDM say) for a new three year term. I will deal with these issues later in this judgment. For the moment, I simply set out the relevant terms.
30. The agreement bears the date 1 December 1998. Mr Taylor was defined as "the Writer", and RDM as "the Publisher". Clause 1 contained an assignment of copyright by Mr Taylor to RDM of all existing works, and all compositions composed during the term of the agreement. Clause 3 contained a definition of "the Compositions" and also dealt with Cover Records in the following terms:

"The term "Cover Record" shall mean recordings of the Compositions or any of them procured by the efforts of the Publisher or its sub-publishers or its sub-licensees on which the featured performance is by persons other than the Writer."

31. Clause 4 (a) provided:

"(i) The Term of this Agreement shall (subject to Clause 12 (b) hereof) be for a period 2 (two) years from the date hereof

(ii) In the event that all advances paid to the Writer hereunder have not been fully recouped (as hereinafter defined) at the expiry of the Term, then the Term shall be extended for the shorter of either 1 (one) years or to the end of the accounting period in which recoupment occurs."

32. Clause 6 (a) provided:

"The Publisher hereby represents and warrants that it will use all reasonable endeavours to exploit the compositions it being understood that promotional activity undertaken by the Publisher … shall be at the sole discretion and expense of the Publisher and the Writer shall not, unless agreed to the contrary between the Writer and the Publisher, be charged with the whole or any part thereof."

33. Clause 10 dealt with the royalty split. In general royalties were split 70 per cent to the Writer and 30 per cent to the Publisher. There were two exceptions to this. First, the Writer was only entitled to 60 per cent on "Cover Records". Second, the Writer was only entitled to 40 per cent of the Publisher's share of performance income.
34. Clause 11 dealt with advances. It said:

"The Publisher agrees to pay to the Writer during the Term hereof the following advance payments on account of and recoupable from fees and royalties payable to the Writer pursuant to the Agreement:

(a) £25,000.00 (twenty five thousand pounds sterling) during the first 12 (twelve) month period of this Agreement payable in 4 (four) equal [quarterly] instalments, the first such instalment being paid upon signature hereof and the subsequent instalments being paid on 1^st March 1999, 1^st of June 1999, 1^st of September 1999;

(b) £25,000.00 (twenty five thousand pounds sterling) during the second 12 (twelve) month period of this Agreement payable in 4 (four) equal quarterly instalments, the first such instalment being paid on 1^st December 1999 or such later date as may be occasioned by the extension of the first 12 (twelve) month period of this Agreement and the three subsequent instalments being paid at three-monthly intervals thereafter.

(c) £25,000.00 (twenty five thousand pounds sterling) during the third 12 (twelve) month period of this Agreement payable in 4 (four) equal quarterly instalments, the first such instalment being paid on 1^st December 2000 or such later date as may be occasioned by the extension of the first and/or the second 12 (twelve) month period of this Agreement and the three subsequent instalments being paid at three-monthly intervals thereafter."

35. The word "quarterly" was misspelled in Clause 11(a) of the Agreement as "quarerly". The spelling mistake has some significance, as I will explain later. Clause 12 dealt with the minimum commitment. This obliged the Writer to deliver 10 new compositions in each 12 month period of the term. Clause 12 (b) said:

"In the event that the Writer fails to fulfil the Writer's Minimum Commitment for any 12 (twelve) month period as aforesaid at least 60 (sixty) days prior to the expiration of the relevant 12 (twelve) month period then without prejudice to any other rights of the Publisher the said 12 (twelve) month period of the Agreement shall be automatically extended without further notice or payment from the Publisher until 60 (sixty) days following the fulfilment of the Writer's Minimum Commitment for the said 12 (twelve) month period (and the Term hereof shall be deemed extended accordingly) provided that no one period of extension shall exceed 2 (two) years SAVE THAT, notwithstanding any failure to fulfil the Minimum Commitment, no extension shall be applied in the event that all advances actually paid to the Writer hereunder shall have been recouped, including a estimate made in good faith by the Publisher of so-called "pipeline" income."

36. Clause 20 acknowledged the existence of two prior agreements between the Writer and the Publisher; and said that the Publisher could use royalties payable under the 1998 agreement to recoup advances paid under the previous agreements. Clause 22 said that the agreement would be governed by English law.
37. On 1 December 1998, RDM drew a cheque in favour of Mr Taylor for £6,250. This represented one quarter of an annual advance of £25,000 (increased from the advance of £10,000 payable under the two previous agreements) that clause 11 provided for.
38. On 21 December 1998 M. Colas, who works in XIII Bis' copyright department in Paris, registered the new agreement with the Performing Right Society and the Mechanical Copyright Protection Society. The details of the notification give the start date of the new agreement as 1 December 1999 and the end date as 30 November 2000: a period of two years. M. Colas says that this was a mistake.
39. Cher was impressed by Mr Taylor and wanted him to record more songs for her. At one stage the proposal was that she should record these in Los Angeles in April 1999, but this was postponed. On 9 April 1999 Mr Rawling reported to M. Dreux-Leblanc that he wanted to bring another producer, Walter Turbitt, over from Los Angeles. The long term aim was to have him as an in house producer in a new studio. He reported that sales of Cher's album had now reached 6,500,000. He also reported that "we are going to produce the new album by [Enrique Iglesias] in JUNE."
40. As a result of the success of Cher's album Mr Taylor's reputation soared; as did his earnings. RDM agreed to seek tax advice for him and wrote to their accountants on 18 May. The letter described Mr Taylor as a self employed writer and producer. A meeting took place at Home Park House on 25 June. Mr Taylor, Mr Rawling and M. Dreux-Leblanc (among others) were all present.
41. In the meantime, on 2 June 1999, Mr Rawling had sent a very upbeat fax to M. Dreux-Leblanc. He said:

"I think we have come a long way over a long period and on behalf of all the song writers we have assembled Thanks for the strength and belief through some hard early days and some hard days no doubt in the future. …

On a business level we have never been in a stronger position with the CHER record still doing fantastic and the new single already on the radio in the UK. From the publishing side CELINE DION ROD STEWART TINA TURNER [LIONEL RICHIE] [ENRIQUE IGLESIAS] JAMIE LEE and much more suggests that we have a phenomenal young catalogue growing by the day, not to mention the production side.

This next month is going to be the busiest we have ever had and whilst all the guys are working all day and night I am confident we will deliver our best records under this pressure."

42. Mr Rawling also reported that there was a next-door building for sale which he thought would make a good studio. On 15 July Mr Rawling reported to RDM that the last few months had been "unbelievable for the amount of things we have got through". He supplied a list of tracks on which they had worked. His overall assessment was:

"All in all things are very good and we will have a lot more hits this year worldwide."

43. On 29 July 1999 Enrique Iglesias entered into a written agreement with RDM for the provision of the non-exclusive services of Messrs Taylor and Rawling (professionally known as "The Groove Brothers") to produce two tracks for him. Messrs Taylor and Rawling signed the agreement to signify their assent to it.
44. On 1 August 1999 Steve Torch entered into a new publishing agreement with RDM for a term of three years.
45. On 4 August 1999 Mr Rawling gave M. Dreux-Leblanc an update. He grouped activities under two heads: Productions Studio 1 and Productions Studio 2. The first of these was the studio in which Mr Taylor worked. Mr Taylor was working on mixing singles for Tina Tuner; and a recording session with Rod Stewart was also in prospect. In addition, Mr Rawling discussed a proposal to create a third studio in what had been the first floor flat at Home Park House.
46. At the end of August Graham Stack was on the point of signing a new publishing agreement with RDM for a three year term. He raised a concern about the application of the "cover clause" (clause 10 (iii)), which would result in a lower share of royalties being paid to the writer. M. Dreux-Leblanc wrote to him on 31 August and explained:

"We have been using this clause or we will be using this Clause 10 (iii) of your prior agreement and Clause 10 (iii) of your new agreement (to be signed tomorrow) only if we need to pay directly or indirectly a third party. For sake of clarity, we have been using or we will be using this Clause only if we have to pay permanently or not permanently somebody whom help us to procure this particular cover and only if our company margin is less than usual."

47. In the light of this explanation Mr Torch renewed his publishing agreement on 1 September 1999.
48. On 26 September 1999 Mr Rawling reported to M. Dreux-Leblanc that:

"We have also been commissioned by INTERSCOPE to record another record for [ENRIQUE] which is not our song. [Enrique] is in the studio tomorrow recording so it will be a further £20,000 for … this record. The title of this song is "I have always loved you"."

49. He added that "tonight" he was recording with Enrique Iglesias and Mr Taylor was continuing with Lionel Ritchie.
50. On 11 December Mr Rawling reported to M. Dreux-Leblanc that works for the conversion of the flat into a third studio were under way. He sent a further report on 2 January 2000 in which he said:

"Marks workload is as full as we can handle and provided we have some excellent new songs we should continue the year with hits."

51. By the end of July 2000 Mr Taylor was unhappy about the way in which he was credited on recordings. His concerns were shared by Mr Rawling, who sent a fax to Mr Dreux-Leblanc on 31 July. He said:

"Over the past five years we have worked on making records to cash flow the day to day running of the company. The song writing has worked hand in glove with the productions in the fact that everytime I got commissioned to produce an artist we would [invariably] be cutting our own songs which had been written specifically [for] the artist we are producing, all this works really well as the income from both activities have improved on a yearly basis.

I certainly have worked closer to Mark in this area making sure that the productions [were] 1^st class which after a slow initial period has now reached a stage where he is one of the top producers in the world.

To get right to the point of what we feel requires changing within our set up is simply Mark over the past year has made it clear to me that he wants to produce records under his own name rather than have a co producer. So this bit is easy, produced by MARK TAYLOR.

I have no problem with this as the amount of time I spend in his studio is less and less which gives me the opportunity to grow the other producers who can become excellent at making records in a shorter period of time, which is good all round.

Of course my role with Mark does not change, I do the same job as I have always done which is question everything suggest what I feel works or not and making sure we have all the right ingredients in the record.

This is where the record credits should read produced by Mark TAYLOR for BRIAN RAWLING PRODUCTIONS.

…

To be honest I think the Production Company is what it is. This does not change anything in the budgets or royalties or contracts or business affairs, It changes the fact that no body knows what RIVE DROITE MUSIC PRODUCTIONS is but the whole business knows what BRIAN RAWLING PRODUCTIONS is. It means clarity. RIVE DOITE MUSIC is a hot publishing company and BRIAN RAWLING Productions is what it says it is.

…

I am sure you will have your own thoughts on this and that is fine, This is not my ego running away with me this is what I have been going over with the guys for the past months and this seems to us to be the clearest way forward.

I would suggest we meet on Thursday to go over these points and find a way of accommodating the changes required."

52. M. Dreux-Leblanc replied on the same day. He said he was happy to meet on the Thursday. His first reaction to the proposal about credits was:

"I understand very well your comments and Mark comments. Because of that, I feel that it will be fully normal (and I think about it for a long time) to have you credited [as] "Executive and Creative Producer."

For example:

Produce by Mark TAYLOR for Metro for RIVE DROITE MUSIC PRODUCTION.

Executive and Creative Producer: Brian RAWLING.

If you and Mark feel comfortable with this credit, I can try to have it change for the Ricky MARTIN agreement and come on Thursday with the amended agreement."

53. M. Dreux-Leblanc came over to England for a meeting on 10 August. The meeting was a short one, and the question of credits was not resolved. Instead Mr Taylor, speaking for himself and Mr Rawling, expressed unhappiness at the way RDM was going. This came as a surprise to M. Dreux-Leblanc.
54. On 21 August 2000 he wrote a long letter to Mr Taylor. He began by pointing out that neither Mr Taylor nor Mr Rawling had been in contact since 10 August and by proposing a "real meeting" on 28 August. He said that he was deeply confused after the short meeting on 10 August. He said:

"You told me: "I am unhappy only because Brian is unhappy"

I was very surprised to hear that. I did not know that Brian is or was unhappy."

55. He went on to set out his perspective of the history of RDM; his global company strategy and the XIII Bis organisation. He continued by saying that he had supported Mr Rawling and had invested a considerable amount of money to create Dreamhouse studio. He said that he had entertained the people that RDM were working with in Paris, London and the USA. He said that he had brought in a number of clients. He referred to the staff employed by RDM and XIII Bis. He acknowledged that there was room for improvement in the administration and set out a suggested procedure for notifying the administration in Paris of current projects. He went on to refer to "Dreamhouse 2"; a building close to Home Park House that was in the process of being acquired for an extension to the studio facilities. He set out his vision for the future, which included setting up a small studio in the USA. Then he turned to the issue over credits. He said that it was not possible to change company policy from one day to another; and said that it was too late to negotiate changes to the arrangements with Ricky Martin. He ended by looking forward to a meeting in Paris on 28 August.
56. Mr Rawling replied by fax on 24 August (a Thursday). He said that he would answer the letter in detail over the weekend. However, he said that neither he nor Mr Taylor would be able to make a meeting on 28 August as they would be in Miami recording Ricky Martin's vocals. He said that they were returning on 4 September "so hopefully we can schedule something sooner rather than later as we obviously need to work things out". On the same day M. Dreux-Leblanc replied and asked Mr Rawling to confirm a date for a meeting as soon as possible. There was no reply to this, and on 28 August M. Dreux-Leblanc sent a chaser, again asking Mr Rawling and Mr Taylor to confirm a date for a meeting.
57. Just before he left for Miami Mr Rawling sent certain information to RDM in Paris, including details of Mr Taylor's work, for which he was entitled to be paid. RDM sent a fax to Mr Taylor in Miami saying that they were happy to have received the information as they had been waiting for it for a long time.
58. Mr Rawling now replied to M. Dreux-Leblanc's request for a meeting. He said that he and Mr Taylor had received M. Dreux-Leblanc's fax and on their return on 4 September, they would fax about a date for a meeting. Mr Rawling also said that he would supply an "answer document" which M. Dreux-Leblanc would have time to digest before the meeting. He said that there were many issues to discuss. It is not entirely clear when this fax was sent (although it was sent from Miami) as M. Dreux-Leblanc sent another fax to Mr Taylor on 30 August complaining about the delay in fixing a date for the meeting. Mr Taylor replied that he and Mr Rawling would respond on their return; and that only then would it be worth meeting. He also said that he was "disappointed" at the tone of M. Dreux-Leblanc's recent faxes. M. Dreux-Leblanc replied immediately, pointing out that all he was asking for was a date for the meeting. He continued:

"I remind you that in our too short meeting, I was attacked for some reasons that it was difficult for me to understand. I have done my letter just to answer the questions of this meeting.

Now, let's talk together and try to resolve all the problems (if any) and again let's make a date!!!"

59. On 31 August 2000 M. Colas sent a fax to Mr Taylor (who was still in Miami). He said that he had "just noticed" that there was a mistake in the songwriter agreement, in that the duration of two years should have been three. He also sent Mr Taylor a copy of a letter he said he had written to the copyright department at the Mechanical Copyright Protection Society pointing out this alleged mistake, and re-notifying the agreement with a termination date of 30 November 2001.
60. On the same day, and the following day, RDM paid Mr Taylor in accordance with the information that Mr Rawling had supplied four days earlier. While Mr Taylor and Mr Rawling were in Miami, they decided that they would leave RDM and set up on their own. Mr Stack and Mr Turbitt would also leave and join the new organisation.
61. On 6 September RDM asked Mr Taylor to supply invoices to enable RDM to settle them. On the same day M. Dreux-Leblanc invited Mr Taylor to a concert in Paris by Enrique Iglesias on 12 September. Mr Taylor declined the invitation, saying that he was hoping to complete the Ricky Martin mix.
62. On 1 October 2000 Mr Rawling went on a trip to New York, where he stayed until 5 October.
63. On 2 October RDM gave a lunch party at the Vecchia Roma restaurant in Kingston for the songwriters and staff. Many of the French staff came over for the occasion. At the lunch M. Dreux-Leblanc gave Mr Taylor a royalty cheque for a large sum of money. On the following day M. Dreux-Leblanc sent Mr Taylor a fax. He said:

"As we discussed yesterday, please call me, today or tomorrow, concerning the agreement of Lionel RICHIE so I can give you more explanations about it."

64. He again said that it was too late to change the credits on the Ricky Martin album, and suggested that it be executed in its then form. He ended by saying that if Mr Taylor disagreed he should call to arrange a meeting before the end of the week.
65. On 14 October 2000 Mr Rawling sent a long fax to M. Dreux-Leblanc in which he gave him a full account of his trip to New York. His fax included the following:

"Mark has asked me to request the production royalties are paid within 1 month, he has had a meeting with his accountant who requested payment within 7 days, Mark has suggested one month is long enough, all we have to do is split the cheque received by 50 percent.

If you have any comments on this please put it on paper to both Mark and myself.

I would also appreciate my share as I have an extension being built. If this is possible great, If not please let us know why and when we can expect payment."

66. On the question of Ricky Martin credits, Mr Rawling said that he and Mr Taylor would fax "after we have caught up with each other"; and he said that he would be answering M. Dreux-Leblanc's faxes "as from Monday" (16 October).
67. By the end of October (if not earlier) arrangements were in hand for looking for premises for the new organisation. Mr Turbitt and Mr Taylor were among those looking.
68. The proposed meeting between M. Dreux-Leblanc and Messrs Taylor and Rawling had still not taken place, even though M. Dreux-Leblanc had been asking for it since August. Accordingly, on 30 October he sent a fax to Mr Taylor setting a meeting for 10 November (a Friday) and offering to book a hotel for the weekend for Mr Taylor and his girlfriend. On the same day Mr Rawling sent a fax to Mr Dickins (representing Cher), in which he expressed his and Mr Taylor's keenness to work on a song called "The Music's no Good without You" to be sung by Cher. The fax was sent on RDM headed paper.
69. On 1 November 2000 Mr Taylor wrote to M. Dreux-Leblanc asking whether he could receive his share of royalties directly from the record companies, rather than via RDM. His stated reason was that he had been given advice to this effect by his accountant; and he enclosed a copy of his accountant's letter. That letter referred to the possibility of the Inland Revenue trying to argue that Mr Taylor was in fact an employee of RDM. If successful, that argument would have adverse consequences both as regards income tax and National Insurance, for RDM as well as Mr Taylor. The accountant's letter said:

"Given your relationship with Rive Droite in terms of contract duration and the full time aspect of your contract fulfilment, the Revenue could seek to suggest with some force, that you were in fact an employee of the company and seek to recover tax and National Insurance (including employer's contribution) from Rive Droite."

70. M. Dreux-Leblanc replied on the following day. He said that he had referred the point to RDM's accountant; and agreed that it was time to formalise the producer relationship. He said that it would be a matter for discussion at the meeting in Paris on 10 November. On the next day M. Dreux-Leblanc wrote to Mr Taylor to say that a band called "Gypsyland", in whom M. Dreux-Leblanc took a keen interest, were available for recording on various dates. On the same day he wrote to RDM's English solicitors about Mr Taylor's request to be paid directly by the record companies. He said:

"I do not feel comfortable to have Mark paid directly by the record label, but if we have to go on this route, we will need to formalise the exclusive representation by our company of the Co-producer rights."

71. On 6 November, Mr Rawling replied to M. Dreux-Leblanc's letter to Mr Taylor of 21 August. The letter was clearly written with the help of legal advice. He expressed his unhappiness with the way that RDM's business was being conducted; and accused M. Dreux-Leblanc of undermining the mutual trust and confidence between them. The upshot was that he gave three months' notice terminating his employment with RDM. The termination date would be 10 February 2001.
72. On 8 November Mr Taylor wrote to M. Dreux-Leblanc. He said that M. Dreux-Leblanc had set up a meeting for 10 November "without consulting me"; and said that due to current work load it was impossible for him to contemplate time away from the studio. He therefore returned the two air tickets to Paris that M. Dreux-Leblanc had sent him.
73. On 9 November M. Dreux-Leblanc replied to Mr Rawling's letter of resignation. It was a long letter, setting out M. Dreux-Leblanc's perspective on the history of RDM and Mr Rawling's position within it. On 13 November he wrote to Mr Taylor about accounting dates for royalty payments. He said that accounting dates had previously been agreed and then changed at Mr Taylor's request. He said that it was not practicable to change again; but nevertheless said that:

"I will try to follow your wish and please find a part-statement on the money received, including the amount received last week."

74. M. Dreux-Leblanc reiterated the need for a meeting and said that he had asked Mr Rawling to arrange a meeting in Paris on Monday 27 November. He offered to book accommodation for Mr Taylor and his wife. The letter also enclosed a CD demo by Gypsyland, and asked Mr Taylor for his thoughts about it. A few days later (the fax is undated) Mr Taylor declined to take on the Gypsyland project.
75. On 21 November Mr Rawling wrote to M. Dreux-Leblanc to say that pre-production had started on tracks for Cher. Mr Rawling sent round an internal memo, setting up the meetings that M. Dreux-Leblanc had asked him to arrange (although in Mr Taylor's case he got the date wrong). But in any event, Mr Taylor declined the meeting, on the ground that Cher was coming in on the previous Friday to start, so that a Monday meeting was not good for him.
76. Mr Taylor sent a fax to M. Dreux-Leblanc dated 27 November 2000 (although the fax was not sent until 28 November) It reads:

"I wanted to clarify the situation regarding my publishing agreement dated 1^st December 1998, which comes to an end this month.

Despite the drafting mistake in Clause 11, it was agreed that the Term of the agreement would be 2 years (this is specifically stated in Clause 4: The Term).

As you are well aware I have always had a 2 year term in my publishing agreements with you and would not have entered into this one if it had been for a longer term than 2 years. As you are also aware my royalty account is recouped, so that there will be no extension to the term.

I therefore confirm that the Term ends on 30^th November 2000."

77. On 30 November 2000 M. Dreux-Leblanc sent a fax to Mr Taylor. Among the points he made were the following:

"When we have negotiated your new deal it was for three years, as it has been the same as for all the writers that we have renewed at this time. For example, we have done with Paul BARRY and Graham STACK.

You know a drafting mistake could be done copying the agreement of Mark TAYLOR signed in 1995 for the new agreement signed in 1997. Then you copied the agreement of Mark TAYLOR signed in 1997 for the new agreement signed in 1998, you can only forget to change couple of words (on this case, only one number and three letters) but, it is impossible to do a typing mistake adding seven lines of words with the correct dates and money advances for a three years agreement. You know very well this agreement that you have signed three times because you have yourself re-draft a lot of clauses including clause 11. It is clear and we both knew that if I pay you an advance for three years, it is because the terms are for three years.

Of course, which is normal, what you are checking first on the agreement is the advance money you will have which is the full clause 11 that you have read carefully. It is evidence that it was agreed between us that the three years advances are for three years.

You mentioned to me on the RIVE DROITE MUSIC kitchen lounge at the beginning of 1999, that I have forgot to change the clause 4 for this new agreement. I asked you if you wanted to re-sign the contract. You told me that I could change the page where the typing mistake is, the clause 4. I said that it was clear from clause 11 that it was a three years deal and that this is what we had agreed. You agreed with this so we did not re-sign the contract.

I told you that everything was written on the clause 11, on the same agreement and because we were working together on good faith, I did not have to change this page.

Evidence that your agreement was not terminating the 30^th of November 2000, is the fact that we have not proposed to you a new agreement for the future. Due to your success of the past years, we would have immediately proposed a contract if your agreement was to terminate now.

The 31^st August 2000, Jacques COLAS sent you at your hotel in Miami a fax including the copy of a letter he sent to MCPS about the information about the date of termination of your publishing agreement (30^th of November 2001). You never disagreed because you clearly believed that the contract did not end now.

On the publishing party we had at the Vecchia Roma restaurant in London with all the publishing team on the 2^nd of October 2000, I gave you this day a check of £339.598,09 (representing your semi-annual publishing statement) as well as two tee-shirts with your name on it (as a writer part of the RIVE DROITE MUSIC publishing team). We were sitting one close to the other and we have spoke about new songs and what we have to achieve with your new songs to be written in 2001. Of course, you never mentioned that your deal will be terminated two months after, because it is not the case."

78. M. Dreux-Leblanc concluded by pointing out that he had been trying to arrange a meeting for a number of months, and proposed a new date for a meeting, this time at a hotel in Kingston. Mr Taylor replied on the following day. He said that he was taking advice and would not be meeting M. Dreux-Leblanc.
79. In early December 2000 Mr Taylor travelled to Miami with Mr Barry, where they worked on songs to be recorded by Enrique Iglesias. The nature and extent of their work is in dispute. They stayed there for about a week. Before he left for Miami Mr Taylor bought some computer equipment that he needed for the trip. The invoice was addressed to him at "Stoneroom", a studio in Acton, West London.
80. On his return to England Mr Taylor rented studio space at Stoneroom.
81. Meanwhile on 5 December 2000 Mr Taylor's solicitor had written to M. Dreux-Leblanc maintaining that the publishing agreement expired on 30 November 2000. On the following day Mr Taylor sent a fax to M. Dreux-Leblanc. It read:

"I have been thinking about my future plans now that Brian has decided to leave Rive Droite Music.

Brian has always been the reason for my working with Rive Droite and if he is not going to be around I see no reason to continue.

I have therefore decided to end my production arrangement with Rive Droite with effect from 1^st December 2000.

I will clear all my personal bits and pieces from Home Park House as soon as possible."

82. M. Dreux-Leblanc replied on 11 December. He asked Mr Taylor to reconsider his decision; and continued:

"Secondly, you have an obligation to finish all the current projects that you are involved in on behalf of RIVE DROITE MUSIC, which include of course the CHER album and the Andrea BOCELLI album. I hope you will finish these and honour your professional commitments. I will be very disappointed if you not do it."

83. He went on to say that Mr Taylor's letter of resignation was not effective; and said that he should give six months' notice.
84. Mr Taylor replied on 15 December. He said his mind was made up. He continued:

"I cannot imagine why you would think I would not complete any project which I've agreed to do, which involves Rive Droite. I can assure you I will, of course, complete the work."

85. He rejected the suggestion that he was obliged to give six months' notice, on the ground that he was a "freelance producer with no contractual commitment to Rive Droite Music".
86. Over the next month or so all the producers and most (if not all) of the administrative staff left RDM. Most of them went to work for Mr Rawling at BRP.
87. On 10 January 2001 RDM's then solicitors wrote a letter before action to Mr Taylor. Among the things it said were:

"1.1 You have entered into successive Publisher's Agreements with RDM, the first two of which, dated 1^st December 1995 ("the First Agreement") and 1^st December 1997 ("the Second Agreement") respectively are in identical terms. The First Agreement was based on RDM's standard agreement of three years' duration which you modified. …

1.5 Mid-way through the two-year term, a further Publisher's Agreement was negotiated which commenced on 1^st December 1998 ("the Third Agreement"). As at that date you had not complied with the minimum commitment for year one of the Second Agreement.

1.6 RDM re-negotiated its contractual arrangement with you prior to the expiry of your current term as it was seeking to renew the contracts of all its writers on three year contracts. The terms of the Third Agreement were orally agreed between yourself and Leblanc before the hard copy was signed on 1^st December 1998. Notwithstanding the reference to a two year term in clause 4, the agreed intention of the parties was that it would be a three year term, as is demonstrated by the payment of the advances being structured over a three year, rather than a two year period.

1.9 In January 1999, you alerted Mr Leblanc to the drafting error in clause 4 of the Agreement (Term). He asked you whether you wished to re-sign the Agreement. You agreed with him that it was clear from clause 11 that the term should be of three years' duration. Mr Leblanc took you at your word and the Agreement was not re-signed.

1.10 By a letter dated 31^st August 2000, Jacques Colas of the Copyright Department of RDM informed you that he had noticed the drafting error regarding the term of the third Agreement. He asked you to complete a new joint notification form to confirm that the Third Agreement was for a three year term ending on 30^th November 2001.

1.11 You did not reply until 27^th November 2000. In you letter of that date you asserted that the drafting mistake was in Clause 11 (Advances), that the Third Agreement was for a two year term which terminated on 30^th November 2000 and that as the royalties are recouped the Agreement could not be extended."

88. Mr Taylor's solicitors replied on 19 January. They said:

"Our Client first executed a publishing agreement with Rive Droite on 1 December 1995 ("the First Agreement"). At our Client's express insistence, the term of that agreement was only two years. This was a point that our client expressly agreed with Brian Rawlings (sic), then representing Rive Droite in the U.K. For this reason, two changes were needed to the Agreement in fact executed (which was a Rive Droite standard form agreement). First, clause 4 (a) had to reflect the fact that the parties were executing a two, rather than Rive Droite's usual three year deal. Secondly, clause 11 (c) of the First Agreement (providing for the payment of third year advances) had to be "intentionally deleted". This had to be done before the First Agreement was "printed-off" by Rive Droite from its computer system, and executed by the parties. We are instructed that the First Agreement was executed in Paris and that Leblanc was present when it was signed. …

By half way through the term of the Second Agreement our Client's compositions were beginning to enjoy considerable success. For this reason Leblanc and Brian Rawlings (sic) suggested to our Client that he execute a new publishing agreement immediately. Leblanc stated that if he did so, Rive Droite would increase the advances payable to our Client. Indeed, Leblanc offered almost immediately to more than double our Client's advances to some £25,000 per year. Our client accepted. We are instructed that these discussions took place in Rive Droite's studio in the U.K.

Our client instructs us that at no stage during those discussions did he agree to a three year deal, nor was there any suggestion that he should do so. Indeed, we are instructed that the "term" of the Agreement was not specifically discussed at this stage. Our Client had no reason to suppose that Rive Droite was looking for a three year term. …

Our Client instructs us that he did not read through clause 11 of the Third Agreement with any care before signing that Agreement. He did not notice that clause 11 (c) had not been "intentionally deleted", or indeed that clause 11 differed from the First and Second Agreements in providing for the quarterly, rather than bi-annual payments of advances which had been specifically agreed for the First and Second Agreements. He merely assumed that, save for the increased provision for advances, the Third Agreement was on the same terms as its predecessors. …

Our Client never had the discussion … referred to … in paragraph 1.9 of your letter."

89. For reasons which do not matter, RDM's solicitors' response was sent direct to Mr Taylor on 16 March 2001. They said:

"You continue to be bound by the terms of the Publisher's Agreement dated 1^st December 1988 ("the Third Agreement"). The terms and the manner in which they were arrived at were as set out in our previous letter to you of 10^th January. In particular, our client negotiated a two year agreement with you in accordance with its practice for new writers (e.g. Graham Stack). RDM's standard agreement of three years' duration had to be modified.

By half way through the term of the Second Publishing Agreement, you were starting to enjoy some success but to state that you enjoyed "considerable success" is inaccurate. "Believe" was the only track on the Cher album, for example, which charted at number one and it has been number one in 38 countries.

Contrary to Eaton's assertion, you started negotiating the terms of the Third Publisher's Agreement during July 1998 when you stayed with Mr Leblanc's at his home in Paris with Brian Rawling during the World Cup. You discussed changing the existing contractual terms between you under the Second Publishing Agreement and entering into a three year deal with increased advances being made to you in the sum of £25,000. Mr Leblanc amended the Second Publisher Agreement on his lap-top to add the provisions of clause 11 (c) and to amend the frequency of the payments of the advances. He omitted to amend the clause 4 (a)(i) regarding the term. You were particularly interested in the provisions regarding the advance and therefore our client is surprised that you did not notice what you say is an error. The hard copy of the Third Publishers Agreement was signed by you thereafter, on 1^st December 1998."

90. I break off the narrative here to deal with the contentious factual issues arising during the period of Mr Taylor's association with RDM.

M. Dreux-Leblanc's and Mr Rawling's roles at RDM

91. One of the stark conflicts of evidence is whether Mr Taylor reached an agreement with M. Dreux-Leblanc at all. RDM contends that he did. Mr Taylor contends that all his discussions were with Mr Rawling; and that he had no discussions at all with M. Dreux-Leblanc directly. Allied to this dispute is the dispute about the role that M. Dreux-Leblanc played within XIII Bis and RDM. Mr Taylor says that he was just the "money man". M. Dreux-Leblanc says that his role extended to bringing in artistes and writers as well. Although this dispute is primarily about the credibility of the witnesses, it also bears on the likelihood of M. Dreux-Leblanc having conducted or participated in the negotiations with Mr Taylor.
92. The picture painted by Mr Taylor in his witness statement was that M. Dreux-Leblanc was a remote figure, coming over to England five or six times a year for meetings with Mr Rawling. In his witness statement Mr Rawling also said that M. Dreux-Leblanc came over to England about four or five times a year. Mr Rawling said:

"I handled everything on the creative side of the business: I went out and secured deals and worked with the writers, managing and supporting them and taking delivery of their compositions when completed. I communicated with [M. Dreux-Leblanc] about what was going on by fax or by telephone call…. All the administrative matters (registration of songs, receipt of monies, payment of writers and so on) were handled in France.

I also negotiated the main commercial terms of the deals with the songwriters signed to RDM i.e. Paul [Barry] and Steve [Torch] and subsequently other songwriters including Mark Taylor. These terms included the royalty splits, the advances/fees and the term of the deal. Having negotiated a deal, I would then inform the Paris office of what I had done and [M. Dreux-Leblanc] would complete the process by drawing up a written agreement."

93. Of Home Park House, Mr Rawling said in his witness statement:

"I offered to build a studio to make our relationship [i.e. between him and Mr Taylor] more solid. … Eventually I found a property called Home Park House in Kingston which Mark really liked. … We met some local builders and started developing a studio to Mark's specification."

94. In my judgment both these statements underplay M. Dreux-Leblanc's involvement in the affairs of RDM. First, in his oral evidence, Mr Rawling said that M. Dreux-Leblanc came to England every six to eight weeks and sometimes twice a month. He disavowed the description in his witness statement of M. Dreux-Leblanc's visits as "rare". Second, he accepted that RDM was a collaboration between him and M. Dreux-Leblanc; and that they "talked all the time". Third, although he said that it was he who pointed out Home Park House to M. Dreux-Leblanc (because he drove past it many times), he accepted M. Dreux-Leblanc's account of how it came to be acquired. He, M. Dreux-Leblanc and M. Dreux-Leblanc's assistant were driving past it one day, when M. Dreux-Leblanc noticed a "For Sale" sign. He asked Mr Rawling to stop the car. They had a quick look at the building; and M. Dreux-Leblanc arranged to view it later the same day. On the same day M. Dreux-Leblanc told the vendors that he wanted to buy it. It is also clear from the documents that M. Dreux-Leblanc commissioned a valuation and handled the legal side of the acquisition. Fourth, in his fax of 31 May 1995 Mr Rawling acknowledged M. Dreux-Leblanc's contribution in "bringing in some recording projects". Fifth, it is clear on the documents that M. Dreux-Leblanc was involved in negotiating the detailed terms of songwriters' contract with, amongst others, Graham Stack and Gary Miller. Sixth, it is clear from Mr Rawling's fax to M. Dreux-Leblanc of 31 August 1998 that Mr Rawling did not have authority to agree to pay Mr Taylor the £20,000 he had asked for; and that he made that clear to Mr Taylor ("I have said I will talk to you"). The fact that RDM actually paid Mr Taylor £30,000 indicates that Mr Taylor must have discussed the payment directly with M. Dreux-Leblanc; not least because Mr Rawling did not know how that amount came to be agreed.
95. M. Dreux-Leblanc's evidence of his role at XIII Bis was supported by the unchallenged evidence of M. Bressand.
96. On the other hand, I think that M. Dreux-Leblanc downplayed Mr Rawling's role in the commercial side of RDM. He would not accept that there was a real possibility that Mr Taylor and Mr Rawling discussed even the outline terms of Mr Taylor's first publishing agreement; or the producer agreement. He said that Mr Rawling hated to be in contact for the negotiation of the agreements, because it prejudiced his position as the "creative guy". Hence he allowed M. Dreux-Leblanc to do all negotiations, even though M. Dreux-Leblanc was unhappy with this, because sometimes Mr Rawling could be of help.
97. There are a number of matters that undermine this evidence. First, according to M. Dreux-Leblanc himself, when Paul Barry and Steve Torch were first signed to RDM in 1994, Mr Rawling was advising them on the terms of their contracts. Second, when Mr Taylor began working for RDM as a producer, it was Mr Rawling who decided what fee he would be paid. Third, Mr Turbitt, who was engaged by RDM as a producer in 1999 (although not on the terms of a written agreement), conducted most of his commercial discussions with Mr Rawling. Both sides accepted Mr Turbitt as an honest witness. I did not find M. Dreux-Leblanc's suggestion that there was a change in Mr Rawling's attitude towards commercial negotiations in 1999 (a suggestion made only after Mr Turbitt's evidence had been interposed during the course of M. Dreux-Leblanc's cross-examination) convincing. Fifth, even on RDM's case, Mr Rawling was present throughout the discussions with Mr Taylor in Paris that led to the deal underlying the 1998 agreement. Sixth, Mr Rawling was undoubtedly the conduit between the writers and M. Dreux-Leblanc over financial matters. Examples of this are: his complaint on behalf of the writers over the late payment of advances and the proposal to advance Mr Taylor £20,000 when he wanted to buy a house. Seventh, Mr Rawling undoubtedly negotiated deals with record companies. Although dealing with outsiders would not have prejudiced his creative relationship with in-house producers and writers (and for that reason is perhaps of less weight), it is not compatible with a man who "hated" commercial negotiations. I also take into account the fact that Mr Rawling was cross-examined on RDM's behalf (in M. Dreux-Leblanc's presence) on the basis that there was "no doubt" that he had had discussions with Mr Taylor about the terms of his agreement in 1995.
98. I think that the truth is that, as Mr Rawling accepted in cross-examination, RDM was a collaboration between him and M. Dreux-Leblanc. Mr Rawling was the principal contact on behalf of RDM with the team in England; he was personally friendly with many of them, and he was not shy of money matters. I find no difficulty in concluding that Mr Rawling did talk to producers and writers about the main commercial terms of their deals. In his oral evidence he said that the sorts of terms he discussed were the royalty splits, the duration and the advances. The remaining terms were left to M. Dreux-Leblanc.

MIDEM

99. It is not in dispute that M. Dreux-Leblanc was a regular attender at MIDEM, a music industry trade fair held each winter in Cannes. M. Dreux-Leblanc described it as an international music market. Mr Rawling, on the other hand, said that it was only a music publishing event; and that the major record companies and production companies were not represented there. There was some doubt what the acronym MIDEM actually stood for. Mr Sutcliffe told me, on instruction, that it stood for Marché International des Editions Musicales. Its web site describes it as Marché International de la Musique. Mr Dickins, who was at one time Chairman of Warner Music UK, thought that the "D" stood for "Disques"; and described it as "an international market place for the music business". That is how MIDEM describes itself. In my judgment Mr Dickins' evidence is to be preferred. I regard this as another example of Mr Rawling's desire to downplay M. Dreux-Leblanc's contribution to RDM's activities.

The producer's agreement: what was agreed in 1995? The rival versions

100. The producer's agreement was made orally. The principal significance of the producer's agreement to the present case is whether it contained an express term to the effect that Mr Taylor would work exclusively for RDM (as RDM contends); or whether it was simply an umbrella agreement of the terms that would apply to any project that Mr Taylor independently agreed to undertake as a producer for RDM (as Mr Taylor contends).
101. Mr Taylor says that he began doing producer work for RDM before Dreamhouse was up and running. He worked on a project called "Late Night Sax" which he produced in a studio that RDM was renting at the time. He was paid a fee for that work, the amount of which was decided by Mr Rawling. At this stage, Mr Taylor says that he was working on other projects for other people; and that he told Mr Rawling that he wanted to maintain his connections. He said that he made it clear to Mr Rawling that he wished to be free to "carry on working on other things", although he accepted that the word "exclusivity" did not feature in the discussions.
102. After Dreamhouse was up and running (which would have been in late 1995) Mr Taylor did some more producer work for RDM. Following that he says that he discussed how he should be paid for future work for RDM. Mr Taylor said that all his discussions were with Mr Rawling; and that he never had any discussions with M. Dreux-Leblanc. Mr Taylor's account is of two discussions. The first centred on a split of producer fees and advances between Mr Taylor and RDM. Mr Taylor says that Mr Rawling was unsure of what an appropriate split would be; and that it was left to Mr Taylor to think about it. Mr Taylor says that the second discussion took place in Mr Rawling's office at Dreamhouse. Mr Taylor proposed a split of 60:40 and Mr Rawling replied "That's fine". Mr Taylor said that he and Mr Rawling had already had a discussion about producer royalties; and he believes that the 50:50 split was reconfirmed. He says that he and Mr Rawling agreed a 50:50 split for fees for remixes. He says that it was agreed between him and Mr Rawling that Mr Taylor's share would be calculated after deducting the costs of hiring session musicians. He and Mr Rawling also discussed how he would be paid; and Mr Rawling said that he would be paid as soon as payments were received by RDM.
103. Mr Taylor accepted that he was not in fact working for anyone else at the time of these discussions; nor did he work for anyone else during the period of his association with RDM. This was in accordance with the formal position set out in Further Information given by Mr Taylor in response to RDM's request. In answer to the question:

"Is it being alleged that [Mr Taylor] undertook producer work for anyone other than [RDM] during the period from the date of the Producer Agreement to 30 November 2000",

104. Mr Taylor answered "No". He agreed also that the advance payable under the first of his written publishing agreements, which was made at about the same time, was designed to provide him with an income until he started to earn money from producer work.
105. Mr Rawling says that there was one discussion. It took place in the lounge at Dreamhouse. He says that "eventually" he (rather than Mr Taylor) suggested a 60:40 split and that Mr Taylor agreed, as he had independently come to the same split. He says that they agreed a 50:50 split for remixes; and reconfirmed the previously agreed 50:50 split of producer royalties. He says that he does not remember any discussion between himself and Mr Taylor about whether he was bound exclusively to RDM, but that there was never any question of his working for a retainer. Mr Rawling did not mention any discussion of the details of what costs RDM could deduct before calculating Mr Taylor's share; nor the timing and mechanics of payment.
106. M. Dreux-Leblanc's account is radically different. He says that he had a few discussions with Mr Taylor during the summer and autumn of 1995. He says that discussions about the producer work and the publishing agreement went hand in hand. He says that the agreement was concluded in the kitchen at Dreamhouse at about the time that the studio was up and running; and that both Mr Taylor and Mr Rawling were present with him. He says that he and Mr Taylor ran through the main aspects of the deal; and that the three of them shook hands and celebrated over a glass of champagne. According to M. Dreux-Leblanc's main witness statement the main points of the agreement were the following:

i) RDM did not guarantee to provide Mr Taylor with work, although he was expected to be kept busy;

ii) Mr Taylor would be RDM's in house producer, and the relationship would be unworkable unless RDM could rely on him to work on RDM projects exclusively;

iii) Mr Taylor would have to accept whatever work RDM asked him to do;

iv) Mr Taylor would be paid 40 per cent of advances and fees received by RDM for projects on which he did production work, and 50 per cent of producer royalties received by RDM. He would also be paid 50 per cent of any fee received by RDM for remixes;

v) Any sums payable to Mr Taylor would be calculated after deducting third party costs (i.e. costs paid by RDM to third parties, such as session musicians, hirers of equipment and so on);

vi) RDM would account to Mr Taylor for producer royalties at six monthly intervals, by preparing statements to 30 June and 1 December each year and paying him within 90 days of the end of the accounting period.

107. In his witness statement M. Dreux-Leblanc added that it was obvious that if this arrangement was to work sensibly, Mr Taylor would have to give RDM six months' notice of his intention to terminate it. He did not, I think, suggest that a term about notice was actually agreed. In legal terms it was an implied term, rather than an express one. RDM's pleaded case asserted that "there was no discussion as to any period during which [Mr Taylor] was to provide his services on an exclusive basis". The commercial logic underpinning the suggested implication is that the lead-time for obtaining production commissions is such that RDM might well have to market a producer for a particular project over several months before an expression of serious interest on the part of the record company matured into a completed commission in the studio. The factual basis for this assertion was, in my judgment, established by the evidence. M. Dreux-Leblanc's own evidence in this respect was supported by the oral evidence of Nick Phillips (current Chairman of Warner Music UK) and Rob Dickins (his predecessor as Chairman of Warner). Mr Phillips agreed that the lead time for a project could "easily" be 3 months and that it could be 6 months. Mr Dickins' evidence was that the lead time could be "considerable", that it could be 3 months, it could be 6 months, and it could be longer still. Messrs Phillips and Dickins also confirmed that the importance of a production company to a record company depends on its ability to offer the services of a particular producer. In the record company's mind, it is the identity of the producer, not the production company, that matters when choosing who will produce a record. The production company is expendable, save to the extent that it controls the services of the producer. Consequently, a production company's reputation within the industry is in large measure a reflection of the reputation of its producers. Accordingly, RDM argues that there is a commercial imperative for Mr Taylor to have been available to undertake projects for which he was nominated by RDM. This in turn leads to two further commercial imperatives. First, that Mr Taylor would not be entitled to offer his services to anyone else (otherwise there would be a risk that he would not be available). Second, that once nominated to work on a project, Mr Taylor would have to see it through to the end (and hence would have to give notice before terminating the producer's agreement).

The producer's agreement: discussion and conclusions

108. One of the more surprising features of M. Dreux-Leblanc's oral evidence was his evidence about the duration of the producer's agreement. He said (and repeated when I asked him whether it was his evidence) that the producer's agreement was for a fixed term of two years. He explained that it was co-terminous with the publishing agreement. This evidence was directly contrary to RDM's pleaded case that there was no discussion about the period of the producer's agreement; and, to my mind, fatally undermines the suggestion that it is necessary to imply a term that the agreement was terminable on reasonable notice.
109. I also found it surprising that M. Dreux-Leblanc refused to contemplate even the possibility that Mr Taylor and Mr Rawling might have discussed the terms on which Mr Taylor might undertake producer work for RDM. After all, it was Mr Rawling who "discovered" Mr Taylor; it was he who was keen to bring him into the RDM team; and Mr Rawling and Mr Taylor were in London, whereas M. Dreux-Leblanc was in Paris. This aspect of M. Dreux-Leblanc's evidence was the more surprising because in cross-examination of Mr Taylor, Mr Sutcliffe made it clear that RDM accepted that Mr Taylor and Mr Rawling had had discussions about the terms on which Mr Taylor was to be a producer. M. Dreux-Leblanc was present in court throughout the cross-examination. Mr Turbitt, who was called as a witness by RDM, said that his discussions (in 1999) about the terms of his producer's agreement had been conducted with Mr Rawling; and I accept that evidence.
110. I add also that M. Dreux-Leblanc's evidence about his recollection of the negotiation of the producer agreement was far from clear. He was asked on a number of occasions what the terms of the agreement were. At first his description was consistent with Mr Taylor's case as to the nature of the terms agreed; that is the payment terms which would apply in relation to work which he undertook for RDM. Subsequently, however, he included the term about exclusivity. I am bound to say that I found his explanation of what he meant by "exclusivity" impossible to understand, in so far as it went beyond saying that a producer would not be allowed to work at RDM's studio or on RDM's equipment, for a rival production company. In addition, it was not until Mr Mill prompted him that he included the term about Mr Taylor having to accept work for which he was nominated. There were also a number of features of his evidence that I found impossible to reconcile. First, it is common ground that Mr Taylor's share of producer royalties was agreed at 40 per cent. The other producers received 35 per cent. Why did Mr Taylor receive more? M. Dreux-Leblanc said that it was because he was "the star producer". Yet M. Dreux-Leblanc's state of mind in 1995 was that Mr Taylor was young, inexperienced and untried. He had no knowledge of Mr Taylor's previous successes. There was nothing that he knew that could have led him to believe that Mr Taylor would become (let alone was) RDM's "star producer". Indeed the very fact that, in M. Dreux-Leblanc's view, Mr Taylor was young, inexperienced and untried was the justification for M. Dreux-Leblanc's evidence that RDM had only offered Mr Taylor a two year, rather than a three year, deal. On the other hand, Mr Rawling was very enthusiastic about Mr Taylor's talents. Second, M. Dreux-Leblanc said that he believed that Mr Taylor had taken legal advice on the producer agreement. Yet Mr Taylor not only had no written producer's agreement; he did not even have a written summary of its terms. M. Dreux-Leblanc's explanation for the lack of a written agreement was that producers did not want written agreements for tax reasons. Although he did not articulate what those tax reasons were, it may have been (as Mr Taylor's accountant indicated in the autumn of 2000) because producers did not want to take the risk of being classified by the Inland Revenue as employees. But the point is, that since Mr Taylor was the first producer engaged by RDM in England, I do not see how M. Dreux-Leblanc could have known that at the time when the producer agreement was made in 1995.
111. It also seems to me to be inherently implausible that an agreement which bound a producer to work exclusively for RDM and which bound him to accept any work for which RDM nominated him but without obliging RDM to give him any work, would not be recorded (however informally) in writing. RDM's case on notice also seems to me to sit uneasily with the remainder of the alleged terms of the producer agreement. There is no question but that the publishing agreement was for a fixed term. Thus the advances would cease to be payable at the end of the fixed term. This means that there would be no guaranteed income for Mr Taylor after the publishing agreement came to an end. If he were still bound by the producer's agreement until notice of three or six months had been given, RDM would have no obligation to supply him with work, and Mr Taylor might have to wait until well after the notice had expired before being paid for producer work carried out during the notice period. Moreover, if he were nominated to do producer work during the period of notice, the commercial logic underpinning RDM's case that a notice period must be implied to make the contract workable would seem to lead to the conclusion that the notice period would be capable of yet further extension.
112. In addition, an agreement under which Mr Taylor bound himself both not to work for anyone else and also to accept whatever work RDM allocated to him does not sit easily with the description "self-employed" producer which RDM gave to its accountants on 18 May 1999. I have considered whether the description "in-house producer" which Mr Rawling used in his faxes to M. Dreux-Leblanc of 2 March and 18 April 1995 should lead me to a different conclusion; but I do not think that it should. Quite apart from anything else, the fax of 2 March equated the idea of an "in house producer" with the arrangement with Gary Miller. No one suggested that Mr Miller was bound to RDM exclusively.
113. There are, to be sure, some discrepancies between Mr Taylor's evidence and Mr Rawling's evidence. For instance, each of them claimed the responsibility for having proposed the 60:40 split of producer royalties; and whereas Mr Taylor said that there was a discussion in which Mr Taylor made it clear that he would be working on other things, Mr Rawling could not remember such a discussion. These discrepancies were present on the face of their witness statements: they were not discrepancies that emerged only in cross-examination. In my judgment, these discrepancies, far from undermining the reliability of their evidence, reinforce it. They are exactly the sort of discrepancies one would expect of witnesses trying to recall an oral agreement made some eight or nine years before the trial. If (as RDM contends), Mr Taylor and Mr Rawling had put their heads together to concoct a story, they would surely have done a better job of making their evidence consistent. The essentials of their evidence were consistent, despite these minor discrepancies.
114. In short, I accept Mr Taylor's evidence about the way in which the producer agreement came to be negotiated, and the terms on which it was made. I find, therefore, that the terms of the producer agreement between RDM and Mr Taylor were negotiated by Mr Taylor and Mr Rawling. It was an agreement limited to the financial terms on which Mr Taylor would undertake production work on behalf of RDM. In particular it did not bind Mr Taylor to work exclusively for RDM; and it did not oblige him to undertake work which he did not agree to undertake. Moreover, since Mr Taylor would have to agree to undertake production work for RDM on a project by project basis, it follows that there is no need to imply any term about notice. He would, of course, have to complete any project that he had agreed to undertake. (I shall return to the precise content of this obligation when dealing with the Cher project). The terms of the agreement were:

i) Producer fees and advances would be split 60:40

ii) Producer royalties would be split 50:50;

iii) Fees for remixes would be split 50:50.

115. There are two minor issues arising under the producer agreement: the deductions that RDM were permitted to make from producer income before accounting to Mr Taylor; and the mechanics of accounting.
116. Mr Taylor says that deductions were to be limited to the cost of musicians; although he accepts that by a subsequent agreement RDM became entitled to deduct a sum of £150 as being the notional cost of tapes incurred by RDM. RDM says that the agreement was that it would deduct all third party costs attributable directly to the production (including, for example, musician hire, equipment hire, and tape costs), but not overhead costs such as power, rates, heating, salaries and the like. The most cogent evidence in support of Mr Taylor's case is a letter that M. Dreux-Leblanc wrote to RDM's lawyers on 2 November 2000 (before any dispute arose). In that letter he said:

"Recording fund: (either is producer advance, studio time, tapes …) 40% of the net money received (after payment of outside musicians and backing vocalists)".

117. M. Dreux-Leblanc said that this letter was a mistake. But M. Dreux-Leblanc also accepted in cross-examination that there was "an agreed notional tape cost of £150" that was deducted. The deduction of a notional fixed tape cost is, to my mind, inconsistent with a deduction of actual costs (which might, of course, have been greater or less than £150). I also consider that M. Dreux-Leblanc's recollection in 2000 (in a letter to RDM's own lawyers) is likely to be more reliable than his recollection four years later in contested litigation. I find that it was agreed that Mr Taylor's share would be calculated after deducting the cost of hiring session musicians (and backing vocalists), and £150 as the notional cost of tapes, but not other third party costs.
118. The remaining issue under this head relates to the mechanics of accounting. According to Mr Taylor, Mr Rawling said that he would be paid as soon as payments were received by RDM. Mr Rawling did not recall any such discussion. As I have said his description of the sort of terms that he discussed with producers and writers were the royalty splits, the duration and the advances. I do not think that Mr Rawling would have got involved in the minutiae of accounting dates. Moreover, I accept RDM's case that an agreement such as Mr Taylor alleges would have been administratively difficult. Given the volume of accountings that XIII Bis has to perform, it is necessary to account according to regular, fixed accounting periods. I think that Mr Taylor's recollection is at fault on this issue. I accept therefore, that the initial position was that RDM would account to Mr Taylor by preparing six-monthly statements for the periods 1 January to 30 June and 1 July to 31 December with payment to be made within 90 days of the end of the accounting period.
119. Although it is out of chronological order, I deal now with the changes to the initial position. Some time in late 1998 or in 1999 Mr Taylor and M. Dreux-Leblanc had a discussion about the payment of Mr Taylor's producer royalties. The contents of this discussion are reflected in M. Colas' letter of 5 November 1999 to Mr Taylor. He said:

"Congratulations, we anticipate your statement as you have discussed with Laurent.

We are all happy with this.

We hope to anticipate the next statement royalties but in the worst situation you will receive the statement on the first of July like the last time."

120. The next statement was in fact sent on 26 June 2000 (for the first semester); and the one after that on 9 November 2000 (for the second semester).
121. M. Dreux-Leblanc accepts that he and Mr Taylor had a discussion about changing the accounting dates. He says in his witness statement that the agreement they reached was that accounts would be prepared for the periods 1 May to 31 October (payable by 1 January) and 1 November to 30 April (payable by 1 July). He places the agreement some time after November 1998. Mr Taylor suggests in his witness statement that his agreement about accounting was made with Mr Rawling. I think that this is inherently unlikely, given the respective roles of Mr Rawling and M. Dreux-Leblanc, and it is in any event contradicted by M. Colas' contemporaneous letter. Mr Taylor also says that the agreement was that RDM would account to him within one month of receipt by RDM of its royalties from the record companies. M. Dreux-Leblanc's answer is that RDM would not have agreed (and did not agree) to account in a piecemeal fashion. This seems to me to make commercial sense. I also think if Mr Taylor had made the agreement which he said he made, Mr Rawling would have referred to it in his fax of 14 October 2000, instead of simply passing on Mr Taylor's "request" to be paid within one month. Although I do not accept M. Dreux-Leblanc's evidence in cross-examination that the payment in November 1999 was a "one-off" payment, I do accept the evidence in his witness statement that I have summarised.
122. In short, I find that some time between November 1998 and November 1999 Mr Taylor and M. Dreux-Leblanc agreed that in future accounts for producer royalties would be prepared for the periods 1 May to 31 October (payable by 1 January) and 1 November to 30 April (payable by 1 July).
123. RDM accepts that there was an implied term of the producer agreement that it would provide Mr Taylor with details of monies it received in relation to advances or fees within a reasonable time of completion of a project, when all necessary information was available, and that it would pay any such sums due to him within a reasonable time of receipt of his invoice. I did not understand Mr Taylor to dispute that if I did not accept his case on express agreement (which I have not), a term to this effect would be implied.

The cover clause: the rival versions

124. Each of the three publishing agreements that Mr Taylor signed contained a "cover clause". If a composition was a "cover record" as defined, then Mr Taylor would be entitled to a lower share of royalty. If applied strictly in accordance with its terms everything (or almost everything) that Mr Taylor wrote would have fallen within the definition, because Mr Taylor would not have been a featured performer. However, it is common ground that the cover clause was not intended to be strictly applied; and that Mr Taylor was told that. What and when he was told is in dispute. Although the discussion was related to the original 1995 publishing agreement, it is common ground that, whatever it was, it also applied to the 1997 and 1998 agreement.
125. M. Dreux-Leblanc says in his witness statement that he believes that the discussion about the cover clause took place after the 1995 agreement was signed. It was signed in Paris, and Mr Taylor and his fiancée came over for the signing. He says that before it was signed, Mr Taylor wanted to make minor changes to the draft; and that he sat at M. Dreux-Leblanc's laptop computer for that purpose. Since Mr Taylor did not amend the cover clause, M. Dreux-Leblanc believes that the conversation must have taken place after the agreement was signed.
126. According to M. Dreux-Leblanc's witness statement the substance of the conversation was as follows. Mr Taylor pointed out that if the cover clause were applied, it would always operate to reduce his royalties. M. Dreux-Leblanc explained that that was not the intention and that RDM would only apply it:

"where RDM did not produce the recording of the composition, or was obliged to pay a fee to a third party in respect of the recording, or its margin was otherwise reduced from what it would have been had the recording been produced at RDM by an in house producer."

127. These three circumstances are clearly expressed here as alternatives. M. Dreux-Leblanc refers to similar discussions that he had with others of RDM's writers later on.
128. Mr Taylor's account is different. He says that following his meeting with Mr Cornish, the lawyer whom Mr Rawling had recommended to him, he became concerned about two aspects of the contract, one of which was the cover clause. He mentioned these concerns to Mr Rawling; and Mr Rawling said that the cover clause would only apply "where a sub-publisher had to be paid by RDM." Mr Taylor places this conversation before he signed the agreement. Mr Rawling gave no evidence about this conversation. Mr Taylor agrees that he went to Paris to sign the agreement. M. Dreux-Leblanc was sitting at his laptop with the draft agreement on the screen. He asked Mr Taylor whether it was "OK". He says that he told M. Dreux-Leblanc that he was not comfortable with the cover clause. M. Dreux-Leblanc told him that the clauses were designed to protect RDM in circumstances where one of RDM's sub-publishers, rather than RDM, caused a recording to be made because in such a situation RDM would have to give the sub-publisher something extra. Mr Taylor was reassured by that. He did not ask M. Dreux-Leblanc to change the agreement; and M. Dreux-Leblanc did not volunteer to do so.

The cover clause: discussion and conclusions

129. RDM's case, as originally pleaded, accepted that the discussion about the cover clause took place in Paris on the occasion of the signing of the 1995 agreement. M. Dreux-Leblanc's evidence to the effect that the discussion took place sometime later was based, in my judgment, on an inference he made that, because there was no amendment to the agreement and no side letter recording the concession, the discussion must have been later. The lack of amendment to the agreement itself does not justify the inference, because the cover clause in the agreement itself was never amended. Any concession was recorded by a side letter. Nor do I consider that the lack of a side letter justifies the inference as to timing. That fact is that, whenever the discussion took place, no side letter was produced. Although the lack of a side letter might have been relied on to justify an inference that the cover clause was not discussed at all, both sides agree that such a discussion took place.
130. In his oral evidence M. Dreux-Leblanc was asked what he told Mr Taylor about the cover clause. He replied "Exactly as we apply it when we have to pay a third party". He went on to say that the cover clause "is applied whenever we have to pay a third party when our margin is reduced." The remainder of his lengthy explanation seemed to me to be directed to what the contract did or did not say, rather than to what he told Mr Taylor. I found it extremely difficult to follow, and I have no doubt, that if, as M. Dreux-Leblanc said, he gave a similar explanation to Mr Taylor, the latter would have found it equally difficult to follow.
131. I think it probable that, whatever M. Dreux-Leblanc said, it is likely to have been an expression of RDM's general policy, rather than a "one-off" deal with Mr Taylor. In other words, I think that it is likely that RDM would have treated all its writers alike. So I consider that I am entitled to look at what RDM told other writers in assessing the rival versions of what M. Dreux-Leblanc told Mr Taylor. Mr Barry's evidence was that Mr Rawling told him many times that the cover clause would only be used "when a sub-publisher had procured a piece of work and was therefore going to get an increased share as an incentive". In 1999 RDM sent a letter to Mr Stack in which M. Dreux-Leblanc explained that the cover clause would only be applied:

"if we need to pay directly or indirectly a third party. For sake of clarity, we have been using or will be using this Clause only if we have to pay permanently or not permanently somebody whom help us to procure this particular cover and only if our company margin is less than usual."

132. In July 2000 a letter in similar terms was proposed for Gary Miller; and in 2001 and 2002 similar letters were sent to other writers. Also in 2002, after a complaint by Mr Taylor about the application of the cover clause, RDM replied:

"Future royalties will be payable to you at the rate of 70% of music publishing income……to the exception of the cover clause applied by our local subpublishers in their territories."

133. The discussions of which Mr Barry gave evidence are entirely consistent with Mr Taylor's case; and although the letters sent to other writers indicate that the cover clause will be implemented in a broader range of circumstances than Mr Taylor suggests, that range is not nearly as wide as M. Dreux-Leblanc suggests. But the letter sent to Mr Taylor by RDM in 2002 is consistent with his case. I prefer the evidence of Mr Taylor on this issue.
134. I find, therefore, that it was agreed that the cover clause would apply only where a sub-publisher procured a recording, in consequence of which RDM's margin was reduced.

The publishing agreement: what was agreed in 1998? The rival versions

135. Before attempting to interpret the terms of the written agreement it is convenient to deal with the terms of the oral agreement that preceded it. RDM say that the oral agreement was made in Paris, between M. Dreux-Leblanc and Mr Taylor, on a visit that Mr Taylor made when M. Dreux-Leblanc invited him to one of the World Cup matches being played at the Stade de France. M. Dreux-Leblanc says that a term of three years was expressly agreed. Mr Taylor says that the visit to Paris was a purely social occasion and that no business was discussed at all. He says that the 1998 agreement had its genesis in the kitchen at Home Park House, and that all that was mentioned was an increase in his advance.
136. There are a few areas of common ground:

i) Mr Taylor, Mr Jeff Taylor and Mr Rawling travelled to Paris at M. Dreux-Leblanc's invitation to see a World Cup match;

ii) Before the match they had dinner in the VIP restaurant at the Stade de France;

iii) After the match they went to a bar, and then to M. Dreux-Leblanc's house in Neuilly;

iv) Once at the house Mr Taylor, Mr Rawling and M. Dreux-Leblanc sat out on the terrace talking into the night;

v) The English party returned to London on the following day.

137. Which match? This may seem a trivial issue, but it does have a significant bearing on the reliability of the witnesses. In addition the rival candidates are either side of 1 July 1998, which was the date on which Mr Rawling reported to M. Dreux-Leblanc on progress with Cher's forthcoming single. M. Dreux-Leblanc had, I think, bought tickets to all the matches that were to be played at the Stade de France. He saw the World Cup as a marketing opportunity for XIII Bis. Mr Rawling went to three of the matches, in company with different people. Mr Taylor only went to one. Mr Taylor says that the match he saw was Denmark v. Nigeria, which took place on 28 June. He produced a ticket to that match (which he says was Mr Jeff Taylor's ticket). Mr Jeff Taylor said that, as he is a keen football fan, and the Denmark v. Nigeria match is the only World Cup match he has ever been to, he kept the ticket in his collection of football tickets. M. Dreux-Leblanc says that the match was France v. Croatia, which took place on 8 July. He produced a ticket and a programme which he exhibited to his witness statement. However, in a supplemental witness statement he says that the match was identified by his personal assistant (who has since left RDM) and he does not know what documents she looked at to identify the match; and that the ticket was in fact disclosed by Mr Taylor. The ticket disclosed (which was indeed the one exhibited to M. Dreux-Leblanc's witness statement) was in fact a ticket to the Denmark v. Nigeria match. However, M. Dreux-Leblanc remained of the view that the match they attended was the France v. Croatia match, although he did not seem to me to have any basis for his belief other than trust in his PA.
138. The dinner. Mr Taylor says that the VIP restaurant was noisy. The hospitality section was packed and there were television screens showing previous matches. They were only yards from a door opening into the stadium. It would have been impossible to discuss business, even if anyone had wanted to. Mr Rawling says that there were no discussions about business. All the conversations revolved around football. He says that at that stage the Cher project had not yet been released and "we had no idea we would even have the first single, let alone that it would be a big hit, so there would have been no reason to discuss Mark's publishing agreement". Mr Jeff Taylor says that he cannot recall any discussion about Mr Taylor's publishing agreement at the dinner.
139. M. Dreux-Leblanc's account is different. He says that by mid 1998 it was evident that the Cher project would be a major success. The expected success would have an impact on Mr Taylor's reputation both as a producer (since he had produced "Believe") and also as a songwriter (since he had a writing interest in fours songs on the album). It therefore made sense to try to secure a new, longer-term writing deal with him to tie him in to a relationship with RDM before other publishers were snapping at his heels. M. Dreux-Leblanc says that from about the middle of 1998, in view of the expected success of the Cher album he began to encourage all RDM's writers to enter into new agreements, and that in effect he treated Mr Taylor in the same way.
140. M. Dreux-Leblanc says that he invited Mr Taylor and the others to the France v. Croatia match and that, at the pre-match dinner, he offered Mr Taylor a new deal. He says that he explained to Mr Taylor that he was prepared to increase his advances and to change the frequency of payment from semi-annual to quarterly, but that in return he wanted a three year deal. He does not say that agreement was reached there and then. He says that the restaurant was well insulated against noise, and that although previous matches were being screened, the screens were mute. The restaurant was no more noisy than any other restaurant, and a business conversation was possible.
141. After the match. All the witnesses agree that after the match, and the visit to the bar, the party returned to M. Dreux-Leblanc's house in Neuilly. They agree that Messrs Taylor and Rawling, and M. Dreux-Leblanc sat up on the terrace talking. Mr Taylor said that they talked about nothing in particular, just general conversation. Mr Rawling says that everyone was very merry and they talked mainly about football.
142. Again, M. Dreux-Leblanc's account is very different. He says that the discussions about Mr Taylor's deal continued. Mr Taylor asked for an advance of £25,000 and M. Dreux-Leblanc agreed, provided that the agreement was for three years.
143. The following day. Mr Taylor says that he was a little the worse for wear on the following day and that "basically we just got up and left". Mr Jeff Taylor says that they had breakfast and then got a cab to the station to catch the train back to London. He says that Mr Taylor never mentioned to him anything about a new publishing deal with RDM. M. Dreux-Leblanc, on the other hand, says that on the day after the match he and Mr Taylor agreed the deal. Mr Taylor would sign a three year deal in return for which RDM would pay him advances of £25,000 on fees and royalties per annum, payable quarterly. He says that they agreed that the new agreement could come into effect on 1 December 1998.
144. In the kitchen. Mr Taylor says that the genesis of the 1998 agreement was a meeting in the kitchen at Home Park House in October 1998. By this time it was obvious that "Believe" was "a massive hit". The single had gone to number 1 in the charts in the fourth week of October. M. Dreux-Leblanc and Mr Rawling were standing in the kitchen. They started up a conversation, saying that everything was great with the Cher record. Mr Rawling did most of the talking. He said that RDM wanted to enter into a new agreement and would increase the advance. They suggested £12,500 at which Mr Taylor raised his eyebrows and looked surprised. In response to his body language they raised their offer during a period of some 30 seconds or so to £25,000, without anything being said by Mr Taylor. When the bidding reached £25,000 Mr Taylor said "fine", even though he had been expecting an advance of £50,000. His explanation was that he had been told that £25,000 was the size of the advance that Mr Barry was getting. He says that nothing was said about the duration of the new agreement, which he assumed would be two years, like the previous ones. Nothing was said about accounting dates.
145. Mr Rawling says that signing Mr Taylor on a new contract was his idea. He was prompted by the success of the Cher album, and wanted to sign Mr Taylor for a new two year term right away before anyone else tried to tempt him away. He says that M. Dreux-Leblanc was on a visit to England and that, while they were standing in the kitchen at Home Park House, he told M. Dreux-Leblanc that they had to sign Mr Taylor again. He says there was no detailed negotiation of the terms of the agreement. In a period of minutes he and M. Dreux-Leblanc raised the amount of the advance to £25,000. He says that apart from that not much was said; and he does not remember Mr Taylor saying anything at all.
146. M. Dreux-Leblanc says that he does not believe that this conversation took place.
147. Preparation of the written agreement. M. Dreux-Leblanc says that he prepared the new written agreement in November 1998, using a previous RDM agreement as his precedent. He changed clause 11 to reflect the new dates for payment of the quarterly advances. He added a new clause 11 (c) (which had been marked "intentionally deleted" in the previous agreement) to deal with the payment of advances in the third year of the term. He added a new clause 20, which referred to Mr Taylor's previous agreements. However, he says that he forgot to change clause 4 which retained its description of the term of the agreement as "2 (two)" years.
148. Signing the agreement. M. Dreux-Leblanc says that he took copies of the new agreement with him to London in December 1998. He says that the new agreement was signed at Home Park House. He handed a copy of the agreement to Mr Taylor in the lounge in front of his studio there, and Mr Taylor immediately looked at clause 11 (which dealt with the advances). Mr Taylor said that he was happy with it. Later Mr Taylor came through to the kitchen where he signed four copies of the agreement. M. Dreux-Leblanc gave Mr Taylor a cheque for £6,250 as the first quarterly instalment of the advance.
149. Mr Taylor agrees that he signed the agreement in the kitchen at Home Park House. However, he says that he just turned to the signature page of each copy and signed. He says that he was not provided with a draft of the agreement before signing it, and he did not check it. He also says that he was not given a cheque for the advance at that time, but only received it subsequently. It was on receipt of the cheque that he realised that RDM were paying him quarterly, in line with its other writers. Still, however, he did not look at the agreement which, by then, he had put in a cupboard at home.
150. Although Mr Rawling signed the agreement as a witness to the signatures, he says he has no recollection of how or where it came to be signed.

Was there an agreement at the World Cup match? Discussion and conclusions

151. Which match? The first question I must decide is: which match? M. Dreux-Leblanc accepts that he has no personal recollection. He is unable to say what materials his PA consulted in order to conclude that the match in question was France v. Croatia. M. Dreux-Leblanc has produced his meeting schedules for MIDEM which record in detail who he met and where. No similar documents have been produced relating to the World Cup. He says that he has no interest in football. On the other hand, Mr Jeff Taylor in particular was a keen football fan. His evidence that the ticket to the Denmark v. Nigeria match was his was unchallenged. France was not only the host nation in 1998 but also the eventual winner of the tournament. France v. Croatia was one of the semi-finals. Even to a non-football fan, to see one's own national team win its way into the World Cup final would, one might have thought, have been a memorable event. If the match was France v Croatia, it is, to my mind, very surprising that M. Dreux-Leblanc had no personal memory of it. To a keen football fan, it would have been especially memorable.
152. I conclude that the match that Mr Taylor attended was Denmark v. Nigeria on 28 June 1998.
153. A number of consequences flow from this finding. First, in his witness statement M. Dreux-Leblanc said:

"Since we had recently (in May 1998) paid Mark the second instalment of the advance payable for 1997/8 under the 1997 agreement, and in order that RDM did not have to alter its dates of account to Mark, we agreed that the new agreement would take effect from the anniversary date of the 1997 Agreement – that is, 1 December 1998."

154. As originally served, this statement was consistent with either match. However, before verifying it, M. Dreux-Leblanc changed "May 1998" to "1 July 1998", which was indeed the date on which Mr Taylor was paid his advance. But if (as I find) the match took place on 28 June, the advance had not been paid by the date of the match. Consequently, the rationale for not changing the accounting dates, and for deferring the start of the 1998 agreement, falls away.
155. Second, if (as I find) the match took place on 28 June, M. Dreux-Leblanc would not have received Mr Rawling's fax of 1 July, in which he reported on his meeting with Warners, and informed M. Dreux-Leblanc that the first Cher single would be "Believe". Accordingly, although it would have been known that "Believe" would appear on the album, it would not have been known that it was to be individually promoted as the first single. It is true that Warners had high hopes for the album when the masters were delivered earlier in the year; but the process of selection of the lead single was evolving. The commercial driver towards signing up Mr Taylor for a further period as early as June would not, therefore, have been as powerful as M. Dreux-Leblanc claimed.
156. Third, M. Dreux-Leblanc accepted that Mr Taylor did not complain on the occasion of the match that his advance was late. Of course, if the match had taken place on 8 July, he would have been recently paid. But if (as I find) the match took place on 28 June, then the advance was nearly a month late. So the absence of complaint by Mr Taylor suggests that he was not as worried about money as M. Dreux-Leblanc says.
157. The dinner. M. Dreux-Leblanc says that the terms of the new agreement were discussed at the dinner before the match. It is common ground that Mr Jeff Taylor was present at the dinner. It is therefore inherent in M. Dreux-Leblanc's account that the new agreement was discussed in Mr Jeff Taylor's presence and, very probably, in his hearing. M. Dreux-Leblanc said in his oral evidence that he was entirely comfortable with discussing a new agreement in front of Jeff Taylor. However, this evidence is undermined by two other pieces of M. Dreux-Leblanc's own evidence. First, he explained that he did not discuss a new agreement with Mr Barry when the latter came over to a World Cup match in June, because Mr Barry was not alone. M. Dreux-Leblanc could not remember whether he was accompanied by Steve Allen (a client) or Steve Torch (another writer). This is in marked contrast to his feeling entirely comfortable discussing Mr Taylor's new agreement in front of Jeff Taylor. M. Dreux-Leblanc's subsequent assertion that it was not possible to discuss a writer's agreement in front of a client (Steve Allen) did not sit well with his evidence that he could not recall whether it was Steve Allen or Steve Torch who accompanied Mr Barry to the match. It also, I think, undermined his evidence that, so far as he was concerned, the only reason for inviting people to the matches was to do business with them. Second, he said that after the match, the purpose of the visit to the bar was to pick up a girl to keep Jeff Taylor occupied while "Mark, Brian and I discussed Mark's agreement." His explanation for this was that:

"we have stopped to talk about the agreement in front of Jeff at the restaurant … and to continue more deeply it was better that Jeff was having fun."

158. I did not find this evidence, or his explanation of why he was confident that only Mr Jeff Taylor would pick up a girl (which would in turn give M. Dreux-Leblanc the opportunity to talk business with Messrs Rawling and Taylor), convincing.
159. M. Dreux-Leblanc said that in the course of the discussion at the restaurant he explained to Mr Taylor:

"that I was prepared to increase his advances and to change their frequency of payment from semi-annual to quarterly instalments, but in return I wanted to increase the term of the new agreement to three years."

160. Expressed in this way, M. Dreux-Leblanc was presenting the change in frequency of payments from semi-annual to quarterly as being an advantage to Mr Taylor and one of the benefits in return for which the term of the agreement was to be increased to three years. This only makes sense if the payments are payments in arrear. But they were not. They were payments in advance. It is self evident that it was to Mr Taylor's benefit to receive a payment of six months' advance at the beginning of a six month period rather than to receive a payment of three months' advance and then to wait another three months for a second payment. Eventually, after considerable resistance, M. Dreux-Leblanc accepted this in cross-examination. This was not impressive evidence.
161. There are, in my judgment, two features of the contemporaneous correspondence that point away from RDM's case. The first is Mr Rawling's fax of 1 July. This fax, written only three days after the match, makes no reference to any agreement having been concluded between RDM and Mr Taylor. On the contrary, it warns M. Dreux-Leblanc that he is playing "a very dangerous game and one which the song writers would be very upset about" in not paying advances promptly. The second is Mr Rawling's fax of 31 August, in which he passed on Mr Taylor's request to borrow money to buy a house. Mr Rawling said:

"He has discussed with me the possibility of getting £20,000 together from either his outstanding moneys or advance on Further Productions i.e. we owe him money from McGANNS and the Previous productions and royalties (GINA) I have said I will talk to you but if we can do it of course it solidifies our Future with MARK even more."

162. This fax is striking both for what it says, and for what it does not say. It does not say that the money could be lent on the basis of an advance under the publishing agreement (which on RDM's case had been recently concluded); it refers only to an advance against future production fees. Yet it seems to me that if a new publishing agreement had been recently concluded, an acceleration of the advance due under that agreement would have been the obvious source of lending. In addition it says that a loan would "solidify" RDM's future with Mr Taylor even more. If Mr Taylor had just agreed to a new exclusive publishing deal for a further three years, the future would hardly have needed solidifying. Moreover, M. Dreux-Leblanc explained in evidence that it was difficult for a writer to borrow money from a bank against future royalties; and that banks preferred to lend against fixed income. This seems to me to be entirely plausible. But it underlines the point that if an agreement had already been concluded with Mr Taylor for greatly increased advances, it would have been of considerable help to him in raising money to buy a new house for that agreement to have been put in writing (or at least confirmed by letter), even if the first advance was not due for a few months.
163. The amount of the advance under the publishing agreement was increased to £25,000 a year. Both sides agreed that this was done to bring Mr Taylor's advances in line with Mr Barry's. However, Mr Barry did not make a new agreement with RDM until October of 1998; and the making of that agreement was fortuitously precipitated by Mr Barry's need for money. This, too, points away from the contention that the terms of the new deal were agreed in June (or, for that matter, in July).
164. There were also discrepancies between M. Dreux-Leblanc's evidence and the account first given by RDM's solicitors. For convenience, I set it out again:

"Contrary to Eaton's assertion you started negotiating the terms of the Third Publisher's Agreement during July 1998 when you stayed with Mr Leblanc's at his home in Paris with Brian Rawling during the World Cup. You discussed changing the existing contractual terms between you under the Second Publishing Agreement and entering into a three year deal with increased advances being made to you in the sum of £25,000. Mr Leblanc amended the Second Publisher Agreement on his lap-top to add the provisions of clause 11 (c) and to amend the frequency of the payments of the advances. He omitted to amend the clause 4 (a)(i) regarding the term. You were particularly interested in the provisions regarding the advance and therefore our client is surprised that you did not notice what you say is an error. The hard copy of the Third Publishers Agreement was signed by you thereafter, on 1^st December 1998." (emphasis added)

165. I make the following comments on this letter:

i) It alleges that negotiations "started" at the World Cup; not that a deal was concluded;

ii) The impression conveyed by the second italicised passage is that M. Dreux-Leblanc amended the agreement on his lap-top in Paris at the World Cup and that Mr Taylor looked at the amendments on the lap-top, rather than in hard copy form;

iii) It does not allege that Mr Taylor looked at clause 11 in hard copy form on the occasion on which he signed the agreement.

166. As to the first point, it is RDM's case that negotiations were not only started, but were concluded in Paris. M. Dreux-Leblanc does not accept that any further negotiations took place after the World Cup. If negotiations only started in Paris, the claim to rectify would obviously be much weaker. As to the second point, M. Dreux-Leblanc's evidence (corroborated by the date in the footer of the document) is that he made the amendments in November, not in June or July; and he did not suggest that Mr Taylor saw the amendments on his lap-top. As to the third point, M. Dreux-Leblanc's evidence was that Mr Taylor looked at clause 11 on the day he signed the agreement.
167. There were also discrepancies within M. Dreux-Leblanc's evidence itself. For instance in his witness statement he said that the agreement was concluded on the morning of the day after the match. In his oral evidence he said that it was concluded on the same evening as the match on the terrace of his house. I did not find plausible M. Dreux-Leblanc's suggestion that he did not understand Mr Mill's question about this. Similarly, at some points M. Dreux-Leblanc said that Jeff Taylor was present during the discussions on the terrace; and other points that he was not. M. Dreux-Leblanc's suggested reconciliation, namely that Jeff Taylor saw discussions going on when he came to get drinks from the terrace, did not ring true.
168. There are also a number of non-events which point away from RDM's case. First, M. Dreux-Leblanc did not tell anyone within RDM that he had reached a new deal with Mr Taylor in the summer of 1998. If, as M. Dreux-Leblanc says, it was important to tie Mr Taylor in to a new deal before other record companies began snapping at his heels, the silence is surprising. Second, and following on from this, it is surprising that no contract was printed off until November 1988 at the earliest; and no confirmatory letter or fax was sent to Mr Taylor in the intervening months. M. Dreux-Leblanc's explanation for the lack of a letter, namely that RDM did not have the money to do it, was unconvincing. Third, when M. Dreux-Leblanc responded to Mr Taylor's request for a loan, he did not suggest that the loan be advanced against future sums due under the new publishing agreement. It is noteworthy that when Mr Barry asked for money, a couple of months later, M. Dreux-Leblanc used the request as a lever to induce Mr Barry to sign a new publishing agreement straight away.
169. I reject, therefore, RDM's case that M. Dreux-Leblanc and Mr Taylor reached an agreement at the World Cup match in the summer of 1998.

Was there an agreement at Home Park House in the autumn of 1998?

170. I have rejected RDM's case that the agreement was made at the World Cup in June or July 1998. It is clear that the 1998 agreement did not come out of the blue, and that there must have been some previous discussion of its terms. RDM does not suggest any other discussion; but both Mr Taylor and Mr Rawling say that the discussion took place at Home Park House in October. I have already summarised their accounts of what took place.
171. There are, in my judgment, a number of reasons which make this timing of the discussion probable. It makes better sense chronologically, since it was at a time when it was clear that Cher's single, "Believe", was likely to be a massive success. It ties in with the fact that the advances which were to be paid under the 1998 Agreement were the same as Mr Barry's. Mr Barry's advances had been increased to £25,000 by the end of October 1998; in June or July of that year they were lower (£18,500). M. Dreux-Leblanc said in his witness statement that Mr Taylor was happy with his agreement because "it put him on the same terms as Paul Barry". Mr Taylor could not have known of Paul Barry's terms before October. It sits more easily with the fact that the new agreement was prepared (or at least began to be prepared) on 23 November 1998. A delay of that magnitude is not unusual. It is also corroborated by Mr Barry, who said in his witness statement:

"I remember that Mark did talk to me about his conversation with Brian and Mr Leblanc in the kitchen at Home Park House which led to his 1998 publishing agreement. He came to speak to me in my writing room at Home Park House just after it had happened. He was rather bemused about the whole thing. He said he could not understand what the big deal was. He told me that the money had been raised in stages without him saying anything. We laughed about it. I told him that my advances had just been increased as well."

172. I accept the evidence of Mr Taylor and Mr Rawling about the timing of the conversation. So far as the content of the conversation is concerned, it is not suggested by anyone that the duration of the agreement was discussed (after the World Cup match). Mr Taylor and Mr Rawling say that only the advances were discussed. M. Dreux-Leblanc, of course, denies that the discussion took place at all. Mr Taylor's account is corroborated by Mr Barry; and I accept it.
173. For the sake of completeness, I add that I do not consider that Mr Taylor would have agreed to a three year term. I am prepared to accept his and Mr Rawling's evidence that, back in 1995, RDM offered a three year term, but that what was agreed was a two year term. But as Mr Sutcliffe pointed out, much had changed in the intervening three years. I do not therefore place much weight on what was agreed in 1995 about the duration of Mr Taylor's first publishing agreement. It was common ground that a highly successful writer would prefer, all other things being equal, a shorter, rather than a longer term, because it gives him more frequent opportunities to renegotiate. It is true that a writer's willingness to commit himself for a longer term may depend on the size of his advance. But an advance of £25,000 a year in fact turned out to be less than 10 per cent of what Mr Taylor earned as his producer's royalty on "Believe"; and I do not think that an advance on that scale would have been so attractive as to persuade him to increase the term of his agreement. Although Mr Taylor would not have known in October 1998 quite how much he would earn from "Believe"; I am satisfied that he would have believed that it would be far in excess of £25,000.

The signing of the 1998 agreement: discussion and conclusions

174. The real issue here is whether Mr Taylor read and understood the agreement (and in particular clause 11) before he signed it. RDM does not suggest that Mr Taylor read the whole of the agreement; merely that he looked at clause 11. Mr Taylor says that he did not read it at all.
175. Mr Sutcliffe submits that Mr Taylor's assertion that he did not read the contract at all is entirely out of character for someone who was careful enough to send the draft of 1995 Agreement to the Musician's Union for advice and who made really quite minor changes to that agreement even on the day of signature. He says that it defies belief that Mr Taylor did not at the very least look at clause 11 in order to ensure that the new agreement about advances had been properly reflected in the written document. He says that it is inconceivable that M. Dreux-Leblanc would simply have put the agreement in front of Mr Taylor and expected him to sign it without looking at it or (even if he did not read it) without explaining the changes made to the previous agreement.
176. On the face of it, this is a powerful submission. However there are features of the evidence that undermine it. First, M. Dreux-Leblanc said that he himself had not read the agreement, even though he prepared it. If M. Dreux-Leblanc, who was the businessman, did not read the agreement, it is not inconceivable that Mr Taylor did not read it either. Second, if Mr Taylor had merely glanced at clause 11, he might have noticed the inclusion (in bold face type) of the sum of £25,000 as the agreed advance, without necessarily noticing the reference to the third twelve month period of the agreement. Third, if Mr Taylor had read clause 11 with any care, he would have noticed the misspelling of "quarterly" in clause 11 (a). Fourth, if M. Dreux-Leblanc had explained the changes made to the agreement, he would surely have done so by reference to clause 4 as well as clause 11 (in which case the discrepancy between the two would surely have been noticed). Fifth, if Mr Taylor was as careful as Mr Sutcliffe suggested, he would surely have read the whole agreement; and he would have seen that clause 4 (a)(i) of the agreement specifies its duration as two years. At the very least the discrepancy between clause 4 (a)(i) and clause 11 (c) would have been spotted there and then.
177. Not without some hesitation, I accept Mr Taylor's evidence that he did not read the 1998 agreement before he signed it.
178. The other issue relating to the signing of the agreement was the date on which Mr Taylor received his first advance cheque under the agreement. The cheque itself was dated 1 December 1998. RDM say that he received it on signing the agreement (which is also dated 1 December). Mr Taylor says that he received it afterwards, and that the agreement was signed earlier than 1 December. The significance of the point is that the amount of the cheque (£6,250) was one quarter of the agreed annual advance. The previous advance had been payable in semi-annual instalments. Thus the fact that Mr Taylor received a cheque for one quarter rather than one half of his annual advance shows (according to RDM) that he knew on signing the agreement that at least this change to the contract had been made.
179. It is incontrovertible that the cheque was banked by Mr Taylor on 18 December and cleared RDM's account on 22 December. The signed agreement bears the date "23/11/98" in its footer. In his main witness statement M. Dreux-Leblanc said that, once he had prepared the 1998 Agreement, he "printed off a number of copies and took them with me to London". He confirmed in his oral evidence that he had no recollection of having taken more than one session to draft that agreement and that it had been prepared in a rush before going to London. This points towards the conclusion that the agreement was signed before 1 December, when the cheque was drawn. There are indications in subsequent correspondence (M. Coulaud's letter to MCPS in August 2000) that RDM thought that the agreement had been signed on 23 November 1998. The cheque itself was written by Mlle Thuillier in RDM's accounts department in Paris. The only evidence of how she came to have the knowledge of the amount for which to draw the cheque was M. Colas' suggestion that he had passed the contract to her. That would also suggest that the agreement was signed before the cheque was drawn. One would also expect Mr Taylor to bank the cheque soon after he received it. On the other hand, the advance was contractually due on signing the agreement; and Mr Sutcliffe makes the fair point that M. Dreux-Leblanc would not have wished to upset Mr Taylor by not bringing a cheque with him to accompany the signing.
180. Again, not without some hesitation, I accept Mr Taylor's evidence that he did not receive the cheque until after the agreement was signed; and did not realise until then that his advances were to be paid quarterly.

The "discovery" of the "mistake"

181. My conclusions under the previous three headings in a sense dispose of this issue. But, as I have said, I have been influenced in my findings of fact by conclusions reached on all the various issues; so I must set out my conclusions under this head too.
182. M. Dreux-Leblanc says that in February or March 1999 he was sitting in the kitchen at Home Park House. Mr Taylor came into the studio holding a copy of the 1998 agreement. He told M. Dreux-Leblanc that he had forgotten to change clause 4. M. Dreux-Leblanc asked him if he wanted to execute a new corrected agreement. Mr Taylor said that M. Dreux-Leblanc could make the correction if he wanted to. M. Dreux-Leblanc said that it was clear from clause 11 that the agreement was for a three year term; and Mr Taylor agreed. M. Dreux-Leblanc therefore decided that it was not necessary for the agreement to be executed again.
183. Mr Taylor says that this conversation did not take place. He also says that he could not have been holding a copy of the 1998 agreement as it was still in his cupboard at home.
184. M. Dreux-Leblanc also says in his witness statement that in June or July 2000 M. Colas came into his office in Paris, saying that he had noticed a discrepancy between clauses 4 and 11 of the 1998 agreement. He says that M. Colas:

"explained that as a result of this inconsistency he had made a mistake in the notification form that he sent to PRS/MCPS in December 1998, telling them that the term of the 1998 Agreement was two years rather than three."

185. M. Dreux-Leblanc says that he replied that he was already aware of the mistake in clause 4 as he had already discussed it with Mr Taylor. The two of them agreed that M. Colas should write to the PRS and the MCPS to correct the mistake.
186. I have already referred to the fax that M. Colas sent to Mr Taylor in Miami on 31 August 2000, pointing out the alleged mistake and enclosing what appeared to be amended registrations of the agreement. It does not refer to the meeting said to have taken place between Mr Taylor and M. Dreux-Leblanc in early 1999.
187. Mr Taylor says that he cannot recall discussing the fax with Mr Rawling, but he is sure he must have done. On the other hand, Mr Rawling said that he did not see M. Colas' fax while he and Mr Taylor were in Miami; and the two of them did not discuss it. To my mind, this defies credibility. Mr Taylor's case is that the terms of the publishing agreement were negotiated between him and Mr Rawling; and that the two of them knew that it was only a two year deal. Yet not only is M. Colas asserting that it was a three year deal; he is going further and claiming to re-register the agreement with the PRS and the MPCS as a three year deal. What could have been more obvious than for Mr Taylor to complain (at least to Mr Rawling) that M. Colas had got it wrong? I do not accept Mr Rawling's evidence on this question. It seems to me to be quite obvious that Mr Rawling and Mr Taylor talked about M. Colas' fax in Miami. It may be that they decided that Mr Taylor should not reply to it before he had taken legal advice; or it may be that there and then they decided that, if possible, RDM should be left in the belief that Mr Taylor did not dissent from the assertion that his agreement would not expire until December 2001.

The discovery of the mistake: discussion

188. There are a number of puzzles about RDM's account of the discovery of the mistake:

i) If the mistake was pointed out by Mr Taylor in February or March 1999, at a time when he had a copy of the agreement in his hand, why was the agreement not altered there and then? M. Dreux-Leblanc's explanation was that he did not have his own copy of the agreement with him; and that it would not have been possible to alter one copy only. I do not understand why not. It would surely have been possible to have altered one copy immediately, and then to have sent another altered copy to Mr Taylor to sign as the counterpart. If for some reason that was not possible:

ii) Why did M. Dreux-Leblanc not write to Mr Taylor to confirm their discussion and record the agreement that there had been a drafting mistake in the contract? No letter was written before Mr Taylor gave notice. M. Dreux-Leblanc's explanation was that he and Mr Taylor had a "trustful relationship". However, the point of signing a new agreement was to bind Mr Taylor to RDM, and to ward off rival companies who might have been after his services. In other words, the written contract, in the correct form, would be needed at precisely the time when the "trustful relationship" was under strain.

iii) What would have prompted Mr Taylor to look in detail at the terms of the 1998 agreement in early 1999? Mr Taylor said that having signed the agreement, he had put it away in a cupboard. That seemed to me to be entirely plausible. (It was not suggested that receipt of a cheque for only a quarter of the annual advance (instead of half) was the trigger for Mr Taylor's re-examination of the agreement, since it was RDM's case that he had received the cheque on signing).

iv) Why did RDM not re-register the "correct" terms of the agreement before the end of August 2000? M. Dreux-Leblanc's explanation was that there was no urgency, because the agreement still had a long time to run. But so it did in August 2000 (if RDM is right).

v) Why did M. Dreux-Leblanc not tell anyone at RDM or XIII Bis about his conversation with Mr Taylor?

vi) M. Colas said that he noticed the discrepancy when inputting the details onto the new computer system for the purpose of updating copyright and payment details, but did not satisfactorily explain the need to look at clause 4 of the 1998 Agreement for that purpose. Indeed, at one point in his evidence he said that he never entered the duration of agreements into the computer system; only the dates of payments required to be made (all of which were in clause 11).

vii) In their letter before action of 28 March 20002 RDM's solicitors gave a detailed and technical explanation of how the mistake came to be made in the changeover of computer systems. This explanation was disavowed by M. Colas. No one could say where it came from.

viii) How can M. Colas have explained to M. Dreux-Leblanc that he had made a mistake in registering the agreement? Clause 4 and clause 11 were on the face of it inconsistent; but how could M. Colas have known which of the two was correct? When he first registered the agreement, he does not seem to have been in any doubt that the agreement was for two years only.

ix) If, in August 2000, all that was happening was the correction of an error that had been spotted by M. Dreux-Leblanc in early 1999, why did M. Colas say that "he" had "just noticed" the error? Why did he not say that M. Dreux-Leblanc and Mr Taylor had already discussed the mistake? And why did M. Dreux-Leblanc, with whom Mr Taylor is said to have discussed the error, not write the letter to Mr Taylor himself? He was, after all, in the office; because he signed the altered joint notification form on 30 August 2000 (the day before M. Colas sent his fax).

x) Why was the fax sent to Mr Taylor in Miami at all, rather than being sent by post to his home address in England? If RDM is right, and this was simply a tidying up of an acknowledged error, surely it could have waited a week until Mr Taylor's return.

189. In my judgment these puzzles cast considerable doubt on RDM's case about the discovery of the mistake, independently of my findings about the negotiation of the 1998 agreement. The only puzzle in Mr Taylor's account is why he did not respond to M. Colas' assertion in his fax of 31 August. But this puzzle is, I think, satisfactorily explained by my findings under the next heading.

Alleged diversion of work: Outline

190. RDM claims that Mr Taylor, in concert with Mr Rawling, hatched a plot some time in or before September 2000 to leave RDM; to set up their own rival company; to take RDM's in house producers with them, and to take with them projects that would provide the launch-pad for the new company. The three most important projects were the Enrique Iglesias, Cher and Bocelli projects. I will deal with each in turn; but before doing so will consider the allegation more generally.
191. Both Mr Taylor and Mr Rawling deny that there was any such plot, and say that no decisions had been made.
192. Mr Taylor did not reply to M. Colas' fax of 31 August. He says that he was advised not to by his then solicitor, whom he consulted on his return to England; and that, although he did not feel comfortable with that advice, he took it. In the course of the trial a file note was disclosed. It recorded a meeting on 12 September 2000 between Jeremy Wakefield and Martin Dacre of Eatons, solicitors, and Messrs Rawling, Taylor, Stack and Turbitt. The lawyers were shown a copy of M. Dreux-Leblanc's letter to Mr Taylor of 21 August 2000. They were told that Mr Taylor's songwriting agreement expired in December 2000. The note does not record that they were told that this was challenged by RDM; nor that they were told about or shown M. Colas' fax of 31 August. The meeting ended as follows:

"[Mr Rawling] asked if he should say anything to [M. Dreux-Leblanc] in the meantime. We said he should say that he is considering his position and is taking legal advice. The others should say the same."

193. Initially I was somewhat sceptical about Mr Taylor's evidence on this question. However, Mr Turbitt, who was present at the meeting, said that he remembered Mr Taylor raising this point at the end of the meeting; and that he remembered Mr Dacre giving Mr Taylor the advice that he said he had received. Mr Turbitt impressed me as an honest witness; and I accept his evidence.
194. On the other hand, it is clear, in my judgment, that Messrs Taylor and Rawling had decided to part company with RDM by the late summer of 2000.
195. The file note of the meeting with Eatons on 12 September corroborates this. That note records:

"We asked if Brian and the others had made their minds up that they wished to go their separate ways from [M. Dreux-Leblanc]. They had made their minds up about this."

196. So too did Mr Turbitt's evidence. He said in his witness statement:

"During 2000, Brian [Rawling], some of the producers and I had a number of discussions about leaving RDM together and setting up on our own. By August or September, Brian [Rawling], Mark Taylor, Graham Stack and I had decided that we would leave RDM to establish a new production company together. We began to put the necessary arrangements in place ...

From about September 2000, we received advice about setting up our business from Charles Negus-Fancey, a solicitor friend of Brian Rawling experienced in the music industry. He told us that in giving his advice he was acting on behalf of Brian. Charles in turn I believe consulted others about our plans and how best to make the break from RDM …

In October 2000, Mark Taylor, Brian Rawling, Graham Stack, and I had reached agreement on the ownership of the company we were to establish when we left RDM (and which was later set up as Brian Rawling Productions Limited): Brian was to have a 55% stake, Mark would receive 25%, and Graham and I would have 10% each. This was confirmed in a memo prepared by Charles Negus-Fancey following a meeting we had on 3 January 2001 …"

197. This evidence is also corroborated by the fact that in the early autumn of 2000, Mr Turbitt and Mr Taylor arranged for consultants to search for suitable premises for the new operation.
198. There is equally no real doubt that Mr Rawling and Mr Taylor concealed their plans from M. Dreux-Leblanc, and threw him off the scent. Mr Taylor's statement at the meeting on 10 August (that he was unhappy "because Brian was unhappy") prompted M. Dreux-Leblanc to write his long letter to Mr Taylor of 21 August 2000 (copied to Mr Rawling). Although Mr Rawling promised to respond in detail to this letter, he never did. He and Mr Taylor consistently and deliberately avoided M. Dreux-Leblanc's subsequent requests for a meeting.
199. Between July and October 2000 M. Dreux-Leblanc proceeded with his plans for Dreamhouse 2. This involved both Mr Taylor and Mr Turbitt in meetings with architects and giving the architects instructions about their requirements for studios. I am quite satisfied that M. Dreux-Leblanc would not have done that if he had known of the impending departure of Mr Rawling and the rest of the Dreamhouse team.
200. On 2 October 2000 M. Dreux-Leblanc threw a lunch party at a restaurant called Vecchia Roma to celebrate the success of RDM's songwriters in 2000. He and Mr Taylor sat next to each other and had friendly conversations. It is clear that Mr Taylor said nothing on this occasion to alert M. Dreux-Leblanc to his decision to leave RDM. Nor did Mr Taylor say anything to controvert RDM's assertion in M. Colas' fax of 31 August that the publishing agreement still had over a year to run.
201. Mr Rawling's fax of 14 October 2000 reporting on the New York trip gives no hint of any plan to leave RDM.
202. On 1 November 2000 Mr Taylor wrote to M. Dreux-Leblanc enclosing a letter he had instructed his accountant Mr Purvis to write. I have already quoted that letter. I agree with Mr Sutcliffe that, in the light of the fact that Mr Taylor had already decided to leave RDM, this letter was a subterfuge by which he hoped to persuade RDM to agree that his royalties should be paid direct to him by record companies.
203. In my judgment it was the desire of both Mr Taylor and Mr Rawling to conceal their plans to set up a rival to RDM from M. Dreux-Leblanc that caused Mr Taylor not to reply to M. Colas' fax of 31 August, and to lull M. Dreux-Leblanc into the false belief that Mr Taylor accepted that the publishing agreement was a three year deal. Both Mr Taylor and Mr Rawling accepted in cross-examination that if M. Dreux-Leblanc had known their position, he would have attempted to negotiate a new publishing agreement with Mr Taylor. This seems to me to be self-evident. That M. Dreux-Leblanc would have been prepared to allow RDM's relationship with its most important in-house producer/writer to come to an end without even attempting to negotiate with him is absurd.
204. I conclude that during the autumn of 2000 M. Dreux-Leblanc believed that Mr Taylor accepted that the publishing agreement was a three year term, and that Mr Taylor's departure from RDM at the end of November 2000 came as a complete surprise. I conclude also that Messrs Taylor and Rawling actively fostered this belief. I have, as Mr Sutcliffe urged me to do, taken this into account in assessing the reliability of their evidence.
205. Mr Turbitt said in his witness statement:

"Our intention was to take some of the most valuable projects involving established artists with us when we left RDM so that we had high profile, remunerative work at our new business from the outset. These projects included tracks for Cher and Enrique Iglesias. Charles Negus-Fancey told us that we should not start production work on these projects while at RDM if at all possible because to do so would be to expose us to a claim from RDM.

Brian Rawling, Mark Taylor, Graham Stack and I agreed between us that work on the Cher and Enrique Iglesias projects should be delayed as far as possible until we started the new business. However, work on these and other projects was started before we left RDM."

206. Mr Mill put to Mr Turbitt in cross-examination that "all that in fact might have been discussed was that if both projects [Cher and Enrique] were not RDM projects and were not started until after you had all left, those would be major projects with which to start your new business?" Mr Turbitt replied: "Correct, that's why I say with Mark Taylor going to Florida to do production work with the Enrique album coming up quickly, which was delivered at the end of February, some work would have had to have been done to progress the projects". In answer to the question: "It was always the intention, was it not, of those with whom you were having the discussions that to the extent that projects were commenced as RDM projects they should be completed as RDM projects?" Mr Turbitt replied: "No, the intentions were if there was no way that they could not be RDM projects then they would remain RDM projects. I mean you get into the concept of what commenced means, but the intention certainly was we were starting a new company, let's try to get these projects which Brian and Mark felt were theirs into the new company, and that was discussed with the four of us on many, many occasions".
207. I accept the broad thrust of Mr Turbitt's evidence. I find that Mr Taylor was advised to and did delay work on projects (and in particular the Cher project), with a view to ensuring that the projects would go to the new company. However, in view of Mr Iglesias' evidence about the timing of his call to Mr Taylor I do not accept that work on the Iglesias project was deliberately delayed. I deal with this later in this judgment.
208. There is one minor issue with which I should deal now. That is the date upon which Mr Taylor last worked at Home Park House. Mr Taylor last went to Home Park House on 1 December, to send a fax. He may have gone subsequently to pick up his personal belongings, but he did not carry out any producer work there after the end of November 2001.

Was the 1998 agreement a two year agreement or a three year agreement? The legal framework

209. The modern starting point for the consideration of the interpretation of a contract is the speech of Lord Hoffmann in Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 WLR 896. He said:

"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749).

(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios [1985] AC 191 at 201:

'… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.'"

210. Both counsel agreed that in considering the meaning and effect of the 1998 agreement it was legitimate to look at the 1995 and 1997 agreements. This accords with the statement of principle of in HIH Casualty and General Insurance Ltd v. New Hampshire Insurance Co [2001] 2 Lloyd's Rep 161 in which Rix L.J. said:

"In principle it would seem to me that it is always admissible to look at prior contracts as part of the matrix or surrounding circumstances of a later contract. I do not see how the parol evidence rule can exclude prior contracts, as distinct from mere negotiations. The difficulty of course is that, where the later contract is intended to supersede the prior contract, it may in the generality of cases simply be useless to try to construe the later contract by reference to the earlier one. …

Where, however, it is not even common ground that the later contract is intended to supersede the earlier contract, I do not see how it can ever be permissible to exclude reference to the earlier contract." (Emphasis in original)

211. Mr Sutcliffe submitted, and I agree, that the inclusion of clause 20 in the 1998 agreement does not really help to ascertain the meaning of the 1998 agreement. It all depends on clauses 4 and 11. For convenience, I set out the relevant parts of clauses 4 and 11 again. Clause 4 (a) provided:

"(i) The Term of this Agreement shall (subject to Clause 12 (b) hereof) be for a period 2 (two) years from the date hereof

(ii) In the event that all advances paid to the Writer hereunder have not been fully recouped (as hereinafter defined) at the expiry of the Term, then the Term shall be extended for the shorter of either 1 (one) years or to the end of the accounting period in which recoupment occurs."

212. Clause 11 said:

"The Publisher agrees to pay to the Writer during the Term hereof the following advance payments on account of and recoupable from fees and royalties payable to the Writer pursuant to the Agreement:

(a) £25,000.00 (twenty five thousand pounds sterling) during the first 12 (twelve) month period of this Agreement payable in 4 (four) equal [quarterly] instalments, the first such instalment being paid upon signature hereof and the subsequent instalments being paid on 1^st March 1999, 1^st of June 1999, 1^st of September 1999;

(b) £25,000.00 (twenty five thousand pounds sterling) during the second 12 (twelve) month period of this Agreement payable in 4 (four) equal quarterly instalments, the first such instalment being paid on 1^st December 1999 or such later date as may be occasioned by the extension of the first 12 (twelve) month period of this Agreement and the three subsequent instalments being paid at three-monthly intervals thereafter.

(c) £25,000.00 (twenty five thousand pounds sterling) during the third 12 (twelve) month period of this Agreement payable in 4 (four) equal quarterly instalments, the first such instalment being paid on 1^st December 2000 or such later date as may be occasioned by the extension of the first and/or the second 12 (twelve) month period of this Agreement and the three subsequent instalments being paid at three-monthly intervals thereafter."

213. Mr Sutcliffe submits, and I agree, that if clause 4 (a)(i) is read alone, there is no difficulty in understanding what it means. It clearly states that the term of the agreement is two years. Equally he submits, and I agree, that if clause 11 is read alone, there is no difficulty in understanding what it means. It clearly says that there will be three twelve month periods in the agreement. Are these clauses inconsistent, or can they be reconciled?
214. The general approach to questions of potential inconsistency has been considered in a number of cases. In Goldmile Properties Ltd v. Lechouritis [2003] 2 P. & C.R. 1 Sedley LJ said:

"It is axiomatic that where the provisions of any contract, including a lease, come into conflict, they are to be interpreted and applied so as to give proper effect, if possible, to both of them."

215. In Pagnan SpA v. Tradax Ocean Transportation S.A. [1987] 3 All E.R. 565 Dillon L.J. said that there would obviously be an inconsistency if two clauses cannot "sensibly" be read together; and at first instance in the same cases Steyn J said that the duty of the court is "to reconcile seemingly inconsistent provisions if that result can conscientiously and fairly be achieved". ([1987] 1 All E.R. 81 at 89).
216. Finally, on this point, in Yien Yieh Commercial Bank Ltd v. Kwai Chung Cold Storage Co. Ltd [1989] 2 H.K.L.R. 639 Lord Goff of Chieveley, delivering the advice of the Privy Council, said:

"Their Lordships wish to stress that to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth inconsistent. In point of fact, this is likely to occur only where there has been some defect of draftsmanship. The usual case is where a standard form is taken and then adapted for a special need, as is frequently done in, for example, the case of standard forms of charterparty adapted by brokers for particular contracts. From time to time, it is discovered that the typed additions cannot live with the printed form, in which event the typed additions will be held to prevail as more likely to represent the intentions of the parties. But where the document has been drafted as a coherent whole, repugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming probability is that, on examination, an apparent inconsistency will be resolved by the ordinary processes of construction."

217. So my first task is to see whether the two clauses can be sensibly read together. In opening, Mr Mill submitted that clause 4 (a)(ii) of the agreement provided that there would be a third year of the agreement in the event that Mr Taylor's advances had not been fully recouped by RDM by the end of the second year (or a subsequent accounting period). Clause 11 (c) must therefore be interpreted as confined to the situation in which the Term of the agreement is extended by the operation of clause 4 (a)(ii). This may involve reading clause 11 (c) as if it dealt with the third year of the agreement "should it occur". In that way clause 11 (c) can be read conformably with clause 4 (a)(i); and there is no inconsistency.
218. Mr Sutcliffe disputed that submission on the following main grounds. First, clause 4(a)(ii) provides for the extension of the Term in the event that all advances paid to Mr Taylor have not been fully recouped at the expiry of the Term. If Mr Taylor is unrecouped, the Term is extended for the shorter of one year or to the end of the accounting period in which recoupment occurs. This means that there is no automatic one year extension. The accounting periods were the six month periods ending on 31 December and 30 June in each year. Mr Taylor might become fully recouped in the accounting period immediately following the end of the Term (i.e. by the following 31 December). Thus, if the fixed Term were taken to be 2 years ending on 30 November 2000, and if Mr Taylor became fully recouped in the accounting period ending on 31 December 2000, the Term would expire on 31 December 2000, only a month after the date on which the Term would otherwise have expired. If Mr Taylor became fully recouped in the following accounting period, the Term would end on 30 June 2001. If Mr Taylor never became recouped, the Term would be extended for the full year; that is to 30 November 2001. The same position would apply if Mr Taylor became recouped in the third accounting period. Although that accounting period would not in fact end until 31 December 2001, the long-stop date would kick in, and the term would come to an end on 30 November 2001. Second, clause 11(c) speaks of "the third 12 … month period of the Agreement". It does not envisage that 12 month period being shortened by earlier recoupment. Third, it makes no commercial sense for RDM to be paying Mr Taylor a further advance of £25,000 in circumstances where the Term has only been extended by virtue of clause 4(a)(ii) because he is unrecouped. The only purpose of extending the Term for a further period is to enable RDM to recoup advances already paid. By clause 11(c), RDM would be required to pay Mr Taylor a further sum of £25,000. This further payment reduces the possibility of recoupment within the extension period. Fourth, the 1995 and 1997 agreements contain clause 4(a)(ii) in identical terms but no clause 11(c). It is hard to see why clause 11(c) should have been absent from those agreements but came to be included in the 1998 agreement, especially in circumstances where the annual advance payable under the 1998 agreement was two and a half times higher than that payable under the two previous agreements. Lastly, Mr Mill's construction inevitably involves reading an apparently unqualified obligation to pay the advance during the third twelve month period as being qualified by some phrase as "if it should occur".
219. In his impressive reply, Mr Mill gave detailed answers to Mr Sutcliffe's objections. Mr Mill accepted that, contrary to his opening submission, on analysis clause 4 (a)(ii) did not provide for an automatic extension of one year. Depending on the date of recoupment, the extension could be for one month (to 31 December 2000), seven months (to 30 June 2001) or one year (to 30 November 2001). However, he fastened on the opening words of clause 11:

"The Publisher agrees to pay to the Writer during the Term hereof the following advance payments on account of and recoupable from fees and royalties payable to the Writer pursuant to the Agreement" (emphasis added)

220. Thus Mr Mill submitted that if the extension of the term came to an end on, say, 30 June 2001, RDM's obligation to pay advances would cease on that date, because the obligation was only an obligation to pay "during the Term hereof". This dealt with Mr Sutcliffe's first two objections. It also obviated the need to read any words into clause 11 (c) (again, contrary to his opening submission). Next he submitted that there was a plain commercial purpose in the clause, whether looked at from the point of view of the writer (Mr Taylor) or the publisher (RDM). From Mr Taylor's perspective, an extension of the term would continue the period during which he would continue to be exclusively tied to RDM. He could not therefore sell his compositions elsewhere. He would need an income to live on during the extension, and clause 11 (c) provided the machinery for this. From RDM's perspective, the combination of clauses 1 and 4 (b) gave the publisher the right to exploit the writer's works created during the Term for a period of 25 years after the Term ended. The obligation to pay advances was an obligation to pay on account of royalties etc. payable "pursuant to the Agreement". There was every reason to suppose that during the period of 25 years following the termination of the Term the publisher would recoup advances out of royalties. In addition, he submitted that the minimum commitment applied during the extension so that the publisher would have the benefit of the writer's delivered compositions during the extension. I do not agree with this last point. The minimum commitment is an obligation to deliver 10 compositions during each twelve month period of the term. If the term were to be extended for the full period of one year, then I can see that the minimum commitment would apply. But if the term were to be extended for a shorter period (say, to 30 June 2001), then I do not see how the minimum commitment clause could be apportioned or rewritten so as to oblige the writer to deliver, say, five compositions in a six month period. Mr Mill's fall-back position on this point was that in practice, since the writer has nowhere else to go during the extension period (because he is exclusively tied to the publisher) he would in practice deliver compositions for the publisher to exploit. I think the point can also be made that the copyright in any composition written or created during the extension period would automatically be assigned to the publisher under clause 1. (I will have to return to the question which the assignment actually takes place). In answer to Mr Sutcliffe's fourth objection Mr Mill submitted that although a comparison between the 1998 agreement and the 1995 and 1997 agreements was legally permissible, it was unhelpful. Just because the two earlier agreements were workable without clause 11 (c), it did not follow that the 1998 agreement was unworkable with the inclusion of clause 11 (c).
221. I confess that although Mr Sutcliffe persuaded me that Mr Mill's original formulation was a very improbable reading of the agreement, Mr Mill has persuaded me that his revised formulation is a permissible reading, given the extreme reluctance of the court to hold that clauses in a contract are truly inconsistent, with the consequence that one of them must be rejected or rewritten. In my judgment the two clauses can be conscientiously and fairly read together.
222. Suppose, however, that I am wrong and that the two clauses are inconsistent. What, then, is the court to do? At a high level of generality, the answer is obvious. In Walker v. Giles (1848) 6 C.B. 662 Wilde C.J. said:

"And as the different parts of the deed are inconsistent with each other, the question is, to which part effect ought to be given. There is no doubt, that, applying the approved rules of construction to this instrument, effect ought to be given to that part which is calculated to carry into effect the real intention, and that part which would defeat it should be rejected."

223. The problem, of course, is to decide which part of the contract is calculated to give effect to the real intentions of the parties. The courts have evolved rules of thumb for solving this kind of problem. For example, where there is an inconsistency between written words expressing a number and the same number expressed in figures, the written number will usually prevail (Sanderson v. Piper (1839) 5 Bing. N.C. 425); where a contract incorporates by reference the terms of another document, the contract will usually prevail over that other document (Modern Building Wales Ltd v. Limmer and Trinidad Ltd [1975] 1 W.L.R. 1281), and where there is a conflict between printed and handwritten clauses, the handwritten clauses will usually prevail (Homburg Houtimport B.V. v. Agrosin Ltd [2003] 2 WLR 711). In some cases, the contract layout may be of importance, since important clauses may be written in one part of the contract, where they are readily ascertainable without the need to consult a lawyer, whereas more detailed provisions, needing legal help to interpret them, may be written (or more usually printed) in another part. Homburg Houtimport B.V. v. Agrosin Ltd was itself an example of this. There is also an ancient rule of thumb, going back to Tudor times (Slingsby's Case (1587) 5 Co. Rep. 186), to the effect that where two inconsistent provisions in a deed cannot be reconciled, the earlier provision prevails over the later (Forbes v. Git [1922] 1 AC 256). The rationale behind the rule of thumb was explained by Millett J. in Martin v. Martin (1987) 54 P. & C.R. 238 as follows:

" ... where there are two inconsistent provisions in a deed which cannot be reconciled, they are to be treated as if they were contained in separate deeds executed by the same parties, one after the other, and in the same order in which the two inconsistent provisions are to be found in the deed. That, of course, explains the difference in treatment between a deed and a will; for in the case of two inconsistent wills made by the same testator, the later revokes the former and prevails, whereas in the case of two inconsistent deeds the result will depend on whether the grantor had put it out of his power by the first deed to bring about the consequences purported to be effected by the second."

224. In Joyce v. Barker Bros. (Builders) Ltd (1980) 40 P. & C.R. 512 Vinelott J described it as "an absolutely last resort in construction". The editors of Chitty on Contracts (29^th ed. Para 12-078) described it as "a mere rule of thumb, totally unscientific, and out of keeping with the modern construction of documents". They do not, however, refer to the only two modern cases in which it has been considered, and ignore the rationale for the rule of thumb as explained by Millett J. Nevertheless, I respectfully agree with Vinelott J that it is an "absolutely last resort", if it is to be applied at all.
225. Mr Sutcliffe submitted that in determining which of the two clauses represented the "real intention" of the parties, a vital part of the background is the fact that

i) the 1998 Agreement came after two prior agreements, the terms of which were substantially replicated in the 1998 agreement;

ii) the 1998 Agreement interrupted the Term of the 1997 agreement in order to reflect new terms agreed between Mr Taylor and RDM.

226. Accordingly, he submitted, the changes or additions made to the 1997 agreement in order to create the 1998 agreement are the best evidence of the intentions of the parties in entering into the 1998 agreement, in particular of the parties' intentions as to the duration of that agreement. Those changes or additions are what the parties are likely to have focussed on in ensuring that the 1998 agreement represented what had been agreed. Those changes or additions must have been intended by the parties to put into effect the commercial purpose of the new agreement.
227. The most significant change is found in clause 11. It differs from clause 11 in the 1997 agreement in three important respects:

i) it changes the amount of the annual advance from £10,000 to £25,000;

ii) it changes the instalment payments from semi-annual to quarterly with the result that new dates are inserted for the three subsequent instalment payments after 1 December 1998 in sub-clause (a) and different wording is inserted (applicable to quarterly instalments) in sub-clauses (b) and (c);

iii) it introduces a new sub-clause (c) in place of the intentionally deleted sub-clause (c) found in the 1997 agreement.

228. The introduction of a new sub-clause 11(c) cannot possibly have been inadvertent. It plainly involved the draughtsman having to address his mind specifically to:

i) the fact that an advance of £25,000 is to be paid "during the third 12 (twelve) month period of this agreement";

ii) the date on which the first instalment of that advance is to be paid (assuming no extension under clause 12(b)), namely, 1 December 2000.

229. Mr Sutcliffe submitted that I could safely conclude that clause 11 as a whole, with its clear references to three 12 month periods and to payments of an advance of £25,000 in each period, is plainly a clause the parties intended to have effect. It is the only material change (as opposed to addition) to the 1997 agreement. It touches upon two of the most fundamental aspects of the 1998 agreement: its length (by specifically referring to three 12 month periods) and the amount and frequency of the advance payments to be made to Mr Taylor (by specifying a guaranteed £25,000 advance payable in quarterly instalments in each 12 month period).
230. Knowing (as part of the background) that the terms of the 1997 agreement were substantially replicated in the 1998 agreement, it is therefore permissible as a matter of construction to conclude that:

i) clause 11 represents the real intention of the parties and the change that should have been made to clause 4(a)(i) (from "two (2)" to "3 (three)") was overlooked;

ii) since the reference to 2 years in clause 4(a)(i) of the 1998 agreement is plainly inconsistent with clause 11(c), it can either be disregarded altogether (with the result that clause 11(c) falls to be construed as giving effect to the parties' intention that the Term should be 3 years) or, perhaps more appropriately, it can simply be read or construed as if it contained the figure and word "3 (three)" in place of "two (2)".

231. On the other hand Mr Mill submits that if it is legitimate to conduct the historical investigation into the previous contracts that Mr Sutcliffe undertakes, I should place just as much weight on what the parties did not change as on what they did change. What they did not change was the clause that dealt directly with the duration of the agreement. Where the court is confronted with two conflicting terms in an agreement, both dealing with duration, but one doing so directly, and the other indirectly, the court should infer that the clause dealing with duration directly represents the "real intention" of the parties. The conventional structure of an agreement such as this one is that duration is referred to in a separate clause; and that is where the reasonable person with the background knowledge of the parties would look to discover the duration of the agreement. I accept this submission. Had the question arisen for decision, I would have rejected clause 11 (c).
232. However, if I am wrong in accepting Mr Mill's submission, I must consider whether I would have applied the rule of last resort. If I had rejected Mr Mill's submission because I had decided that the "real intention" of the parties was to create an agreement of three years' duration rather than two, then the application of the rule would have been inappropriate. Once I had reached that conclusion, I do not consider that the application of a rule of thumb should be permitted to displace that conclusion. But if I had been quite unable to choose between clause 4 (a)(i) and clause 11 (c), then it seems to me that, because the court must reach a decision one way or the other, the rule of thumb may still have a useful (though very rare) part to play. However, this question, too, does not arise for decision.
233. The conclusion I have reached, therefore, is that the duration of the publishing agreement was two years, and that it expired on 30 November 2000.

Rectification

234. RDM alleged that, if I held (as I have) that the 1998 agreement was a two year agreement, it should be rectified by substituting "three (3)" for "two (2)" in clause 4 (a)(i). In view of my findings of fact about what did (or did not) happen in Paris at the World Cup, this claim necessarily fails. Mr Mill submitted that in any event rectification should be denied on the ground that it was an equitable discretionary remedy and that M. Dreux-Leblanc had behaved reprehensibly. Had I found the facts in RDM's favour, I would not have accepted this submission. It is not accurate to describe the remedy of rectification as a discretionary remedy. It is an equitable remedy and may, therefore, be defeated by an equitable defence (Nurdin & Peacock plc v. D.B Ramsden & Co Ltd [1999] 1 EGLR 119). Mr Taylor would not, in my judgment, have established an equitable defence. I should also record that at the close of the evidence Mr Taylor applied for permission to amend his pleadings to allege a claim to rectify the 1998 agreement by deleting clause 11 (c) in the event that I held that, on its true construction, the 1998 agreement was a three year agreement. I refused permission because I was satisfied that it was probable that, had the claim to rectify been raised earlier, the course of the evidence would have been different. To allow an amendment after the close of evidence would, in those circumstances, have been unfair to RDM.

Enrique Iglesias: what happened in Miami?

235. Mr Barry went out to Miami in July and October 2000 to write songs with Enrique Iglesias. The products of these sessions were "Hero" and "One Night Stand" (the July session); and "Love to See You Cry" and "She Be the One" (the October session). Mr Barry described these as "the basic songs". Both he and Mr Iglesias described the songs at that stage as "works in progress". Mr Iglesias (who gave evidence via video link from Miami) said that a song is not completed until it is on the album, on the record. Following the writing sessions Mr Barry returned to England.
236. In late November 2000 Mr Iglesias telephoned Mr Taylor to ask him to come out to Miami to work on the songs. Although Mr Turbitt said that work on the Iglesias project was intentionally delayed, I have no reason to reject Mr Iglesias' evidence on timing, and I accept it. Mr Turbitt accepted that he was not au fait with all the details of what was going on at Home Park House, and in my judgment his recollection is at fault on this detail. I also accept Mr Iglesias' evidence (which corroborated that of Messrs Taylor and Rawling), that there was no meeting between him and Messrs Taylor and Rawling in Miami in September 2000, when the two of them went to work with Ricky Martin. I find, therefore, that Mr Taylor's first involvement with the Iglesias project was Mr Iglesias' telephone call to him in late November.
237. Mr Taylor and Mr Barry flew to Miami on 3 December and they stayed for about a week. Before leaving, Mr Taylor bought some software for his laptop computer, and downloaded certain files onto it. They worked with Mr Iglesias on the songs in a studio in Miami. Mr Taylor made a number of both musical and lyrical contributions to the evolving songs. In consequence he was given a modest writing credit on each song.
238. RDM pursues a claim against Mr Taylor in respect of "Hero" and "Love to See You Cry" only. The claim is three-fold. First, it says that by 3 December 2000 Mr Barry's copyright in these two songs had vested in RDM under the terms of Mr Barry's exclusive song writing agreement. That agreement is in the same terms as Mr Taylor's. Consequently, the work that was done in Miami (and thereafter) was an infringement of RDM's copyright. This result is reached in one of two ways: either what was done in Miami (and afterwards) was an adaptation of the copyright work; or it was a new copyright work which incorporated a substantial part of the original copyright work. Second, RDM says that the tracks laid down by Mr Barry (and Mr Taylor) before their departure to Miami were made on RDM's equipment at Home Park House. If this is factually correct, it is common ground that RDM would qualify as the "producer" of the sound recording, as being the person by whom the arrangements necessary for the making of the sound recording were made (Copyright Designs and Patents Act 1988 s. 178). Consequently RDM would be entitled to copyright in that sound recording (Copyright Designs and Patents Act 1988 s. 9 (2)(aa)), which would have been infringed by what happened in Miami and afterwards. Third, RDM says that Mr Taylor was nominated by both Mr Rawling and M. Dreux-Leblanc to be the producer of the songs written by Mr Barry and Mr Iglesias in the event that those songs (or some of them) were selected for inclusion on the next Enrique album. That nomination was made informally and was accepted by Mr Taylor. Thus, by carrying out the production of tracks on the album "Escape" Mr Taylor was in breach of his obligation of exclusivity under the producer agreement, and in breach of his obligation to carry out production work for which he had been nominated. Alternatively RDM says that Mr Taylor had actually agreed to carry out the production work for RDM.
239. Mr Barry's evidence was that he set up a home studio in about September 2000. It was equipped in much the same way as his writing room at Home Park House. The equipment included equipment for putting files into the Cubase format. When Mr Barry was preparing for the Miami trip he laid down some tracks in his home studio. This was on 1 December. Mr Taylor came to see him at that home studio and transferred the Cubase files to his own laptop computer. Mr Barry explained that:

"What I did on 1st December 2000 was I sang down the guitar and vocal what I had, which was not finished, and I fully had the intention of Mark Taylor writing a middle eight. As it turns out, it transferred into something else. You can call it a middle section…. I was intending the song to be finished. It wasn't finished and I wanted Mr Taylor's input on it…"

240. Mr Barry reiterated on a number of occasions that in his mind the song was not finished. He denied that what he was doing was laying down a backing track for Mr Iglesias to sing to in Miami. Rather, he said, he was putting down his ideas. Mr Taylor described what Mr Barry had recorded as a "sketch". However, Mr Taylor accepted that part of the guitar track recorded by Mr Barry was used in Miami. One of the issues, relevant to the question of copyright in the sound recording was whether these tracks were made, as Mr Barry and Mr Taylor say, in Mr Barry's home studio; or whether, as RDM says they were made on RDM's equipment at Home Park House. RDM has no direct evidence to back its assertion. Mr Oxendale, RDM's expert musicologist, said that he could detect the sound of traffic noise in the background, and that since Home Park House was on a busy road, I should infer that the recording was made there. But Mr Barry said that his home was on a busy road too. Mr Barry also said (and I did not understand it to be disputed) that the floor in his home studio was wooden, whereas the floor at Home Park House was carpeted. Mr Oxendale accepted that the sound of foot tapping could be heard in the background of the music file too. This indirectly corroborates Mr Barry's evidence that the tracks were made at his home studio rather than at Home Park House and I accept his evidence to that effect. This means that the claim for infringement of copyright in the sound recording fails. There is another reason why the claim for infringement of copyright in the sound recording fails. It has not been established on the evidence that a substantial part of that sound recording was used (and hence copied) in the released version of either track.
241. The next question is when copyright in Mr Barry's composition vested in RDM. Mr Mill submits that it vested only on delivery of the composition (which was in 2001), alternatively when it was "complete", whereas Mr Sutcliffe submitted that it vested as soon as the song was fixed. There was a sub-issue, addressed by Mr Oxendale and by Mr Protheroe, Mr Taylor's expert musicologist, about when a song was complete. Mr Oxendale said that a song was complete as soon as it had "the musical elements that are essential to a song and would be retained in any new version or arrangement of that song." He said that although he was looking for the subjective intention of the writer, he was using as objective criteria as he could. These criteria included:

i) Whether the song had a clearly defined tune;

ii) Whether the song had an underlying chord sequence;

iii) Whether it featured secondary instrumental parts that give it some identity;

iv) Whether sections were obviously missing or were obviously unfinished;

v) Whether the lyrics existed as a self-contained contiguous whole, or whether there were short gaps with words or phrases missing;

vi) Whether the singer articulated the words properly, or whether there was inarticulate vocal doodlings;

vii) Whether the lyrics made sense;

viii) Whether there were clearly defined sections such as verses and choruses;

ix) Whether the song had a structure;

x) Whether there were multiple verses or a single repeated verse;

xi) Whether there was a bridge or middle eight;

xii) Whether the song was in a state where it could be registered as a complete song;

xiii) Whether the song could be covered by an artist without making additions to the lyric, melody or chord sequences.

242. Applying these criteria, Mr Oxendale was of the opinion that both "Hero" and "Love to See You Cry" were complete songs before Mr Barry and Mr Taylor went to Miami. Mr Protheroe's fundamental disagreement was not with the application of the criteria (although he did have some criticisms of Mr Oxendale's application of them) but with their validity. In his opinion "at what stage a song is complete only the composer can decide".
243. I do not think that I am called upon to decide when a song is "complete". If I were, I would have a lot of sympathy with Mr Protheroe's view. What I have to decide is whether RDM is entitled to copyright in a "Composition" as defined by Mr Barry's publishing agreement. In my judgment that is a question of interpretation of the agreement, rather than of expert evidence.
244. Clause 1 of the publishing agreement assigned to RDM copyright in the "Compositions" as defined by clause 3. Compositions were defined by clause 3 as including:

"all musical compositions and/or lyrics and/or original arrangements of musical works … and/or any compositions which are during the Term hereof written, composed or created in whole or in part by the Writer including the title, words and music thereof".

245. Clause 12 dealt with the minimum commitment. It said:

"The Writer hereby undertakes to deliver to the Publisher in each 12 (twelve) month period of the Term a minimum of an aggregate of 10 (ten) new Compositions by the Writer of a quality commercially acceptable to the Publisher ("the Minimum Commitment") and the Publisher undertakes to act reasonably and in good faith in assessing such acceptability"

246. Put shortly, the rival contentions were as follows. Mr Sutcliffe submitted that copyright vested under clause 1 as soon as a musical or literary work was fixed. Successive versions of a work resulted in successive assignments of copyright in each version. Clause 12 operated quite independently of assignment of copyright; and if necessary "composition" should be given a different meaning in clause 12 to the meaning that it bears in clause 3. Mr Mill submitted that copyright did not vest until a composition was delivered under clause 12.
247. I accept Mr Sutcliffe's submission that clauses 1 and 3 on the one hand, and clause 12 on the other are dealing with quite different things. It seems to me that clauses 1 and 3 are dealing with works in which copyright is capable of subsisting. Copyright is capable of subsisting in unfinished versions of a work (whether musical or literary) which has yet to be "finished". For copyright to subsist all that is required is that there is an original work which has been recorded. Both the preliminary versions and the "finished" product are capable of being original. As Nourse L.J. said in LA Gear Inc v. Hi-Tech Sports plc [1992] F.S.R. 121:

"If, in the course of producing a finished drawing, the author produces one or more preliminary versions, the finished product does not cease to be his original work simply because he adapts it with minor variations, or even if he simply copies it, from an earlier version. Each drawing having been made by him, each is his original work."

248. One of the ordinary meanings of "composition" is "a literary, artistic or other intellectual production". In my judgment each version of a song, if it is a musical and/or literary work, is a "composition" within the meaning of the agreement. The copyright owner is essentially given negative rights; that is to say the right to prevent anyone else from infringing copyright. Equally the copyright owner has no positive obligations to the author. Delivery of a composition under clause 12, on the other hand, triggers positive obligations on the part of the publisher; in particular an obligation to use all reasonable endeavours to exploit the delivered work. As a matter of language, what vests in the publisher under clauses 1 and 3 is copyright in a composition; what the writer has to deliver under clause 12 is a new composition. Moreover, a new composition must be of a commercially acceptable quality. I do not consider that "new" in clause 12 is to be equated with "original" in the general law of copyright. A composition will not, in my judgment, be a new composition if it is simply a reworked version of a song that has previously been delivered unless the reworking is so extensive as to produce what is recognisably a new song (or perhaps a new arrangement of a song). Nor will it be of a quality that is commercially acceptable if it is simply a reworked version of a song that has already been delivered (unless, again, the reworking is so extensive as to produce what is recognisably a new song etc.). To reach a construction that makes the assignment of copyright dependent on the writer's subjective opinion of when a song is "complete" or "finished" creates acute commercial uncertainty as to what rights the publisher has. Equally, to conclude that no copyright is assigned until the writer delivers the song, means that the writer can delay assigning copyright simply by delaying delivery of a song. It is true that by so doing he might be in breach of the minimum commitment, but that is not a complete answer. For if a writer has in fact fulfilled the minimum commitment, but has written another dozen songs, which are even by his subjective lights "finished", it was surely the intention of the parties that the publisher would be entitled to copyright in those songs. Otherwise the minimum commitment would, in practice, be at risk of becoming a maximum commitment. Moreover it would be productive of potential commercial conflict if the publisher was entitled only to copyright in the finished song, but copyright in preliminary versions remained with the writer.
249. It may be objected that if copyright in the draft of an unfinished song vests in the publisher as soon as it has been fixed, then the writer will infringe the publisher's copyright if he carries on working on the song. However, there would, in my judgment, be implied under the publishing agreement a licence for the writer to continue working on the song for the purposes of the agreement. Such an implication would, in my judgment, be necessary to give business efficacy to the agreement and/or is so obvious that it goes without saying. However, I do not consider that the implied licence would extend to enabling others to collaborate on further work to the song, since that might have the effect of prejudicing RDM's ability to exploit the already vested copyright, and would amount to a derogation from grant.
250. Accordingly, I conclude that copyright in both "Hero" and "Love to See you Cry", in the versions in which they existed on 1 December 2000, vested in RDM.
251. It is clear on the evidence that work was done on those versions of the songs in Miami and afterwards. In the case of "Hero", for example, one lyric line of the chorus was changed at Mr Taylor's suggestion from "I can take you a little higher" to "I will stand by you forever"; and Mr Taylor also wrote a middle section. Mr Iglesias also contributed to the evolving song. After his return from Miami, Mr Taylor continued to work on the songs. On the face of it, these activities amount to acts restricted by the copyright. Mr Mill accepted that what Mr Taylor did in relation to both the musical work and the literary work in "Hero", and to the musical work in "Love to See You Cry", gave rise to a new joint work in each, which substantially copied the work that had previously been done by Mr Barry and Mr Iglesias, and which was also copied in the version finally released to the public.
252. What, then, is Mr Taylor's defence to the claim for infringement of copyright? Mr Taylor did plead that there could be no copyright in a work of joint authorship until all the joint authors had made their respective contributions; but that line of defence was abandoned. The remaining lines of defence rest on consent. Copyright in a work is infringed by a person who does, or authorises another to do, an act restricted by the copyright without the licence of the copyright owner (Copyright Designs and Patents Act 1988 s. 16 (2)). Mr Taylor says that he had RDM's licence to do what he did in Miami. The precise way in which it is put is that RDM, acting through Mr Rawling, knew that Messrs Taylor and Barry were travelling to Miami in December 2000 to meet Mr Iglesias with a view to finishing the writing of the songs. Moreover, Mr Taylor says what was delivered to RDM under clause 12 of Mr Barry's contract were the songs as modified in Miami (in particular, in the case of "Hero", with the substituted lyric line) and accepted by RDM for registration; and subsequently licensed for reproduction.
253. There are two questions so far as Mr Rawling is concerned. The first is: did he consent to further work on the songs? The second is; if he did, is RDM bound by that consent? In other words, did he have authority, either actual or ostensible, to give consent on RDM's behalf?
254. There is no doubt that Mr Rawling knew that Messrs Barry and Taylor were going to Miami to continue songwriting with Mr Iglesias. Mr Mill submitted that Mr Rawling had actual authority to give consent. He submitted that the way in which RDM's business was conducted (at least in England) was that writers would play recordings to Mr Rawling and if he liked what he heard he would authorise them to work up a song onto a "demo" without any reference to M. Dreux-Leblanc or the Paris office of XIII Bis. Thus Mr Mill submitted that Mr Rawling was cloaked with authority to liaise with the writers over the finalisation of the writing which, with the intention of his employers, was to be done on a collaborative basis. In my judgment, this is factually correct. I think it probable that even if he did not have actual authority, he had ostensible authority. The essence of ostensible authority is a holding out by the principal of the agent as having authority to act in the manner in which he has purported to act. So far as the writers were concerned, Mr Rawling appeared to them to be M. Dreux-Leblanc's "partner" in RDM. In his resignation letter of 6 November 2000 Mr Rawling wrote to M. Dreux-Leblanc:

"There had been a clear understanding between us that I would be a director of the Company but although you describe me and hold me out to third parties as a director, I now realise that I never have been appointed a director and that I am not a director of Rive Droite Music Ltd." (Emphasis added)

255. M. Dreux-Leblanc replied on 9 November:

"When I decided to employed you, I wrote on the first draft employee agreement "Creative Director". You asked me to put away the word "Creative" because you felt it was much better sell position in front of our clients. We agreed that "Director" would only be a title in front of our clients and we never agree that you coud be a director on the board." (Emphasis added)

256. This seems to me to be a recognition of Mr Rawling's ostensible authority to act as director.
257. However, that is not the end of the point. Knowledge on Mr Rawling's part is not (or not necessarily) the same as a consent binding on RDM to do an act restricted by the copyright. There is no positive evidence that Mr Rawling actually consented to the continued working on the songs. Any such consent would have to be implied from his knowledge of the purpose of the trip to Miami. Under normal circumstances I would accept that such consent would be readily implied.
258. But in the present case M. Dreux-Leblanc wrote to Mr Taylor on 30 November 2000. Mr Taylor replied on 1 December (that is, before he set off for Miami). M. Dreux-Leblanc said:

"Finally, I have been surprised not seen new songs coming from you for the new CHER album. It is very surprising because you co-wrote four of them in the previous one. It is exactly the same problem with Enrique IGLESIAS that I do know that you are preparing, with the others RIVE-DROITE writers, songs for his new album. I formally ask you to send me the CD's demos of those songs as well as the copyright information by return. RIVE DROITE MUSIC has exclusive rights on those compositions and I hope you are not breaching this obligation."

259. In the face of this express assertion by RDM of its copyright in the songs being prepared for the Enrique Iglesias album, and the warning to Mr Taylor not to infringe that copyright, I do not consider that RDM can be said to have licensed the commission in Miami of an act restricted by the copyright. In my judgment this line of defence fails.
260. So far as the licensing of the mechanical reproduction is concerned, Mr Mill's oral submission was that if RDM could not complain about what happened in Miami, it cannot then complain about the subsequent exploitation of that which flowed from what was written in Miami. However, I have rejected the condition upon which the conclusion depends. It follows that I must reject this line of defence too. The pleaded defence was different. It said that RDM gave its consent to each of the works as adapted by licensing the reproduction of "Hero" and "Love to See You Cry" as delivered to it by Mr Barry in 2001. Mr Mill did not identify any document or conversation by which the consent to commit an act restricted by the copyright was given by RDM; and he did not develop this defence in his oral submissions. What is clear, however, is that throughout 2001 and thereafter, RDM was asserting an entitlement to a 50 per cent share in the copyright (musical and literary) in "Hero", which included the share that had been attributed to Mr Taylor. Even if it is possible to tease out of that assertion a consent to the copying of Mr Barry's original version of the song, it is not, in my judgment, possible to interpret it as an unconditional consent. Moreover, the released version of "Love to See You Cry" differed markedly from the truncated version that Mr Barry delivered to RDM in 2001. This line of defence therefore fails.
261. Accordingly, in my judgment, RDM's claim to infringement of copyright in the versions of "Hero" (both literary and musical) and "Love to See Your Cry" (musical), as they existed on 1 December 2000, succeeds. The claim to infringement of copyright in the sound recording fails.
262. That leaves the question of production. If (as I have found) the producer's agreement did not require Mr Taylor to work exclusively for RDM, then Mr Sutcliffe accepted that in order to maintain RDM's claim to production fees or royalties, RDM would have to establish that Mr Taylor was nominated by RDM to undertake the project on its behalf, and that he had agreed to do so.
263. Mr Iglesias said that he telephoned Mr Taylor in November 2000 to ask him to come over to Miami to start production work. He considered that he was engaging Mr Taylor personally; and not RDM. He did not discuss the production work with anyone at RDM. In addition there was no agreement between RDM and Mr Iglesias by which RDM were retained to carry out the production work; although it may well be that M. Dreux-Leblanc had hopes of obtaining such an agreement. The production agreement, (dated 18 January 2001), and entered into in April 2001, was made between Mr Iglesias and Mr Taylor personally. M. Dreux-Leblanc did not give any positive evidence of having nominated Mr Taylor to undertake production work on "Escape"; and no document has been identified which might amount to such a nomination. Although M. Dreux-Leblanc was aware that Mr Taylor was going to Miami (as his letter of 30 November 2000 demonstrates), that is not the same as nominating him to undertake production on RDM's behalf. In addition it is of some relevance to consider M. Dreux-Leblanc's explanation of the way that nomination worked. He said:

"Technically how it was done in Rive Droite is to say 'Wow, we have had this project, you will do it, and starting to explain the creative project in the process', and never somebody said 'no' when we bring him a project."

264. This suggests to me that nomination took place at a relatively advanced stage in the acquisition of a project, if not after RDM was contractually committed. In relation to "Escape" RDM never got that far. I note also that in his letter to Mr Taylor of 11 December 2000 M. Dreux-Leblanc did not assert that Mr Taylor was bound to complete the Iglesias project (although he did make that assertion in relation to Bocelli and Cher). In my judgment the claim based on a breach of the producer's agreement fails.

Cher

265. I must now pick up the threads of the story relating to Cher's follow up album to "Believe". This album ultimately became "Living Proof". On 24 October 2000 Mr Rawling reported to Stephanie Thuillier that he and Mr Taylor:

"have a meeting with ROB DICKINS on Friday to go through how many tracks they want us to produce. This project will start in NOVEMBER. No songs have yet been presented; Paul is working on this at the moment."

266. On 30 November 2000 Mr Rawling presented a budget for the production of three tracks on the Cher album. It was sent on RDM headed paper. The tracks were "Music's No Good Without You", "If You Walk Away" and "Body 2 Body". The price was to be £20,000 per track plus a 4 per cent production royalty. The royalty on the first of these tracks was, however, to be reduced by 1 per cent, as it had already been part produced by another producer called James Thomas. Almost immediately Mr Rawling and Mr Dickins renegotiated these terms. On 1 November Mr Dickins reported to Cher's management company that he had "spoken to Brian about the Metro terms". Mr Rawling was willing to accept £15,000 per track and a royalty of 3.5 per cent, increasing to 4 per cent if they delivered a top five UK or US hit single, and with a reduction of 1 per cent on "Music's No Good Without You". Mr Dickins concluded that he "would like to get them started as soon as possible".
267. Mr Rawling had, of course, resigned on 6 November. In a letter to M. Dreux-Leblanc on 14 November he said:

"I have accepted your suggestion that I should leave at the end of the year and that should give me sufficient time to complete my involvement in the new Cher … recordings which I'm co-producing."

268. Cher arrived in England on 16 November. She had been supplied by Mr Dickins with a CD containing possible songs for inclusion on the new album, and she was already beginning to learn them. She planned to stay in England until the new album was finished. Shortly after her arrival Mr Dickins played her another RDM song, written by Paul Barry, Steve Torch and Mr Taylor, called "Love is a Lonely Place Without You". The US presidential election had just taken place, and Cher had been an active campaigner for the defeated candidate, Al Gore. Her disappointment with the result, coupled with difficulties with her London accommodation, caused her to cut her visit short.
269. At about the same time, RDM had been sent a producer contract under which it agreed to provide the services of Mr Taylor, Mr Rawling and Mr Jeff Taylor for Cher. RDM signed the agreements.
270. On 21 November Mr Rawling reported to M. Dreux-Leblanc that:

"We are also starting the "pre-production" of the tracks for CHER this Friday, Rob DICKINS sent me back the contract you sent over requesting the correct information, I also note this contract read "Produced by RIVE DROITE MUSIC" this is obviously UN specific and has no reference to MARK TAYLOR and I as the "PRODUCERS" which is wrong as it is in previous contracts."

271. He reported on the financial terms agreed with Mr Dickins. The tracks to which these terms applied now included "Love is a Lonely Place Without You", making four tracks in all. On 23 November Mr Rawling reported that:

"CHER is in today to listen to some songs selected by ROB DICKINS, which include 1 RDM song, "LOVE IS A LONELY PLACE WITHOUT YOU"."

272. As I have already mentioned, Mr Taylor declined M. Dreux-Leblanc's request for a meeting on Monday 28 November on the ground that:

"Cher comes in on Friday to start so this meeting isn't good for me."

273. RDM hired a specialist microphone, which was the only one that Cher would use to lay down vocals. The hire period was from 23 to 24 November. However, it appears that, because Cher's visit to London was cut short, she did not actually arrive at Home Park House as envisaged; but left to return home to the USA.
274. On 5 December 2000 Mr Rawling wrote to M. Dreux-Leblanc. He said that he and M. Dreux-Leblanc had recently agreed that his share of producer royalties would be increased to 25 per cent (half of RDM's share). He continued:

"Obviously as things stand, I cannot envisage permitting RDM to contract with the relevant record companies for my producer's services for current projects (for example Cher …) unless you confirm that the revised royalty arrangement is indeed agreed and will be honoured by you. Also, I will not be signing on outstanding inducement letters for outstanding production contracts."

275. He repeated this in a fax of 10 December. That fax also enclosed production information. The producers' credit was simply "Mark Taylor Brian Rawling". There was no mention of RDM. The production information also included the following:

"Rob DICKINS approached myself and MARK TAYLOR to Produce tracks for new album, CHER the artist also approached RAWLING and TAYLOR to confirm PRODUCERS.

The song "LOVE IS A LONELY PLACE WITHOUT YOU" was played to ROB DICKINS at his offices, He later confirmed this song will be recorded by CHER Placed by BRIAN RAWLING.

…

This record will not be made until 2001, as the artist wants to record in the USA.

CHER has left the UK for the STATES without meeting the producers."

276. On 11 December M. Dreux-Leblanc wrote to Mr Taylor. He said (as I have already quoted):

"Secondly, you have an obligation to finish all the current projects that you are involved in on behalf of RIVE DROITE MUSIC, which include of course the CHER album and the Andrea BOCELLI album. I hope you will finish these and honour your professional commitments. I will be very disappointed if you not do it."

277. He went on to say that if Mr Taylor and Mr Rawling had "followed the rules of the music industry" the agreement with Cher would already have been signed. Mr Taylor replied on 15 December. He said (again in a passage I have quoted):

"I cannot imagine why you would think I would not complete any project which I've agreed to do, which involves Rive Droite. I can assure you I will, of course, complete the work."

278. On 17 January 2001 Warner Music UK Ltd (Cher's record label) wrote to Messrs Rawling and Taylor. They said that they understood that they would "shortly commence" production of three tracks by the artiste Cher. On 13 February 2001 they wrote to RDM asking for confirmation that RDM were exclusively entitled to the production services of Messrs Rawling and Taylor. They said that:

"if you are unable to furnish these services or if you do not confirm to us immediately that you are able to contract with us on this basis we will proceed to contract with Brian [Rawling] and Mark Taylor directly."

279. On 15 February 2001 Mr Rawling wrote to M. Dreux-Leblanc. Under the heading "Cher" he said:

"The album still has not been started or agreed to. Last conversation was she was in LA resting and this album will be started as and when she feels good about it.

I will be involved along with Mark TAYLOR in the production of the album. (Unless WARNERS tell me something else.)"

280. On 20 February 2001 RDM replied to Warners confirming its ability to enter into an agreement, and asserting that the tracks in question were produced in RDM's studios by its employees or sub-producers. This fax seems not to have reached its addressee, because on 28 February Warners wrote to say that as they had had no reply to their letter of 13 February they were proceeding to contract directly with Mr Rawling and Mr Taylor. RDM replied on the same day. They referred to the draft agreements, prepared in the name of RDM and asserted that Warners were bound to deal with RDM. On 2 March Warners asked the pointed question:

"Is [your] company still able to deliver the services of Messrs Rawlings and Taylor?""

281. Warners had sent copies of its correspondence with RDM to Mr Negus-Fancey, the lawyer acting for Mr Rawling. On 6 March he said that RDM had no authority to contract on his behalf. He continued:

"In addition, contrary to RDM's assertions, the three commissioned tracks have not been and will not be produced at RDM's studios. Cher's vocals are scheduled to be recorded in the States and the producers are recording and mixing the tracks at alternative studios."

Cher: discussion and conclusions

282. In my judgment by the end of November 2000 Mr Taylor had agreed to produce the Cher tracks for RDM, and had already begun to do so. His agreement is evidenced by Mr Rawling's fax to Mr Dickens of 10 November 2000, written on RDM's headed paper. In his closing submissions, Mr Mill said that Mr Taylor would not disagree with the proposition that he should not undertake a project otherwise than for RDM if (i) RDM had obtained the project and (ii) Mr Taylor had agreed with RDM that he would undertake the project on RDM's behalf. However, he would not accept that he was bound to decline to undertake any project, otherwise than for RDM, which RDM had failed to obtain in the first place.
283. Mr Sutcliffe said that the Cher project was plainly a project for which Mr Taylor had been nominated as the producer by RDM (and had agreed to undertake the work). Factually I accept that this is so. Mr Sutcliffe's next step was that, on the basis that RDM was correct on exclusivity, Mr Taylor thereby became obliged to complete it for RDM. I think, if I may say so, that on this point Mr Sutcliffe was too modest. I have rejected RDM's case on exclusivity, in the sense that I have rejected the blanket assertion that while Mr Taylor was RDM's in-house producer he was precluded from undertaking work from anyone else. But that, in my judgment, is not incompatible with concluding that if Mr Taylor agreed to work on a specific project for RDM, he would not undertake that self-same project for anyone else. This is the formulation pleaded in paragraph 77 (f) of the Re-Amended Defence and Counterclaim. Of course, this leaves the question: what if RDM failed to win the project? This is the strength of Mr Mill's submission that Mr Taylor's obligation to carry out production for RDM was conditional on RDM winning the project. But where a contract is conditional, it is commonplace to imply a term that neither party will prevent fulfilment of the condition. Thus Mr Sutcliffe submits that the true position is that Mr Taylor and Mr Rawling planned to do everything they could to ensure that the Cher project became one of BRP's first projects. Neither of them had any intention whatever of allowing Warner to put the project through RDM. There was not even a remote possibility of RDM being able to secure Warner's agreement to making a contract with RDM in relation to the Cher project. Mr Taylor was part of BRP. His true position was that he would only do the project through BRP. Accordingly, the cause of RDM's inability to secure the Cher project was Mr Taylor's own wrongdoing. It was not any independent action of Warner or any failure on the part of RDM. Mr Taylor is not, therefore, entitled to rely on his own wrong in asserting that the condition has not been fulfilled.
284. In view of the fact that I have accepted Mr Turbitt's evidence that Mr Taylor delayed work on the Cher project with a view to obtaining that project for the new company, I agree with Mr Sutcliffe that Mr Taylor's assertion that he would have been prepared to undertake the work through RDM if it had subsequently been re-arranged through RDM is disingenuous. I do not accept it. Mr Mill submitted that since Mr Rawling would not have rendered his services for RDM at that time, Mr Taylor should in any event not be held liable for Mr Rawling's refusal to do so. That is, if anything, a matter between RDM and Mr Rawling. I do not accept this submission. It is, in my judgment, clear that Mr Taylor and Mr Rawling were working to a common design.
285. Accordingly, I accept Mr Sutcliffe's submission that Mr Taylor cannot rely on the non-fulfilment of the condition precedent to excuse his breach of contract. The consequence of this is not that the condition precedent is deemed to be fulfilled, since the fictional fulfilment of conditions precedent is no part of English law (Thompson v. ASDA-MFI Group plc [1988] Ch. 241; Little v. Courage Ltd (1994) 70 P. & C.R. 469). Rather, the prevention of the fulfilment of a condition precedent is a breach of contract for which the injured party is entitled to damages. The damages will take into account the chance that, irrespective of the breach of contract, the condition would not have been fulfilled anyway (Inchbald v. Western Neilgherry Coffee, Tea & Cinchona Plantation Co. Ltd. (1864) 17 C.B.N.S. 733, as explained in Thompson v. ASDA-MFI Group plc).
286. I conclude, therefore, that Mr Taylor was in breach of contract in providing his producer services to BRP on "Living Proof" in respect of those tracks that would otherwise have been produced by him for RDM. I consider that if Mr Taylor had indicated that he would provide his producer services through RDM there would have been a high probability that RDM would have secured a contract from Warners for his services. I assess that probability at 75 per cent.

Bocelli: outline facts

287. On 1 January 1995 RDM had entered into a sub-publishing agreement with Edizioni Musicali Insieme SRL, an Italian corporation. This gave Insieme the exclusive right to publish RDM compositions in Italy. Insieme was a small record label. Among the artistes contracted to it was Sig. Andrea Bocelli, a classical tenor. Insieme appears to have been part of a group of companies, known as "Sugar"; and the two names are used interchangeably in the contemporaneous correspondence.
288. Mr Taylor and Mr Barry had written a song called "Follow Your Heart". It had originally been written with the idea that it would be sung by Cher, to accompany a film called "Tea with Mussolini" in which she was acting; and the title of the song had been taken from one of her lines in the film. However, it was not included in the film; so it was available for recording by another artiste. It was played to Sig. Bocelli. On 23 February 2000 Mr Rawling reported to M. Dreux-Leblanc that Sig. Bocelli had "fallen in love" with it and wanted to record it. A meeting was arranged between two Sugar personnel and Messrs Rawling and Dreux-Leblanc. Mr Taylor was not scheduled to attend. On 6 June 2000 RDM sent a draft producer agreement to Insieme, relating to three tracks, including "Follow Your Heart". The Schedule to the draft specified the producer as RDM. On 20 June 2000 Mr Rawling spoke to Monica Dahl at Sugar. He requested a writing session with Sig. Bocelli from 18 July to 20 July. He reported this to M. Dreux-Leblanc on the same day and said:

"We have also held our studio for the 1^st week of September for the recording of BOCELLI."

289. However, on 20 July Sugar, in a fax to M. Dreux-Leblanc, cancelled the arrangement for September. Among other things Sig. Bocelli did not wish to participate in writing sessions. Sugar suggested that the recording session be moved to November-December 2000. They also said that they would not consider songs not available for a co-publishing arrangement on a 50% basis. M. Dreux-Leblanc replied on the following day. He confirmed that Mr Rawling would be able to do the session in November and December on the terms and conditions of the draft that he had sent in June. He said that a co-publishing agreement would be available for songs written by Patrick Abrial and on future titles. He did not, however, offer "Follow Your Heart" on that basis. Nor did he mention Mr Taylor or his availability.
290. Some time in the late summer (probably in September) a meeting took place between M. Dreux-Leblanc and representatives of Sugar (including Ms Dahl).
291. On 30 October 2000 M. Dreux-Leblanc wrote to Mr Rawling asking whether there was any news on the Bocelli recording.
292. On 17 November 2000 Ms Dahl wrote to Mr Rawling. She said that it would be better if he and M. Dreux-Leblanc came to Milan to discuss the eventual production of various titles, including "Follow Your Heart". Mr Taylor was not invited to the meeting, even though it was called to discuss the production of "Follow Your Heart". Mr Rawling passed on the fax to M. Dreux-Leblanc, saying:

"Its pretty self-explanatory, I will have to explain to them that I will be leaving, and therefore will not be involved in this record."

293. On 23 November 2000 Mr Rawling sent a fax to M. Dreux-Leblanc in which he said:

"Obviously you are aware of [BOCELLI] I would imagine as its SUGAR MUSIC this deal could be around £15000 to 20000 per track."

294. On 22 December 2000 M. Dreux-Leblanc wrote to Mr Taylor. He said:

"In order to issue the relevant contracts concerning the Andrea BOCELLI Album production, could you please confirm without fail by return that you are the sole producer on this production."

295. Mr Taylor does not appear to have replied.
296. On 1 February 2001 Sugar wrote to M. Dreux-Leblanc. They said that "Follow Your Heart" had been selected for inclusion on the Bocelli album. They continued:

"With regards to the publishing side of the composition, everything has already been settled between our companies. With regards to the production side, we will deal directly with Brian [Rawling] his engagement as producer of the track."

297. On 3 April 2001 Sugar invited Mr Rawling to a meeting in Milan with his arranger. He was to bring with him a new arrangement of "Follow Your Heart".
298. By May 2001 there had been a breakdown in communication between RDM and Sugar. M. Dreux-Leblanc wrote to Ms Dahl on 8 May. He complained that over the previous three months Ms Dahl had, apparently, failed to return numerous telephone calls; had failed to confirm when "Follow Your Heart" would be recorded by Sig. Bocelli; and that the recording had in fact already been carried out with Mr Rawling as the producer. Ms Dahl replied on 10 May. She said:

"I know that you did send the production agreement and Carlo informs me that it was amended but never signed by any of the parties. We did briefly discuss this matter when you came to Milan but mainly we did discuss the publishing situation on "Follow Your Heart"."

299. On the question of production she said that they had not yet recorded "Follow Your Heart"; but they had a verbal agreement with Mr Rawling for the production and they wanted him to produce the song. She said that they did not know the situation as regards RDM and Mr Rawling; and suggested that M. Dreux-Leblanc take it up with Mr Rawling. She added that if there were a problem "we probably would be forced to cancel the recording of this song".
300. On 15 May Mr Negus-Fancey, representing Mr Rawling, wrote to Ms Dahl asserting that Mr Rawling was no longer under any commitment to RDM and that he was entitled to undertake any production work he wished to on his own account. Ms Dahl spoke to Mr Rawling and Mr Negus-Fancey on the same day, and they confirmed what she had already been told. She reported this to M. Dreux-Leblanc. M. Dreux-Leblanc replied to Ms Dahl on 27 May. He said that:

"as you know "Follow Your Heart" can be only an RDM song."

301. He and Ms Dahl spoke on 31 May. On the following day, RDM's then solicitors sent a letter to Mr Rawling. It asserted RDM's entitlement to the production on a number of different grounds. On 8 June 2001 Ms Dahl sent a fax to both M. Dreux-Leblanc and Mr Rawling. Under the caption "Follow Your Heart" it said:

"To be able to include the above mentioned song in the selection process for Andrea Bocelli's new pop album to be released worldwide in October this year, I need to have from both of you a signed document confirming that the production issue has been solved between you. We also need a signed document from [RDM] confirming the legal right to record this song with Andrea Bocelli.

If we do not receive these documents within Friday the 15^th of June, we are obliged to withdraw the song from the selection process for Andrea Bocelli's album."

302. Mr Rawling prepared letters to Ms Dahl on 13 and 15 June. In the letter of 13 June Mr Rawling offered to stand aside as the individual producer of the track and suggested that Sugar engage Mr Robin Smith if he were available. It is not clear whether these letters were sent, because on 18 June Ms Dahl wrote to Mr Rawling and M. Dreux-Leblanc saying:

"As I have not received any answer from my fax dated June 8^th concerning the song above mentioned, I have to inform you that we are obliged to withdraw the song from the selection process for Andrea Bocelli's new pop album."

303. On the same day M. Dreux-Leblanc sent a copy of the letter to Mr Taylor, commenting:

"This reaction of SUGAR is due to the behaviour of Brian RAWLING during the negotiation of this project. We want to focus on the point that we regret this behaviour and this decision, considering the high quality of this title which was produce in the RDM studio with the great sound that you know."

304. On 26 June Mr Rawling wrote to M. Dreux-Leblanc. He said that he was happy to sit down and see if their differences could be resolved. In his reply on 29 June M. Dreux-Leblanc complained that Mr Rawling had refused to meet; and asserted that "Follow Your Heart" had been produced in RDM's studio in London while Mr Rawling was still an employee of RDM. Consequently, he said, RDM must be paid for the work realised in its studio. On 9 July Mr Rawling replied. He said that the record did not exist until he was commissioned by Sugar in 2001 and that the vocals and track had been recorded in May 2001. He acknowledged that Mr Barry had sung a demo for a movie; but said that that was in a different key and was not suitable for recording by Sig. Bocelli. He reiterated his willingness to meet.
305. Meanwhile Ms Dahl was becoming anxious. Although Sugar had formally withdrawn "Follow Your Heart" from the selection process, there was a glimmer of hope that it could be reinstated; but time was running out. On 16 July time finally ran out and "Follow Your Heart" was excluded from the selection process. Mr Rawling responded immediately, asking for another 48 hours in which to persuade RDM to grant a first mechanical licence. That same day Messrs Barry and Taylor sent a fax to M. Dreux-Leblanc calling on him to grant the licence and alleging that a failure to do so would be a breach of their respective publishing agreements. On the same day, Mr Rawling suggested to Ms Dahl that in view of the problem over production, Sugar should keep the production royalties until the dispute was resolved.
306. On 20 July RDM prepared an escrow agreement and sent copies of it to Mr Rawling and Ms Dahl. In the covering letter RDM confirmed that it had no objection to Sig. Bocelli recording "Follow Your Heart". The draft agreement recited that RDM was the copyright owner of "Follow Your Heart". It went on to recite that there was a dispute between RDM and Messrs Rawling and Taylor as to "the production rights generally for Follow Your Heart and others tracks produced by Brian RAWLING and Mark TAYLOR for the new Andrea BOCELLI album." Clause 1 contained a consent by RDM and Messrs Taylor and Rawling to the inclusion of "Follow Your Heart" on the album. Clause 2 contained a definition of "the Production Fund" and said that the Production Fund should be paid by Sugar into a separate account. The Production Fund was defined as:

"All sums howsoever due from Sugar for the production of Follow Your Heart and others tracks"

307. Clause 6 said that the producer's credit for "Follow Your Heart" and the other tracks should read:

"Produced by Mark TAYLOR for RIVE DROITE MUSIC Productions".

308. On 25 July Mr Rawling, in a fax to Ms Dahl commented on the draft agreement:

"Obviously you've seen what Leblanc has sent you regarding the credits on "Follow Your Heart". I think it should read produce by Mark Taylor and Robin Smith with no reference to my name.

If Royalties have to be frozen on "Follow Your Heart" then on this one track it is agreed."

309. In accordance with this suggestion Ms Dahl sent revised credits to RDM on the following day. The producer credit was: "Produced by Mark Taylor and Robin Smith". She said that confirmation of the credit was required by the following day (27 July). On the same day, 26 July, Mr Negus-Fancey returned the draft, amended on behalf of Messrs Rawling and Taylor. The significant amendments were:

i) The restriction of the sums to go into the escrow account to "production royalties", rather than "all sums due … for production";

ii) The restriction of the tracks to "Follow Your Heart", rather than "Follow Your Heart and other tracks";

iii) The alteration of the producer credit to "Produced by Mark TAYLOR and Robin Smith", rather than "Produced by Mark TAYLOR for RIVE DROITE MUSIC Productions".

310. On 27 July RDM raised some questions on the credits, which they said they needed before approving them. Ms Dahl responded to the questions that same day. Ms Dahl passed on the amended agreement to RDM. On 30 July Mr Negus-Fancey sent a fax to RDM saying that the draft escrow agreement as submitted was unacceptable.
311. On 3 August 2001 Ms Dahl wrote to M. Dreux-Leblanc. She said:

"After several weeks of attempts to solve the various matters still pending concerning the above mentioned song (both Filippo, Andrea and I tried to call you last week but you did not take our calls or call us back) you have obliged us not to include the above mentioned song on Andrea Bocelli's new Pop album as all matters are still unresolved.

We feel very frustrated and upset about this, we have spent a lot of money on the production of the song and we think it is a beautiful recording which would have fitted extremely well on the record.

We also think we have been treated very unprofessionally and that we are unfairly "paying" because of the litigation between you and Brian."

312. M. Dreux-Leblanc replied on the same day. He asked Ms Dahl to explain what were the various matters still pending. He said that RDM had sent an agreement confirming that the master recording could be released and that RDM's lawyers were waiting to hear from Messrs Rawling and Taylor's lawyer. He said that he had received no telephone messages from any of Sugar's personnel on his various numbers during the previous week. In a PS he invited Ms Dahl to telephone him to see whether there was a solution.
313. According to Ms Dahl's reply of 5 September (over a month later) M. Dreux-Leblanc's fax of 3 August was received at Sugar's offices after they had closed for the annual holiday. She pointed out, however, that on 30 July he had received a fax from Mr Negus-Fancey saying that the terms were unacceptable; and that on 31 July he had received the amended terms to which Messrs Rawling and Taylor were prepared to agree. She reiterated that she had been unable to speak to him on the telephone; and also said that RDM had never given confirmation for the revised credits. On 5 September M. Dreux-Leblanc wrote to Ms Dahl's superiors at Sugar, suggesting a meeting. On 11 September he wrote to Mr Rawling, giving contact details for RDM's lawyer, and saying that he would be happy to continue to negotiate a solution.
314. Sugar replied to M. Dreux-Leblanc's fax of 5 September, expressing a willingness to meet, but otherwise standing by Ms Dahl's fax of 5 September.
315. On 24 September 2001 Mr Negus-Fancey wrote to RDM's lawyers inviting agreement to his amended version of the escrow agreement. There does not appear to have been a reply.

Bocelli: the issues

316. There are two issues relating to the Bocelli album. One issue is whether RDM is entitled to producer fees and royalties for the production of those tracks on the Bocelli album that were in fact produced by Mr Taylor. RDM's case is that it had reached a binding agreement with Sugar for the production of the tracks. The agreement was reached in the summer of 2000, at a time when Mr Rawling was still an employee of RDM and that Mr Taylor had been nominated by RDM to be the individual responsible for the production of the tracks. Consequently he produced the tracks under the terms of the producer agreement between him and RDM, with the result that he is liable to account to RDM for its share of the producer fees and royalties. Mr Taylor's case is that there was no concluded agreement between RDM and Mr Rawling before he and Mr Rawling left RDM.
317. Under clause 6 (a) of the publishing agreement RDM had an obligation to use "all reasonable endeavours" to exploit the compositions. The other issue is whether there has been a breach of that obligation. Mr Taylor says that there was a breach. Put shortly, he says that if RDM had not been slow and difficult over agreeing the terms of the escrow agreement, "Follow Your Heart" would have been included on the album. RDM says that it acted reasonably throughout; and that the difficulties were caused by Mr Rawling.

Bocelli: discussion and conclusions

318. Did Mr Taylor agree to undertake the production work on the Bocelli album for RDM? He insists that he did not. M. Dreux-Leblanc insists that he did. The contemporaneous documentation is, in my judgment, more consistent with Mr Taylor's evidence than M. Dreux-Leblanc's. Thus:

i) Mr Taylor was not scheduled to attend the meeting with Sugar in May 2000;

ii) Mr Taylor was not mentioned as the producer in the schedule to the draft producer agreement which M. Dreux-Leblanc prepared in June 2000. Bearing in mind M. Dreux-Leblanc's stress on the importance of the named producer in pitching for business, this omission is telling;

iii) The exchange of correspondence between Sugar and RDM of July 2000 (in which the proposed September 2000 recording session was cancelled and rescheduled for November-December 2000) made no mention of Mr Taylor's availability, but only Mr Rawling's;

iv) Sugar's letter of 17 November 2000, stating that it wished to discuss the "eventual production" of two songs plus "Follow Your Heart", was addressed to Mr Rawling (and copied to M. Leblanc) and made no reference to Mr Taylor;

v) Although in his letter of 15 December 2000 Mr Taylor said that he would complete projects he had agreed to do, M. Dreux-Leblanc did not apparently take this as referring to the Bocelli project, since he asked for specific confirmation in his letter of 22 December.

319. Mr Sutcliffe urged me not to take the contemporaneous correspondence at face value, because no one from Sugar had been called to give evidence, and because Sugar were part of a conspiracy (together with Mr Rawling and Mr Taylor) to divert work from RDM. This was, I think, M. Dreux-Leblanc's belief. But part of the reason for M. Dreux-Leblanc's evidence was, I think, his false belief that the bulk of the production work had been done at Home Park House before the end of September 2000. That he had this belief is apparent from his letter of 29 June 2001, in which he asked Mr Rawling to send him "Follow Your Heart" as recorded "in the RDM Studios". In cross-examination he explained:

"I said in fact, maybe it came in September, 2000 I didn't know, when he came to put his voice, but the track was finished, fully finished, and I thought maybe at this time, maybe he came in September after they had rumours that in fact the voice on this backing track had been put by Andrea Bocelli in January 2001. But me, I didn't have evidence."

320. There is, indeed, no evidence that any work of production was actually done at Home Park House on the Bocelli album. I see no reason not to take the contemporaneous correspondence at face value; and I prefer Mr Taylor's evidence to M. Dreux-Leblanc's. The claim based on breach of the producer agreement fails.
321. I turn, then to the claim by Mr Taylor that RDM failed to use all reasonable endeavours to exploit "Follow Your Heart". There is no doubt in my mind that the reason why "Follow Your Heart" was not included on the Bocelli album was because of the unresolved dispute over production. Mr Mill submits that in fulfilling its role as Mr Taylor's publisher under the publishing agreement, RDM was not entitled to allow its interests as a production company to prevail over its duties as publisher. Although he did not quite put it this way, what he was in effect saying was that in deciding what efforts are required under an obligation to use "all reasonable endeavours", there should be excluded from consideration those interests that are collateral to the purpose of the publishing agreement. RDM's reasonable endeavours were contractually obliged to be endeavours directed towards securing a particular contractual objective; namely the exploitation of the song. Endeavours directed towards securing a quite different objective, namely the protection of RDM's perception of its rights to production fees and royalties, were not the right kind of endeavours at all; whether or not they were reasonable. Quite apart from anything else, RDM's obligations as publisher were owed not just to Mr Taylor (who was embroiled in the dispute over production) but to Mr Barry as well, who was not. In my judgment Mr Mill's submission is correct. I consider that RDM were not entitled to use the dispute over the question of production as a reason for not allowing the exploitation of the song.
322. In addition, once the dispute over production had come to the boil, M. Dreux-Leblanc made very little effort to resolve it. On 8 June 2001 Ms Dahl sent a fax dated to both Mr Rawling and M. Dreux-Leblanc saying that she required a document confirming that the production issue had been solved between them by Friday, 15 June 2001, or Sugar would be obliged to drop the song from the Bocelli album. Mr Rawling made various efforts to comply with Ms Dahl's request before the deadline (including offering to give up his producer credit), but M. Dreux-Leblanc did not reply by the deadline. As a result, on 18 June 2001 Ms Dahl said she was obliged to withdraw the song from the selection process. M. Dreux-Leblanc did not try to persuade her to change her mind, but sent a letter to Mr Taylor and Mr Barry, blaming "the behaviour of Brian Rawling" for the withdrawal of the song. Mr Rawling by contrast suggested to Ms Dahl that in view of the problem over production, Sugar should keep the production royalties until the dispute was resolved. Although RDM prepared a draft of the escrow agreement, its terms encompassed not merely the production royalties for "Follow Your Heart" but four other tracks as well, even though the composition of those tracks was nothing to do with either Mr Taylor or Mr Barry. Moreover, after Sugar had amended RDM's draft, and required a response M. Dreux-Leblanc did not respond until after the deadline, by which time it was too late to include the song on the album.
323. I therefore agree with Mr Mill that RDM did not use "all reasonable endeavours" to secure the inclusion of "Follow Your Heart" on the Bocelli album. Mr Taylor's claim for breach of contract succeeds.

Unlawful interference

324. This issue relates to computer files which should have been stored at Home Park House. RDM's case is that following the departure of Mr Taylor and RDM's other in-house producers from Home Park House at the end of 2000, it discovered that all computer files relating to projects that Mr Taylor had been involved in on behalf of RDM had been wiped from his studio computer. Moreover, all back-up tapes and CDs and the like had been removed from the studios and from the tape copy room. A number of tapes and CDs were found heaped in a shower in the basement at Home Park House. The remainder were missing altogether. RDM was unable to reconstruct the deleted files. As a consequence of the deletion of these files and the removal of back-up materials from Home Park House, RDM has been unable to deliver materials relating to certain projects as and when required by the relevant record company or artist.
325. So far as the deletion of files from his computer was concerned, Mr Taylor accepted that he had done this. However, he said that this was standard practice once a project had been finished. Mr Stack gave evidence to the same effect. Despite Mr Sutcliffe's submission to the contrary, I do not think that Mr Cowell (who is a producer currently employed by RDM) specifically disagreed with this. Nor did Mr Turbitt. In principle, I accept that, once a project is finished, files relating to that project will be deleted from the computer and kept on a back-up CD.
326. However, Mr Taylor said that the Hall & Oates project which he had been working on shortly before he left RDM, had not yet been accepted although the tracks had been delivered, and "there was a potential for that to have needed some tweaks". That project was not, therefore, a finished project, and the files relating to it ought not to have been deleted from the computer. RDM were unable to supply Sony with all the materials requested relating to the Hall & Oates project. However, Mr Taylor and Mr Rawling were able to do so, and it appears that they did so from materials which were supplied to them by an engineer whom Hall & Oates used. They may have come from RDM, although the evidential position was far from clear.
327. Mr Taylor also accepted that there were back-up copies of the Hall & Oates project at BRP's premises (and I accept this evidence in preference to Mr Rawling's denial that there were any such back-ups).
328. In my judgment RDM has established its case in relation to the Hall & Oates project in so far as it alleges that files were improperly deleted from Mr Taylor's computer and that back-up copies were wrongfully removed from Home Park House. However, I am not satisfied that it has established its case that no materials relating to the Hall & Oates project were left at Home Park House.
329. So far as the remaining projects are concerned, I am not satisfied that RDM has proved its case. The high point of RDM's case was Mr Turbitt's evidence that:

"When we left, I took with me my computer files containing the bank of sound elements I had built up over the years. I do not know what computer materials others took, but I do recall Mark Taylor saying words to the effect that he was taking some of his but leaving enough to make it look like he had not removed files."

330. Mr Taylor accepted that he had removed his sound library from Home Park House. I did not understand Mr Sutcliffe to suggest that he was not entitled to do so. I cannot see that there is any real distinction between Mr Taylor's "sound library" and Mr Turbitt's "bank of sound elements"; or that Mr Turbitt's evidence points to the conclusion that Mr Taylor removed anything other than his sound library.
331. Mr Mill submits that, even if files were wrongly removed from Home Park House, there is no evidential basis for concluding that it was Mr Taylor himself who removed them. I do not think that this matters. Any deletion of files and wrongful removal of back-ups was carried out as part of a common design to which Mr Taylor was a party. Thus he is liable jointly for any tort committed as part of that common design.

Minimum Commitment

332. This issue only arises if I am wrong in holding that the term of the publishing agreement was two years. It is common ground that if (a) the term of the publishing agreement is three years and (b) the minimum commitment clause is enforceable against Mr Taylor by an award of damages, then Mr Taylor is in breach and liable accordingly. The minimum commitment clause required Mr Taylor to deliver 10 new compositions in each twelve month period of the agreement. Clause 12 (b) said:

"In the event that the Writer fails to fulfil the Writer's Minimum Commitment for any 12 (twelve) month period as aforesaid at least 60 (sixty) days prior to the expiration of the relevant 12 (twelve) month period then without prejudice to any other rights of the Publisher the said 12 (twelve) month period of the Agreement shall be automatically extended without further notice or payment from the Publisher until 60 (sixty) days following the fulfilment of the Writer's Minimum Commitment for the said 12 (twelve) month period (and the Term hereof shall be deemed extended accordingly) provided that no one period of extension shall exceed 2 (two) years SAVE THAT, notwithstanding any failure to fulfil the Minimum Commitment, no extension shall be applied in the event that all advances actually paid to the Writer hereunder have been recouped, including a estimate made in good faith by the Publisher of so-called "pipeline" income"

333. Mr Taylor says that he was told on a number of occasions, both by Mr Rawling and by M. Dreux-Leblanc, that the minimum commitment clause would not be enforced against him. He signed the publishing agreements (and in particular the 1998 agreement), on the faith of those assurances, and consequently RDM is not entitled to enforce the minimum commitment clause against him. The defence is thus one of promissory estoppel. I did not understand Mr Sutcliffe to dispute the legal basis of Mr Taylor's defence. (Mr Mill also put the case on the basis of collateral contract. However, since the consideration for the making of a collateral contract is entry into the main contract, this would require a repetition of the collateral promise each time a new contract was made. Mr Taylor's evidence did not go that far). The dispute therefore is purely factual: was Mr Taylor told what he says he was told?
334. Mr Taylor said in his witness statement that after taking his draft 1995 agreement to Mr Cornish he became concerned about the minimum commitment clause. The reason for his concern was that he saw himself primarily as a producer rather than a songwriter and he did not want his term to continue if he had not written enough. He went on: "Mr Rawling said that I should not worry as it would never be applied to me". Mr Taylor also said that when he went over the Paris to sign the 1995 agreement, he mentioned to M. Dreux-Leblanc the comfort that Mr Rawling had given him. He continued: "I cannot recall how [M. Dreux-Leblanc] responded but it must have been positive as otherwise I would not have been happy to sign the agreement." In cross-examination he said that he recalled having a reservation about the clause but that he could not recall what "what was actually said". Mr Rawling also said that he reassured Mr Taylor that "he should not worry about the minimum commitment clause as his main role was producing".
335. M. Dreux-Leblanc had no recollection whether Mr Taylor raised the point in Paris, but he was inclined to think that he had not.
336. Bearing in mind that to raise a defence of promissory estoppel, it is necessary to prove a "clear and unequivocal representation" by the representor that he will not rely on his legal rights, I do not consider that Mr Taylor has discharged the burden of proof in showing that M. Dreux-Leblanc made the representation. Mr Rawling's evidence was not directly challenged; but Mr Sutcliffe relied on his general statement that he himself dealt with the split, the term and the advance, and left the rest of the deal terms to M. Dreux-Leblanc. However, Mr Rawling did also say that he discussed the cover clause with writers; and since his evidence about discussion of the minimum commitment clause was not directly challenged (and, for that matter, Mr Taylor's evidence about his discussions with Mr Rawling on this particular topic was not directly challenged either), I accept it.
337. I find, therefore, that in response to Mr Taylor's concern, Mr Rawling said that the minimum commitment clause would never be enforced against him. This is not a surprising thing. Both Mr Rawling and M. Dreux-Leblanc saw Mr Taylor as a producer, rather than a songwriter. M. Dreux-Leblanc emphasised more than once that the purpose of the publishing agreement with Mr Taylor, so far as RDM was concerned, was to ensure that he had a regular income while production got off the ground. The purpose of providing Mr Taylor with a regular income while production got off the ground would have been seriously compromised if RDM retained the right to sue Mr Taylor for damages for failing to deliver songs. In other words, RDM were not particularly interested in Mr Taylor's songwriting abilities. In my judgment what Mr Rawling told Mr Taylor was a clear and unequivocal representation that RDM would not rely on its legal right to enforce the minimum commitment clause, and the force of that representation continued into the making of the 1998 agreement. I have already discussed Mr Rawling's authority. An assurance about the minimum commitment clause would have been within his ostensible authority, and in my judgment it bound RDM.
338. Had it been necessary for me to decide this issue, I would have held that RDM were estopped from enforcing the minimum commitment clause.
339. Mr Mill had an alternative submission under this head. He said that damages were not recoverable for breach of the minimum commitment clause. Rather the publisher's remedy was the automatic extension of the relevant twelve month period under clause 12 of the agreement. In Stocznia Gdanska S.A. v. Latvian Shipping Co [1998] 1 WLR 574 at 585 Lord Goff of Chieveley referred to "the familiar principle of construction that clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by operation of law". The usual remedy for breach of contract which arises by operation of law is an award of damages. What words are there to deprive RDM of that remedy? In my judgment none. On the contrary, the automatic extension of the contract is expressly stated to be "without prejudice to any other rights of the Publisher". To be sure, it may be extremely difficult to assess damages if, say, the writer has writer's block and has written nothing. Would his songs have been good, bad or indifferent? Even accepting that they must be of a quality commercially acceptable to the publisher, it may be nigh on impossible to gauge the potential commercial success of an unwritten song. On the other hand, the writer may have a drawer (or computer) full of finished songs, which he has simply failed to deliver to the publisher. In my judgment, had the minimum commitment clause been enforceable against Mr Taylor, he would have been liable for damages for breach of it.

Conclusions

340. I am now in a position to summarise my answers to the agreed list of issues. I deal with the publishing issues as follows:

i) Issue 1. On its true construction was the term of the 1998 agreement two years or three years? Answer: two years;

ii) Issue 2. If, on its true construction, the term of the 1998 agreement was two years, is RDM entitled to have it rectified to provide for a term of three years? Answer: No;

iii) Issue 3. What was said to Mr Taylor about the operation of the cover clause, and what, if any relief is he entitled to in consequence? Answer: Mr Taylor was told that the cover clause would apply only where a sub-publisher procured a recording, in consequence of which RDM's margin was reduced;

iv) Issue 4. Did RDM fail to use all reasonable endeavours to exploit "Follow Your Heart"? Answer: Yes;

v) Issue 5. What songs did Mr Taylor compose during the disputed term and is he bound to deliver them to RDM? Answer: the songs composed during the disputed term were not, in the end, in issue; but in any event Mr Taylor is not bound to deliver them to RDM;

vi) Issue 6. If Mr Taylor did not compose 10 songs during the disputed term, is he is in breach of the minimum commitment clause? Answer: does not arise, but see answer to issue 7;

vii) Issue 7: Is RDM estopped from enforcing the minimum commitment clause against Mr Taylor? Answer: Yes;

viii) Issue 8. Did Mr Taylor breach clause 5 (b) of the 1998 agreement by entering into his agreement with Metrophonic? Answer: No;

ix) Issue 9. Did Mr Taylor infringe RDM's copyright in "Hero" and "Love to See You Cry"? Answer: Yes, in relation to copyright in the versions of "Hero" (both literary and musical) and "Love to See Your Cry" (musical), as they existed on 1 December 2000; but not in relation to sound recordings;

341. I turn now to the production issues:

i) Issue 1. Who concluded the producer agreement? Answer: Mr Taylor and Mr Rawling;

ii) Issue 2. Did Mr Taylor agree to provide his services on an exclusive basis: Answer: No;

iii) Issue 3. Was it an implied term that, in respect of any project that Mr Taylor had agreed to carry out, he would not provide his services to anyone other than RDM? Answer: Yes, if RDM secured the project; but it was also an implied term that Mr Taylor would not do anything to prevent RDM from securing a project and Mr Taylor is in breach of that implied term;

iv) Issue 4. What period of notice, if any, was Mr Taylor required to give of his desire to cease providing producer services to RDM? Answer: None;

v) Issue 5. What agreement, if any was reached between Mr Taylor and RDM about the timing of RDM's accounting to Mr Taylor for his share of (i) producer advances and fees and (ii) producer royalties? If no agreement was reached what terms are to be implied? Answer: The initial position was that RDM would account to Mr Taylor by preparing six-monthly statements for the periods 1 January to 30 June and 1 July to 31 December with payment to be made within 90 days of the end of the accounting period. It was subsequently agreed that accounts for producer royalties would be prepared for the periods 1 May to 31 October (payable by 1 January) and 1 November to 30 April (payable by 1 July). There was an implied term of the agreement that RDM would provide Mr Taylor with details of monies it received in relation to advances or fees within a reasonable time of completion of a project, when all necessary information was available, and that it would pay any such sums due to him within a reasonable time of receipt of his invoice;

vi) Issue 6. What deductions could RDM make before accounting to Mr Taylor? Answer: The cost of hiring session musicians (and backing vocalists), and £150 as the notional cost of tapes, but not other third party costs;

vii) Issue 7. What projects did Mr Taylor agree to work on for RDM before 30 November 2000; and did he fail to deliver those projects in breach of the producer agreement? Answer: Mr Taylor was nominated for the Cher project and had agreed to work on it; and was in breach of contract in having contributed to RDM's failure to secure the project;

viii) Issue 8. When did Mr Taylor cease to provide his producer services to RDM; and did he carry on working at Home Park House after 30 November 2000? Answer: Mr Taylor ceased to provide his producer services to RDM on 30 November 2000; and did not work as a producer at Home Park House after that date;

ix) Issue 9. Did Mr Taylor fail to inform RDM of the progress of projects? Answer: This issue was not pursued;

x) Issue 10. Did Mr Taylor fail to provide credit information to RDM? Answer: This issue was not pursued;

xi) Issue 11. Did Mr Taylor infringe RDM's copyright in sound recordings? Answer: No;

xii) Issue 12. Was Mr Taylor in breach of an obligation under the producer agreement to assign copyright to RDM? Answer: This issue was not pursued.

342. The final issue relates to the claim for unlawful interference. RDM has established its case in relation to the Hall & Oates project in so far as it alleges that files were improperly deleted from Mr Taylor's computer and that back-up copies were wrongfully removed from Home Park House. It has not established its case that no materials relating to the Hall & Oates project were left at Home Park House. So far as the remaining projects are concerned, RDM has not proved its case.
343. I will leave for discussion with counsel what order I should make to give effect to my judgment and what (if any) directions I should make for the future conduct of the case.