England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		7 Rolls Buildings Fetter Lane London EC4A 1NL
		16 July 2014

JUDGE HODGE QC: This is my extemporary judgment on the hearing of applications by the defendants in two claims commenced by the respondent and claimant, Mr Lawrence Miller, on 26 February 2014.
1. In claim HC14E00826 the defendants are Experience Hendrix LLC, Mr Houston Reed Wasson and Miss Janie Hendrix. The second defendant, Mr Wasson, is the former in-house counsel to the first defendant limited liability corporation. The third defendant, Miss Janie Hendrix, is the first defendant's chief executive officer.
2. In the second claim, HC14F00827, the individual defendants are Mr Patrick J Gardiner and Mr Nicholas E Valner who are both solicitors and former partners in the third defendant limited liability partnership, Eversheds. Eversheds had acted as solicitors for Experience Hendrix LLC in earlier litigation.
3. Sadly, the second defendant in claim HC14F00827, Mr Nicholas Valner, passed away on Sunday 13 July 2014. Ms Claire Blanchard QC, who appears for the defendants and applicants, invites the court to direct, pursuant to CPR 19.8(1)(a), that claim HC14F00827 continue in Mr Valner's absence; and, pursuant to CPR 19.8(5), that it be declared that any judgment or order in claim HC14F00827 be binding upon Mr Valner's estate. I propose to make such orders if the defendants' applications are successful before me.
4. The two claims presently before the court are the sequel to two earlier claims in which Experience Hendrix LLC obtained summary judgment against the claimant, Mr Lawrence Miller, and his former company, Purple Haze Records Limited (to which I shall refer as PHL). PHL was dissolved in August 2006.
5. The first claim by Experience Hendrix LLC was heard by Hart J, sitting in the Chancery Division, on 24 February 2005. His judgment bears the neutral citation number [2005] EWHC 249 (Ch) and is reported at [2005] EMLR 18.
6. By his order, made on Experience Hendrix LLC's application for summary judgment against PHL and Mr Miller, Hart J held that PHL and Mr Miller had no real prospect of successfully defending the claim and that there was no other compelling reason why the claim should be disposed of at a trial. He declared (a) that Experience Hendrix LLC was entitled to the performer's property rights, including the reproduction and distribution rights, in two sets of live musical performances given by Jimi Hendrix in Sweden on 9 January 1969, (b) that no consent had been given by the claimant to the making or issuing to the public of copies of recordings of the Stockholm Performances by PHL and Mr Miller, and (c) that PHL and Mr Miller had infringed the claimant's reproduction and distribution rights by making and issuing to the public copies of recordings of the Stockholm Performances.
7. Hart J granted injunctive relief and made orders for the delivery up and forfeiture to Experience Hendrix LLC of all copies of recordings of the Stockholm Performances; and he directed either an inquiry as to damages or an account of profits, with payment to Experience Hendrix LLC of such sums (if any) as might be found due upon the taking of the inquiry or account, together with interest. For that purpose Hart J gave consequential directions.
8. Hart J gave permission to appeal to PHL and Mr Miller but the appeal was eventually struck out following various interlocutory orders made by Neuberger LJ, Jacob LJ, Lloyd LJ and Chadwick LJ.
9. The second claim was again by Experience Hendrix LLC. This time, in addition to PHL and Mr Miller, there was a third defendant, a Mr John Arthur Hillman. That claim related to the performance rights in a further nine compact disc recordings of concert performances by the late Jimi Hendrix. Again, Experience Hendrix LLC succeeded in obtaining summary judgment, on this occasion from Park J, on 3 May 2006. His judgment bears the neutral citation number [2006] EWHC 968 (Ch) and is reported at [2006] EMLR 25.
10. There was an appeal brought by Mr Hillman alone to the Court of Appeal. That appeal was dismissed on 24 May 2007. The neutral citation number of the Court of Appeal's judgment is [2007] EWCA Civ 501 and it is reported at [2008] ECC 9.
11. There matters rested until the latter half of last year. In or about July 2013 Mr Miller took delivery of some 43 cartons of documents from Harbottle & Lewis. They had acted as the solicitors for an entity, PPX Enterprises Incorporated, which had been the defendant to two earlier claims brought against them by Experience Hendrix LLC in which Experience Hendrix LLC had alleged breaches of a settlement agreement that had concluded earlier litigation concerning the performance rights in concert performances by the late Jimi Hendrix. It was as a result of Mr Miller's investigations into the contents of those cartons of documents that he formed the view that he could seek to have set aside the earlier judgments of Hart J and, consequently, Park J.
12. Initially, on 20 December 2013, Mr Miller issued an application notice in the proceedings that had been decided by Hart J seeking to allow him to reopen that case. The basis for his application was that Mr Miller had obtained an affidavit from a New York lawyer who had been the New York administrator of the estate of the late Jimi Hendrix and who had confirmed that the documents that Experience Hendrix LLC had relied upon to claim performance rights, with his signature upon them, was a fabrication and that the signature was not his. It was said to have been forged; and, further, that he would not have been legally able to sign the deed of assignment and assent dated 13 November 2000.
13. It was said that Experience Hendrix LLC and their in-house attorney had purposely deceived the court and perverted the course of justice. New evidence had been obtained that proved the fraud; and fraud, it was said, unravelled all. That application was supported by a witness statement from Mr Miller dated 19 December 2013 and a detailed skeleton argument from him. That application came before David Richards J on 16 January. Mr Miller appeared as a litigant in person. Upon the court noting that the correct or appropriate procedure to seek to set aside the judgment and order was by way of a new claim issued under part 7 of the Civil Procedure Rules, the court proceeded to dismiss the application. It was that that led Mr Miller to issue his two claims, 826 and 827, on 26 February 2014.
14. Claim 826 was said to be a claim to set aside the judgment and order of the late Hart J in February 2005. It was said that the claimant had obtained new evidence, in September or October 2013, that clearly proved that the defendants had invented false evidence to claim that they owned the performer's rights to the music of the late Jimi Hendrix. It was said that the defendants had deceived the court on three occasions and had perverted the course of justice.
15. After presenting the evidence before David Richards J, it was asserted that he had said that the correct or appropriate procedure was to seek to set aside the judgment by way of a new claim issued under part 7 of the Civil Procedure Rules, which the claimant was now said to be doing. Reference was made to the two claims against the claimant and his company, PHL, in which Experience Hendrix LLC has claimed to own the performer's rights to the music of the late Jimi Hendrix. It was said that to obtain those judgments, the defendants had invented false evidence to deceive the court and pervert the course of justice. That claim was accompanied by detailed particulars of claim.
16. Claim number 827 was a claim against Mr Gardiner and Mr Valner of Eversheds alleging that they had unlawfully interfered in the claimant's business causing financial damage. The defendants were said to have contacted numerous clients of the claimant fraudulently claiming that their client, Experience Hendrix LLC, owned the performer's rights to the music of the late Jimi Hendrix. They were said to have utilised "invented false evidence" to deceive the court and pervert the course of justice on three occasions, in two claims against the claimant and his company PHL, and in earlier litigation, which was said to be nothing to do with Mr Miller, against PPX Enterprises Incorporated. It was said that the claimant had obtained new evidence in September and October 2013 that clearly proved that the defendants had used false and fabricated evidence to deceive the court and pervert the course of justice. The claimant was claiming damages and costs for the defendants unlawfully interfering with his business and reputation by making fraudulent claims based upon forged documentation. The client was said to have, and to have had, no rights as the defendants had fraudulently claimed. In both claims, the value of the claim is said to be £5 million, plus interest, damages and costs. Claim 827 was also accompanied by detailed particulars of claim.
17. On 28 May 2014 the defendants to both claims issued application notices seeking either summary judgment under CPR part 24, on the footing that Mr Miller had no real prospect of success on the entirety of his claim, or issues arising within the claim, and that there was no other compelling reason for the claim to be disposed of at a trial; or, alternatively, that Mr Miller's entire claim, or issues arising within it, be struck out as against the defendants pursuant to CPR 3.4(2)(a).
18. By CPR 24.2 the court may give summary judgment against a claimant on the whole of a claim, or on a particular issue, if it considers that the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case or issue should be disposed of at a trial. By CPR 3.4(2) the court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim, or (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings. As with all procedural applications, in such cases the court must exercise its powers under those provisions of the CPR in accordance with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. By CPR 1.1(2) dealing with a case justly and at proportionate cost includes, so far as is practicable, (a) ensuring that the parties are on an equal footing, (b) saving expense, (c) dealing with the case in ways which are proportionate, (d) ensuring that it is dealt with expeditiously and fairly, (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases, and (f) enforcing compliance with rules, practice directions and orders.
19. On this application, the defendants are all represented by Ms Claire Blanchard QC. Mr Miller is a litigant in person. The court must therefore ensure that he is, insofar as is possible in those circumstances, on an equal footing in dealing with the defendants' applications. The defendants' applications are supported by a number of witness statements. There is a witness statement from Mr Patrick John Gardiner, who is one of the defendants to claim 827. He is now a solicitor with Michael Simkins LLP. His witness statement is dated 23 May 2014. There is also a witness statement from Janie Hendrix, the third defendant to claim number 826. Her witness statement is dated 27 May 2014. There is also a first witness statement from Mr Richard Macdonald Little dated 28 May 2014. He is a solicitor and partner with Eversheds, who are not only the third defendant to claim 827 but also act as the solicitors for all the defendants in both claims. Mr Little made a second witness statement dated 25 June 2014 in response to a fourth witness statement from Mr Miller.
20. Mr Miller has made a number of witness statements. I have already mentioned that which he made on 19 December 2013 in support of his original application notice that was dismissed by David Richards J. For the purposes of the present litigation, Mr Miller has made witness statements dated 14 February 2014, 9 June 2014, 15 June 2014, and, in response to David Richards J's later order, to which I will come in a moment, a fourth witness statement dated 23 June 2014. In addition to those, Mr Miller has produced a number of skeleton arguments. There is one dated 14 February 2014, and there are two separate skeleton arguments, in relation to each of claims 826 and 827, on 7 and 8 July 2014, and then there was a further response to Ms Blanchard's skeleton argument on 8 July 2014. I had had the benefit of pre-reading all of those documents before coming into court yesterday morning.
21. There has been a little confusion over the hearing bundles. Eversheds, for the applicant, had, as is customary, prepared a number of hearing bundles. Mr Miller has not co-operated fully in that task. He has produced a number of hearing bundles of his own. I have two very full blue lever-arch files of hearing bundles, and I also had two much slimmer A4 folders of documents, one for each of claims 826 and 827. Towards the end of the hearing yesterday, it became apparent that Mr Miller had said that he had in fact filed four blue lever-arch files. Ms Blanchard explained that the contents of all the files that Mr Miller had served upon Eversheds had been reproduced in the three lever-arch files produced by Eversheds. With a little difficulty I have been able to be taken to all of the documents to which Mr Miller has referred me; and I am satisfied that I have seen all the relevant documents upon which Mr Miller wishes to rely.
22. In advance of the hearing, Ms Blanchard had produced a very full 28-page written skeleton argument dated 7 July 2014, accompanied by a detailed 15-page chronology and a 3-page dramatis personae. She had also produced a suggested reading list, which, apart from certain passages in the judgments of Hart J and Park J and the Court of Appeal, and also from the pleadings in the earlier litigation, I had managed to pre-read. The application was opened by Ms Blanchard for an hour and 40 minutes, between about 10.30am and 12.10pm yesterday. Mr Miller then replied for about 45 minutes before the short adjournment and for about two hours thereafter, with a ten minute break at about 4.00pm. Mr Miller's submissions concluded at about 4.15pm. Ms Blanchard then replied for about 40 minutes from 4.15pm to 4.55pm, although her reply was interrupted on no less than four occasions by Mr Miller wishing to make various points. At 4.55pm last evening I indicated that I would rise and adjourn to deliver an extemporary judgment this morning at 11.00am, which I am now proceeding to do.
23. The document that the claimant, Mr Miller, seeks to impugn is a deed of assignment dated 13 November 2000, pursuant to which the rights in Jimi Hendrix's English estate are said to have been assigned to Experience Hendrix LLC. It is from this document that Experience Hendrix claims to derive title in the performance rights which were relied upon in the claims before Hart J and Park J. The deed of assignment had come into existence because of a perceived defect in the title of Experience Hendrix LLC to the performance rights which had emerged during the course of the first claim by Experience Hendrix LLC against PPX Enterprises Incorporated. In the course of her reply, Ms Blanchard took me to a letter from Eversheds, acting for Experience Hendrix LLC in the PPX litigation, to Harbottle & Lewis, who were the solicitors for PPX, dated 23 February 2001, at bundle C1, divider 4, page 95.
24. The deed of assignment and assent is expressed to have been made on 13 November 2000. The parties were Alan Leighton-Davis (described as the attorney), Kenneth D Hagood (described as the principal), James A Hendrix (described as the beneficiary), and Experience Hendrix Limited Liability Company (described as Experience Hendrix). There were eight recitals lettered A through to H. They read as follows:

"Whereas:

(A) James Marshall Hendrix ("the deceased") [with an address in New York] died on 18 September 1970 intestate and domiciled in the State of New York.

(B) By order dated 19 February 1971 of the Surrogate's Court of the State of New York County of New York the Principal was appointed as Administrator de bonis non of the goods, chattels and credits of the deceased.

(C) On 23 January 1973 Letters of Administration to the Deceased's estate were granted out of the Principal Registry of the Family Division of the High Court of Justice in England to the Attorney as lawful attorney of the Principal for the use and benefit of the Principal and until further representation be granted.

(D) No such further representation has been granted.

(E) By a consent order made on 7 March 1973 in the High Court of Justice Queen's Bench Division in England in an action numbered 1967 P No. 3007 between (inter alios) PPX Enterprises Incorporated ("PPX") and the Attorney ("the 1973 Agreement") PPX agreed with the Attorney to pay to the Deceased's estate the royalties and otherwise as therein mentioned.

(F) By a Distribution, Transfer and Set Over dated 30 March 1977 the Principal as such Administrator irrevocably distributed, transferred and set over to the Beneficiary as sole beneficiary and distributee of the Deceased's estate all right, title and interest which were of the Deceased or his estate in the property there mentioned which property included any claims of the Deceased's estate which might exist against PPX and Edward Chalpin, its principal.

(G) By an Assignment dated 11 August 1995 and/or an Assignment Confirmation dated 29 October 1998, in each case made between the Beneficiary and Experience Hendrix, the Beneficiary assigned and transferred to Experience Hendrix all his rights, title and interest in the 1973 Agreement.

(H) For the avoidance of doubt the parties have determined to execute this deed."

25. Following those recitals the deed went on to witness as follows:

"1. The Attorney as the personal representative of the Deceased and at the direction of the Principal and of the Beneficiary (as testified by their execution of this instrument):-

1.1 Assigns to Experience Hendrix and assents to the vesting in Experience Hendrix of the property referred to in the Schedule hereto.

1.2 Acknowledges the right of Experience Hendrix to production of the said grant of Letters of Administration of the Deceased's estate and to the delivery of copies thereof.

2. This deed should be construed and have effect in accordance with the law of England."

26. The execution clause provided that:

"In witness whereof these presents have been entered into as a deed the day and year first before written."

27. There then followed a schedule which provided that the assignment extended to:

"(i) All those rights, title and interest of the Deceased's estate in or under the 1973 Agreement and the whole benefit of the same.

(ii) All other (if any) property comprised in the Deceased's estate now vested in or belonging to or under the control of the Attorney as administrator thereof."

28. The deed purported to be signed as a deed and delivered, first by Alan Leighton-Davis in the presence of Branwen EV Castle of 118 High Street, Hurstpierpoint, West Sussex, who is described as a solicitor. In one version of the execution page there was then a blank against the execution of the deed by Kenneth D Hagood. The deed then purports to be executed by James A Hendrix, and by Janie Hendrix on behalf of Experience Hendrix Limited Liability Company. The back sheet appears to show that the document had been drafted by Eversheds.
29. In the second version of the deed, there is a manuscript amendment to the typed address for Mr Kenneth D Hagood in the United States of America. On the execution page, in addition to the execution by Mr Leighton-Davis, there also purports to be the signature of Kenneth D Hagood; and his execution purports to have been witnessed by a Gary Prashar, of the same corrected address in Long Island City, New York. Mr Prashar's signature as witness also has against it, in manuscript, the date 10 November 2000. That is the document which Mr Miller seeks to impugn in these two claims.
30. Upon what evidence does Mr Miller rely? First, and so far as the purported execution of the deed by Mr Leighton-Davis is concerned, Mr Miller relies upon a letter from Castles Solicitors dated 2 September 2013. It is signed by Mrs Branwen Castle who is a solicitor and partner in the firm of Castles of 118 High Street, Hurstpierpoint in West Sussex. She writes to Mr Miller as follows:

"Dear Lawrence,

Alan Leighton-Davis (deceased).

As requested, I am writing to confirm that my uncle, Alan Leighton-Davis, returned from France to the UK on 9 October 2000 due to ill health. He moved into sheltered accommodation in Limpley Stoke for a while before moving to a nursing home in Sussex. He died on 26 February 2003.

He suffered a series of mini strokes whilst in France and had had a serious diabetic condition for many years. When he returned to the UK he was physically very frail. In particular, he could not write because he could not hold a pen properly and his speech was impaired as a result of the strokes so communication was not easy.

I hope this information is of assistance. As you will appreciate, November 2000 is a long time ago and records and recollection hazy."

31. That is the evidence upon which Mr Miller relies to impugn the execution of the deed by Mr Leighton-Davis. So far as Mr Hagood's execution is concerned, Mr Miller had apparently spoken to Mr Hagood some time early in 2006. That appears from what was said by Mr Miller during the course of the hearing before Park J on Wednesday 22 March 2006. (I should explain that in the proceedings before Hart J, both PHL and Mr Miller had been represented by a firm of solicitors called Clive Sutton, who had retained the services of Richard Miller QC and Denise McFarland on behalf of both PHL and Mr Lawrence Miller. By the time the second proceedings came on before Park J, Mr Lawrence Miller was a litigant in person, representing both himself and also PHL. The third defendant to the proceedings, Mr Hillman, was represented by Mr Jonathan DC Turner of counsel.) In the course of representing himself before Park J, at page 71 of the transcript, Mr Lawrence Miller indicated that he was going to say that it was not Kenneth Hagood's signature on the deed, and he would show Park J that because, so Mr Miller said, he had spoken to Kenneth Hagood a couple of months earlier.
32. In the course of his address to this court, Mr Miller acknowledged that he had spoken to Mr Hagood at the time of the litigation before Park J; but until he had received, and inspected, the 43 cartons of documents from Harbottle & Lewis, it had not occurred to Mr Lawrence Miller that it might be worth going over to the United States to discuss the matter with Mr Hagood.
33. However, having inspected those documents, Mr Miller did contact Mr Hagood. Mr Hagood wrote to Mr Miller on 9 August 2013. The subject of his letter was the document, the deed of assignment and assent. In his letter, Mr Hagood said this:

"I have read the document entitled, 'This deed of assignment and assent', which you forwarded to me recently. First, I do not recognise or recall ever seeing this document. Second, the signature appearing on that document is similar to my signature but not in all respects, and I know the person in whose presence the signature purports to have been made, although it would have been highly unusual for me to sign such a document with that person as my witness. Third, the distribution, transfer and set-over referred to in the deed occurred on 30 March 1977. However, to my best recollection I did not sign any documents after that date as the administrator of the Jimi Hendrix Estate, nor would I have been empowered to do so.

Fourth, you will note that the purported witness signature on the third page of the deed entitled 'The Schedule' is dated 10 November 2000 and that there appears to be a line above that signature, indicating to me that this signature was photocopied and attached to this document with my purported signature, I believe, superimposed beneath that line. It would be my opinion that the deed is a fabrication insofar as it represents that I was a party to it as the principal. I had, in fact, in law relinquished that role and right in 1977 in the New York State Surrogate's Court and any such signature on 10 November 2000 would have been invalid and unenforceable."

34. That letter is said to have been subscribed and sworn to before a notary public in the State of New York on 9 August 2013.
35. Mr Miller subsequently received a signed and sworn witness statement from Mr Kenneth Dewey Hagood, signed on 15 October 2013 and sworn before a notary public on 21 October 2013. In it, Mr Hagood swore, deposed and said as follows:

"(1) I am an attorney duly admitted to practise in the State of New York who in the 1970s was a partner in the law firm Covington Grant Howard Hagood & Holland, Attorneys at Law, in the State of New York.

(2) I was asked by Leo Branton Junior, an attorney in the State of California, at the request of Al Hendrix, the sole distributee of Jimi Hendrix, to become the New York State administrator of the state of Jimi Hendrix.

(3) One of my partners, Edward O'Beel(?) Howard, now deceased, was asked to become the New York State attorney for the estate of Jimi Hendrix, also by Mr Branton.

(4) On 19 February 1971, the New York Surrogate's Court granted me, Kenneth D Hagood, letters of administration as the administrator of the estate of Jimi Hendrix.

(5) As the New York administrator, I carried out my duties as was required and, following the distribution of assets and liabilities transferred to Al Hendrix, represented by Leo Branton Junior, on 30 March 1977, my duties and responsibilities as the New York administrator of the estate of Jimi Hendrix were terminated by the New York State Surrogate's Court.

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

(7) Furthermore, following the distribution of assets and liabilities document dated 30 March 1977, I would not have been empowered as the New York administrator of the estate of Jimi Hendrix to have signed any such documents after that date.

(8) In addition, I would not have been empowered to authorise, direct or consent to Mr Alan Leighton-Davis to have executed this deed of assignment and assent dated 13 November 2000 after my termination as administrator of the estate of Jimi Hendrix on 30 March 1977 and did not do so.

(9) Looking at the deed of assignment and assent, it appears to have a line above my purported signature which seems to have been superimposed.

(10) It would be my opinion that this deed is a fabrication insofar as it represents that I was a party to it as the principal. I had, in fact and in law, relinquished that role and right in 1977 in the New York State Surrogate's Court and any such signature on 10 November 2000 would have been invalid and unenforceable.

(11) I, Kenneth D Hagood, affirm that the facts stated in this witness statement are true and correct."

36. I should mention that on the version of the deed of assignment purportedly executed by Mr Hagood and relied upon by the defendants (in bundle B1, divider 1, at page 7) there is no line above or around Mr Hagood's signature. It would appear that that may have appeared on the version that had been sent through to Mr Hagood for him to consider.
37. In addition to those documents, Mr Lawrence Miller also relies upon a letter dated 14 June 2014 from a firm of attorneys-at-law with offices in Madison Avenue, New York, known as Dickerson & Tomaselli, a limited liability corporation. That letter reads as follows:

"Re estate of Jimi Hendrix.

Dear Mr Lawrence,

You have enquired whether Mr Kenneth Hagood was empowered to execute a deed of assignment and assent dated 13 November 2000 as administrator of the estate. It is not known without examining the Surrogate's Court file when exactly Mr Hagood was appointed administrator or whether there were any limitations on his letters of appointment. I have examined the court file on several other occasions but not in connection with your line of enquiry.

It is believed that the estate was settled in the late 1970s after a final accounting was filed. A New York estate made the settlement formally by means of a receipt and release agreement signed by the distributee or settled judicially by the surrogate, which requires citation to be issued to all affected parties, the filing of a form of accounting and, if there are no objections to the accounting, requiring a hearing and testament, then a decree would be signed by the surrogate.

It is assumed that there was a formal judicial settlement with a decree entered. I do not have a copy to review. Typically, such a decree provides for the payment of commissions to the administrator, fees for the estate attorneys and the balance of funds remaining to the distributee. At that time, the distributee was James Al Hendrix.

The final paragraph of the decree customarily provides for a judge to decree that upon complying with the directions of this decree and the filing of the receipts for the payments herein directed, the petitioner hereby should be discharged as to all matters and things contained in this accounting and decree. So, assuming the decree in the Jimi Hendrix estate so provides, Mr Hagood was officially discharged shortly after making the payments and distributions.

There is one interesting development reflected in the court file. In December 1995, Jimi Hendrix Junior, represented by counsel, asked the surrogate to reopen the estate for a redetermination of the intestate distributee. Counsel for Jimi Junior represented to the court that the father's lawyer, Leo Branton Junior, handled the Swedish paternity proceedings and misrepresented to Mr Hagood that Jimi Junior lost the paternity proceedings when, in fact, he had won and was declared the son of Jimi Hendrix. A compromise was finally worked out with a substantial payment to the Swedish son, Jimi Hendrix Junior. Although I did not make a copy of it, Ken Hagood submitted an affidavit to the court in which he humbly explained he had no knowledge of the misrepresentations of James Al Hendrix, the decedent's father, and his lawyer. After this embarrassing episode, it is highly unlikely that Mr Hagood would have signed a deed of assignment in November 2000 favouring James Al Hendrix.

I do not recall anything in the court file indicating Mr Hagood sought approval from the Surrogate's Court to sign the November 2000 deed. I trust this letter will be helpful to you. Let me know if you require anything further."

38. As to that "interesting development reflected in the court file", it is worthy of note that Mr Hagood made no mention of the matter so identified, either in his letter to Mr Miller or in his sworn witness statement.
39. In the course of his oral submissions to me, Mr Miller handed up a document purporting to emanate from the public administrator of New York County and headed "The responsibilities of the public administrator". Mr Miller drew my attention to the highlighted text at paragraph G:

"After all assets are collected and the expenses of administration and valid debts and claims are paid, the public administrator will file an accounting with the New York County Surrogate's Court. The accounting is a document that reflects the actions taken by the public administrator on behalf of the estate. It details every penny collected and paid out. Persons with an interest in the estate, including distributees and claimants, are given notice of the accounting. The balance of the estate will be paid to the distributees, i.e. heirs of the decedent, as determined by the Surrogate's Court in the accounting proceedings. Once the estate has been distributed, the public administrator is discharged as the fiduciary."

40. Mr Miller also handed up a series of photocopies of the execution page of the deed of assignment purporting to bear Mr Hagood's signature. He did so for two purposes: first, to point out that there were differences in the signature; and, secondly, in support of a submission that Mr Hagood's signature might well have been traced on to the execution page. Given that the contemporaneous evidence shows that Mr Hagood signed two versions of the deed, it is not surprising that there are two different signatures. It is not open to this court to attempt to undertake a forensic examination of the signatures on various photocopies of the deed with a view to seeking to determine whether Mr Hagood's signature may have been traced thereon.
41. Those, essentially, are the documents upon which Mr Miller relies in seeking to impugn the due execution, and the validity, of the deed of assignment. It is perhaps worth mentioning, in relation to Mr Leighton-Davis, what was said in a witness statement made by George Michael Kangis, a solicitor employed by Eversheds, in the course of the PPX Enterprises Incorporated litigation on 20 June 2001. At paragraphs 4 and 5, Mr Kangis explains the genesis and purpose of the 2000 deed of assignment.
42. He says that, as set out in his firm's letter of 23 February 2001, it was only when preparing for disclosure, and when preparing witness statements, that it was appreciated that Mr Leighton-Davis had, in fact, been the administrator in his own right of the English estate, albeit an ancillary administrator to the New York administrator. The legal and beneficial rights to the agreement recited in the 1973 court order appear to have vested in him, subject to his duty to administer the estate in the interests of its beneficiaries. Although there ought to have been an express transfer of the rights under the 1973 court order by way of assent or assignment to those beneficiaries interested in the estate, as far as Eversheds could discover there never was any separate assignment or assent. Although the chain of title set out in the first action against PPX resulted in Experience Hendrix LLC (referred to as "Hendrix") being able to call for the English estate to be completed by the assignment or assent of what remained in the English estate - principally the rights under the agreement recited to the 1973 order - it could not be said that the legal interest in the agreement actually vested in Hendrix prior to such assignment or assent. As a result, it was said to be necessary to get an express assent and assignment from Mr Leighton-Davis. It was said that this had now been obtained, albeit after some delay. The reason was said to be that Mr Leighton-Davis had long since retired from practice, was living in France for some time, and had been ill for some time.
43. At paragraph 5 Mr Kangis observed that it should be kept in mind that the defect in title here would simply affect the legal title, and that Hendrix had, from the outset of the first action, been the only entity beneficially interested in the English estate. As the estate administrator, Mr Leighton-Davis had not held the English estate for his own benefit, but for the benefit of the Jimi Hendrix Estate and its successor in interest, i.e. Hendrix. The deed executed by Mr Leighton-Davis in November 2000 should have been made when the original litigation was concluded in 1973 but, apparently, was not made due to an oversight, which was unknown to Hendrix when the first action was commenced, and for which Hendrix had no responsibility. The fact that Hendrix was the only entity beneficially interested in the English estate was said to be evidenced by Mr Leighton-Davis's willingness to transfer the English estate to Hendrix when this oversight was discovered. As a matter of substance rather than form, Hendrix had been the proper claimant from the outset.
44. I note that in that witness statement Mr Kangis expressly referred to the fact that Mr Leighton-Davis had been ill for some time.
45. In her written submissions, Ms Blanchard submitted that there was no evidence that Mr Leighton-Davis's signature was a forgery. It was witnessed by Branwen Castle, a partner in Castles Solicitors, and Mr Leighton-Davis's niece. She signed in her capacity as a solicitor, and she gave her business address. Mr Miller relies on a letter to him from Mrs Castle on Castles Solicitors' letterhead dated 2 September 2013, which says that Mr Leighton-Davis was in poor health as of November 2000. Ms Blanchard observes that the provenance of that letter is unknown. It does not mention the deed of assignment, still less does it call into question the authenticity of Mr Leighton-Davis's signature on it. In truth, Ms Blanchard says, the allegation that Mr Leighton-Davis's signature is a forgery is bare assertion and no more.
46. As to the witness statement and letter from Mr Hagood, Ms Blanchard submits that the contemporaneous evidence shows that, contrary to Mr Hagood's recent sworn evidence, Mr Hagood, in fact, did sign the deed of assignment. That evidence, to which I will come in a moment, is said to comprise: (1) the cover letter from Experience Hendrix LLC to Mr Hagood enclosing the deed of assignment; (2) a fax from Mr Hagood saying that the address given for him in the deed of assignment is not correct, and asking whether he should make a manuscript amendment or wait for a further typed version; (3) a fax from Mr Hagood attaching signed copies of the deed of assignment with his address amended in manuscript; (4) a fax from Mr Hagood attaching his fee note for signing the deed of assignment and performing other duties; and (5) a letter from Experience Hendrix LLC to Mr Hagood enclosing a cheque in the amount of Mr Hagood's fee note. It is said by Ms Blanchard that to date Mr Miller has made no response to that material, and it is to be inferred that he has none.
47. Ms Blanchard elaborates upon those submissions later in her skeleton argument. She deals with Mr Leighton-Davis's signature at paragraphs 38 through to 40. She says that Mr Leighton-Davis's signature was witnessed by Mrs Castle in her capacity as a solicitor. There is no reason to believe that Mr Leighton-Davis's signature is anything other than what it purports to be, or that Ms Castle was acting anything other than perfectly properly in witnessing it. The Castles letter is no evidence to the contrary.
48. Mr Miller invites the court to compare the signature of Mr Leighton-Davis on the deed of assignment with his signature on other documents. (I interpose to say that certain of the documents bearing Mr Leighton-Davis's signature to which Mr Miller took me date back as far as 1973, 27 years before the deed of assignment.) Ms Blanchard makes the point that Mr Miller had attempted a similar exercise in the second PHL claim with respect to Mr Hagood's signature, and that Park J had declined to engage in that exercise. She invites me to do likewise. I accept that submission. It is not appropriate for the court to embark upon the forensic exercise of comparing signatures, particularly when there is a substantial lapse of time between the signatures in question, and when the challenged signature was clearly made, if it was Mr Leighton-Davis's signature, at a time when he was ill and, on the evidence of the Castles letter, unable to hold a pen properly.
49. As to the other allegations made by Mr Miller with respect to Mr Leighton-Davis, it is said that: (a) there is no basis for the allegation that he had no power to act as administrator following the distribution of Jimi Hendrix's American estate in March 1977; (b) Mr Leighton-Davis may well have ceased to be a solicitor in the year 2000, but that did not prevent him from being properly described as an attorney, in the relevant sense of an agent; (c) there is no evidence that it was impossible for Mr Leighton-Davis to communicate, or that he was unable to willingly transfer the rights vested in him as the administrator of Jimi Hendrix's English estate; and (d) Mr Leighton-Davis may or may not have known how to contact Mr Hagood in 2000 but since the defendants do not allege that he did, it is irrelevant either way.
50. Finally, it is said that all the points taken by the claimant could, and should, have been raised in the earlier claims before Hart J and Park J.
51. So far as Mr Hagood's signature is concerned, Ms Blanchard addresses this at paragraphs 41 through to 49 of her written skeleton submissions. She goes through in detail the contemporaneous documentation; that is to say the documentation that came into existence with a view to securing Mr Hagood's execution of the 2000 deed of assignment. I now turn to those documents. They are to be found at bundle B1, divider 2, page 1 and following, comprising exhibits RML1 to the witness statement of Mr Little of 28 May 2014.
52. The first document is a letter written by Reed Wasson, the second defendant to claim number 826, on 31 October 2000. It is headed "Re EPX consent decree". The letter reads as follows:

"Dear Mr Hagood.

Following up on our phone conversation today, I enclose two copies of a deed of assignment and assent prepared by our UK counsel and signed by Alan Leighton-Davis. Please sign one of the copies in the right-hand column in the presence of a witness and have the witness write his or her name and address in the left-hand column and send the signed copy back to me. The other copy is for your files.

As I explained on the phone, a deed of this type was apparently required under UK law for an effective transfer of rights in the 1973 court order, but we have been unable to locate a copy of such deed in the ...(reading to the words)... files or our company files and it remains uncertain whether such a deed was ever executed. So the most simple procedure at this point is simply to have this deed executed now by all parties in the chain of title. We much appreciate your co-operation and assistance. As discussed, please send us a statement for your professional time and expenses incurred on this matter to date.

Sincerely,

Reed Wasson, General Counsel."

53. The document is expressed to have been sent by FedEx.
54. The next document is a fax on Kenneth D Hagood's printed fax transmission paper. The fax transmission details show that it was transmitted at 7.59 on 7 November 2000. The fax number is the same as that which appears on the printed fax transmission sheet as being the fax number of Kenneth D Hagood, namely 7187 079452. It is sent to Reed Wasson from Ken Hagood Esq. It gives the fax and phone numbers of Mr Wasson. It is dated 8 November 2000; in other words, a day after the date shown on the fax transmission details. That is a recurrent feature of all the faxes. It is headed "Re PPX consent decree" and it reads as follows:

"Dear Reed.

I have called two times to advise you that the deed of assignment incorrectly states my address as 15 Columbus Court, NYNY 10023. My actual address is 27-08 39th Avenue, Long Island City, NY 11101. I can hand correct this error or you can send me a new page 2. I checked with Edward Howard and he does not recall a transfer of such a deed in 1973 either. Please advise."

55. That fax has a manuscript note at the bottom, dated 8 November 2000, which says, "Left message. Please correct by hand". Ms Blanchard submits, and I accept, that the likelihood is that this note was made by Mr Wasson, or someone in his office, since the documents come from Experience Hendrix LLC's own files.
56. On 14 November, although the fax transmission details show 13 November at 14.37, Mr Hagood sent Mr Wasson a fax headed "Re PPX consent decree". The fax reads:

"Attached are the two copies by fax which you sent to me. I am mailing the originals by regular mail tomorrow when I am allowed out as a consequence of my cold and/or flu. I will shortly be sending you a hard copy of my bill and suggestion for consideration.

Signed

Kenneth Hagood."

57. Attached to the fax are two copies of the deed of assignment, with Mr Hagood's address amended in manuscript to read 27-08 39th Avenue, Long Island City, NY 11101, United States of America. Both purport to be signed by Mr Hagood and witnessed by a Gary Prashar, with the date 10 November 2000. The fax transmission printout includes the words "K Hagood Esq" and numbers the pages consecutively from page 1, the fax transmission sheet, through to pages 2 to 6 (the first copy of the deed) and 7 through to 9 (the second copy of the deed).
58. On 29 November, although again the fax transmission detail is 28 November, Mr Hagood sent Reed Wasson a fax. The transmission sheet reads:

"Attached is my bill for legal services. The original is on the way by mail."

59. There is then a letter dated 29 November 2000 from Mr Hagood, on his headed notepaper, wherein he is described as "Attorney at Law", with his Long Island City address. The heading is "Re professional legal services rendered through 29 November 2000". The text reads:

"Dear Mr Wasson.

Enclosed is my bill for legal services rendered for the period from February 2000 to 29 November 2000 as you requested. My hourly rate for legal services is $350. I would appreciate payment of the enclosed bill for legal services at your earliest convenience. Thank you for the opportunity of providing legal services to you and your corporation.

Sincerely yours

[then there is the signature of Kenneth D Hagood Esq]."

60. The bill, which is marked pages 2 and 4 of the fax, the letter being marked page 3, covers the period from 9 February 2000 through to 14 November 2000. It plainly relates to the PPX litigation.
61. On 31 October there is recorded a short telephone conversation with Mr Wasson. On 1 November 2000, 1.30 hours is recorded for, "Review and transmittal of deed of assignment and assent". On 8 November, 0.20 hours is recorded for, "Fax re changes in deed of assignment"; and, on 14 November 2000, 0.30 hours is recorded for, "Preparation of letter and fax and mail executed deed to R Wasson". The grand total for the period February to 29 November 2000 is said to be 9.25 hours, attracting total legal fees due at the rate of $350 per hour of $6,737.75.
62. On 6 December 2000, by regular mail, Mr Wasson wrote to Mr Hagood enclosing a cheque in full payment of his recent bill for legal services. Mr Wasson states that Experience Hendrix LLC greatly appreciate Mr Hagood's recent assistance in executing the formal deed to correct the unanticipated defect in title to the 1973 consent decree. Mr Wasson also enclosed a copy of a draft witness statement which he had sent to Mr Hagood in June. He says that he would appreciate Mr Hagood making any desired changes on this and sending it back to him so that Experience Hendrix's UK lawyers can finalise it for signature. He refers to adding an additional paragraph 20, stating that Mr Hagood did not recall executing a formal deed back in the 1970s.
63. There is then a photocopy of a cheque dated 5 December 2000, drawn on Experience Hendrix LLC's bank account, in the sum of $6,737.75. Ms Blanchard submits that that material speaks for itself.
64. As to the other allegations made by Mr Miller with respect to Mr Hagood, Ms Blanchard submits: (a) that Mr Hagood clearly did consent to the deed of assignment; (b) it is difficult to see how the March 1977 distribution of assets could discharge Mr Hagood as regards property (namely the performer's rights relied on in the PHL claims) which did not then vest in him; (c) even if it did, all that would ultimately mean is that Mr Hagood was superfluous to requirements so far as the deed of assignment was concerned, for reasons explained by Park J at paragraphs 28 and 29 of his judgment; (d) contemporaneously, Mr Hagood did not say that he had no power to act; if anyone ought to have raised the point it was him; and (e) all points taken by the claimant could, and should, have been raised in the two claims that came before Hart J and Park J.
65. Ms Blanchard reiterated those submissions in her oral argument before me. She said that there was a single issue for this court: whether on the material before the court the claimant, Mr Miller, has a reasonable prospect of making out at trial that the signatures of Mr Hagood and Mr Leighton-Davis on the deed of assignment are forgeries. She emphasised that it was clear from the face of the deed of assignment that it merely constituted a tidying up exercise.
66. Ms Blanchard addressed the evidence upon which Mr Miller relies. So far as the Castles letter is concerned, she emphasised that it does not mention the deed of assignment at all, still less does it say (1) that Mr Leighton-Davis did not execute it; or (2) that Mrs Castle did not witness his signature. She submits that in truth there is no basis for the allegation that Mr Leighton-Davis did not sign the deed of assignment, or that Mrs Castle did not witness his signature. There is simply no reason to believe that the deed of assignment was not duly executed by Mr Leighton-Davis. The allegation of forgery is no more than a bare assertion, and should be rejected as such. She also notes that there is no allegation from Mr Miller that anyone ever forged Mrs Castle's signature purporting to witness the execution of the deed by Mr Leighton-Davis.
67. So far as the challenge to Mr Hagood's signature is concerned, Ms Blanchard submitted that the evidence of the contemporaneous faxes is overwhelming. Whatever Mr Hagood may have said in his letter of last year, and his sworn witness statement, he did indeed sign the deed of assignment. Ms Blanchard makes the point that the claimant has said absolutely nothing at all in response to this material. She says that, effectively, we could stop there because without the cornerstone allegation that the deed of assignment was forged, the two latest claims fail as a matter of law. Ms Blanchard, however, went on to address a number of subsidiary allegations, such as the allegation that Mr Leighton-Davis had no power to act after the distribution of assets in 1977. She made the point that that allegation could, and should, have been made long before now, in the course of the proceedings before Hart J and Park J.
68. Dealing with those allegations, she says that there is no evidence of any discharge of Mr Leighton-Davis in 1977. She makes the point that, if there was anything in this point, it had escaped counsel, solicitors and the court in both the PPX litigation and in the proceedings before Hart J, Park J, and the Court of Appeal on appeal from those decisions. Ms Blanchard submits that the point is simply wrong. Mr Leighton-Davis had been appointed as English administrator by the English probate court, and he remained such appointee thereafter.
69. As to the assertion that Mr Leighton-Davis could not communicate or hold a pen properly, that does not mean that he was not capable of signing his name. Indeed, Ms Blanchard would no doubt say that that is the reason why there is the visual discrepancy between his signature on the 2000 deed of assignment, which does bear indications of being somewhat shaky, and his earlier signatures on documents years before. There is no dispute that at the time he executed the deed of assignment, Mr Leighton-Davis was both old and unwell.
70. Ms Blanchard also asked rhetorically: why forge the signatures of Mr Leighton-Davis and Mr Hagood? Mr Leighton-Davis did not hold any rights in the property beneficially, or in his personal capacity, but only in his capacity as English administrator of the estate. There is no motive for forging his signature. If he had refused to sign, then it would have been possible to go to court and have the matter sorted out judicially, by the appointment of a substitute administrator, or in some other way.
71. So far as the subsidiary allegations in relation to Mr Hagood are concerned, as to the suggestion that he was discharged after he had distributed the estate in 1977, Ms Blanchard makes the point that if I accept that it is his signature on the 2000 deed of assignment, it is surprising that Mr Hagood should not have taken this point in the year 2000, particularly given the recitals to the deed, which clearly refer to the distribution: see in particular recital F. Ms Blanchard makes the point that the deed of assignment was executed by Mr Hagood expressly in his capacity as the principal, and the appointee as administrator de bonis non of the estate; and that Mr Hagood charged a fee for acting in that capacity and executing the deed. The only inference is that Mr Hagood, at the time, considered that he had the necessary power to do so.
72. As for Mr Hagood's witness statement, in paragraph 6 Mr Hagood says that the signature appears to be similar to his but it is not his and he did not sign the deed. It is clear from the contemporaneous documentation, according to Ms Blanchard, that he did, in fact, sign the deed. What is said in paragraph 7 of the witness statement about not having been empowered, as the New York administrator of the estate, to have signed any document after 30 March 1977 is contradicted by recital F to the deed, and so the court should set no greater store on paragraph 7 than on the incorrect paragraph 6.
73. Ms Blanchard submitted that the whole object of the deed of assignment was to transfer outstanding rights in England, effectively for the avoidance of all doubt, as recital H makes clear. Ms Blanchard also makes the point that Mr Hagood's signature was effectively superfluous. Park J decided, in particular at paragraph 28 of his judgment -and his ultimate decision was affirmed by the Court of Appeal - that all rights had vested in Mr Leighton-Davis, and it was he who assigned those rights to Experience Hendrix LLC. That is sufficient to give Experience Hendrix LLC the necessary standing to bring the claim.
74. As to the test for summary judgment, Ms Blanchard accepted that the defendant bears the burden of satisfying the court that: (1) the claimant has no real prospect of success on his claim; and (2) there is no other compelling reason why the claim should be disposed of at a trial. At paragraphs 51 to 53 of her written skeleton, she refers me to the appropriate test. She reminds me that there is no rule that a court, hearing an application for summary judgment, is bound to accept witness statement evidence at face value.
75. The correctness of factual assertions cannot be decided on an application for summary judgment unless those assertions are shown to be manifestly false, either because of their inherent implausibility, or because of their inconsistency with the contemporary documents or other compelling evidence. Ms Blanchard submits that that test is satisfied on the evidence in this case. The court is not obliged to accept witness evidence at face value. It is entitled to test it against other evidence, even at the summary judgment stage. If the court is satisfied that the evidence is not credible, because it is contradicted by the contemporaneous documents, the court is entitled to reject it.
76. In every other respect, Ms Blanchard submits that this is a claim effectively to set aside the judgments of Hart J and Park J. The claimant must invoke the fraud exception to the issue estoppel principle if he is to succeed in these claims. For the reasons she has given, Ms Blanchard says that Mr Miller cannot do so; and these claims should, therefore, be dismissed summarily.
77. So far as claim number 827 is concerned, if there is no real prospect of success in challenging the deed of assignment, then there can be no real prospect of success on claim number 827 against Eversheds and the two named individuals (one of whom is now deceased). The claims against the solicitors are premised on the same allegation: that the signatures on the deed of assignment are forged.
78. Claim number 827 begins, and ends, with the allegation that because Eversheds and the individual solicitors worked for Experience Hendrix LLC, then they must be fraudsters. There is no allegation of knowledge of the fraud on the part of Eversheds or the named solicitors. Therefore, claim number 827 is demurrable on its face.
79. Ms Blanchard made other submissions in her written skeleton, and in her oral submissions to the court, but it is unnecessary for me to burden this already over lengthy extemporary judgment by reciting them in detail.
80. What then were Mr Miller's submissions? He invited me to hold that much of what Ms Blanchard had been saying was irrelevant. It was all an attempt to make him look ridiculous. It came down to fact. The court should decide this application on the basis of fact rather than fiction. Mr Miller emphasised that he had discovered the alleged forgeries when he had obtained, and scrutinised, the contents of the 43 cartons of documents from Harbottle & Lewis, the solicitors who had acted for PPX in the earlier litigation. He acknowledged that he had spoken to Mr Hagood in 2006, before the hearing before Park J; but he had had no reason, at the time, to question whether Mr Hagood had executed the document. I must say that that assertion does not fit well with the passage from the transcript of the proceedings before Park J which I have referred to earlier in this extemporary judgment.
81. Mr Hagood had, Mr Miller emphasised, served as a judge for 14 years. There was a sworn affidavit before the court from Mr Hagood, who had served as a judge in New York for 14 years and was an extremely honourable man. The court could not simply disregard what he was there saying. What he was there saying was twofold: (1) he had not signed the deed of assignment; and (2) because he had been discharged from his fiduciary duties, he was no longer empowered to sign the deed.
82. When I enquired as to how Mr Miller addressed the contemporaneous documents in the early part of exhibit RML1, Mr Miller stigmatised them as being totally irrelevant. He placed reliance upon the Dickerson & Tomaselli letter of 14 June 2014. He emphasised that the date on the first page of the deed of assignment, being the purported date of execution of 13 November, did not accord with the date attached as the date of the witnessing Mr Hagood's signature. As a non lawyer, Mr Miller cannot be expected to understand that the date that a document is expressed to take effect is not necessarily the same date as that on which each of the individual signatories actually executed the document. Mr Miller submitted that Mr Hagood had not been empowered to sign the document, and that there was no evidence that Mr Hagood had ever directed Mr Leighton-Davis to do anything. The defendants to these claims do not rely upon any direction from Mr Hagood to Mr Leighton-Davis beyond the contents of the 2000 assignment settlement.
83. I was invited to undertake a comparison of various signatures of Mr Leighton-Davis, in earlier years, with his signature on the deed of assignment. I am not prepared, or qualified, to undertake that exercise; and, in any event, it has to be borne in mind that, on the evidence of Mr Miller's letter from Castles, Mr Leighton-Davis was ill and would have had difficulty in signing anything at the time he executed the 2000 deed of assignment. Mr Miller submitted that any property not dealt with in 1977 would have vested in the state of New York. He submitted that from the Castles letter, it is clear that Mr Leighton-Davis would not have known how to contact Mr Hagood, and Mr Hagood would not have known how to contact Mr Leighton-Davis. I have already indicated that there was no need for them to do so. It was Eversheds who were responsible for procuring everyone's signatures to the 2000 deed. Mr Miller submitted that Mr Leighton-Davis's functions would have ended in 1977, when all the assets were assigned. The answer to that is that Mr Leighton-Davis still remained the appointed administrator of the English estate of the late Jimi Hendrix.
84. Mr Miller submitted that the issue of the true execution, and validity, of the deed of assignment cannot be decided purely at a summary judgment hearing. He was entitled to a full, and proper, hearing of all the evidence. He emphasised that every time he had applied to Experience Hendrix LLC, or to Eversheds, for disclosure of documents, he had been met with an application for summary judgment as a way of avoiding such disclosure. He submitted that it was not possible for this court to make a decision about the validity of the deed of assignment, given that there is a pending police investigation. He referred me to documents indicating that. All Mr Miller was seeking was a fair trial, to put his case before a judge who would then deliver a fair judgment.
85. Mr Miller then sought to refer to a number of instances where Mr Gardiner is said to have lied. I refused to allow Mr Miller to develop that part of his submission. Given that there is no suggestion that Mr Gardiner had been involved in the creation of the 2000 deed of assignment, the allegation that Mr Gardiner had lied in relation to other matters seemed to me to have no relevance whatsoever to the subject matter of the instant summary judgment application. Mr Miller emphasised that the very reason the 2000 assignment had been made was in order to fill a gap in the chain of title, which had become exposed in the first claim again PPX.
86. It was at this point in his submissions that Mr Miller asked for a short adjournment to confer with two American lawyers who were present in court, although Mr Miller said that they were not yet formally retained by him. After that ten-minute break, which I allowed Mr Miller, he repeated his submission that the deed of assignment was null and void. That was because (1) it was not executed by Mr Hagood and (2) he had had no power to execute it. The court needed expert forensic evidence to determine whether the document was forged. It was at this point that Mr Miller indicated that he had, or the American attorneys in court had, an up-to-date file for the Hendrix estate, comprising some 1,258 pages of documents. I refused to allow Mr Miller, who had had ample opportunity already to put in material from New York, an opportunity to lodge such further evidence.
87. Mr Miller had already put before the court a letter from Dickerson & Tomaselli LLC, dated 14 June 2014. This matter had come for directions before David Richards J on 16 June 2014; and David Richard J had given elaborate directions, specifically with a view to ensuring the expediting of the hearing of the present applications. It would not be consistent with that case management direction, nor would it be fair to the defendants and applicants, to have a further swathe of documents, extending to some 1,200-odd pages, put in towards the end of Mr Miller's oral address to the court, particularly when he had already put a number of witness statements and responses to the skeleton arguments before the court. It would be particularly inappropriate to do so as a result of material which Mr Miller told me he had only discovered because I had given him a ten-minute break two hours into the course of his submissions.
88. Mr Miller then concluded his submissions by inviting me to make a judgment "on the facts rather than the faxes". He submitted that there was no evidence to contradict Mr Hagood's own evidence that he had not signed the deed of assignment, and that he was not empowered to do so. There was no evidence to support the claim that Mr Hagood had ever contacted or instructed Mr Leighton-Davis to execute the deed of assignment. The matter should go to trial.
89. In her reply, Ms Blanchard explained the reasons for the deed of assignment coming into existence. It had come to be appreciated that there might be a problem with Experience Hendrix LLC's title to the performer's rights, and the deed of assignment was intended to address, and cure, that problem. The claimant alleges that it is, as Ms Blanchard put it, a forgery; but all that there is in support of that is the Hagood witness statement, and that is itself contradicted by the contemporaneous written material. Ms Blanchard submitted that the allegation of forgery simply does not hold water in the light of the contemporaneous documentation. The claims in this, and the earlier litigation, are all concerned with English intellectual property rights. Those were vested in Mr Leighton-Davis, as administrator of the English estate. He assigned them in his capacity as the administrator of the estate.
90. It was at this point that Mr Miller interrupted to ask: why then did Mr Leighton-Davis need the consent and direction of Mr Hagood? The answer to that is that Mr Leighton-Davis was seeking to avoid any suggestion that he had acted outwith the scope of his express authority. Ms Blanchard submitted that the only thing that matters on this application is whether Mr Miller has a reasonable prospect of successfully showing that the signatures of Mr Hagood and/or Mr Leighton-Davis are forged. Everything else, Ms Blanchard submitted, has already been decided.
91. Mr Miller then interrupted again, saying that if the summary judgment application is dismissed, as it should be, he would have further evidence by the time of any trial. As to that, it seems to me that that is simply an exercise in Micawberism. Mr Miller was unable to identify what further material there might be. That is because there will be no evidence from Mr Leighton-Davis (he died in, I think, 2003); nor will there be any evidence from Mr Hagood (because he, sadly, passed away in May 2014). That is mentioned at paragraph 101 of Mr Miller's second witness statement of 9 June 2014.
92. Mr Miller interrupted Ms Blanchard again to make the point that he had not been present at the hearing before Hart J at which he was represented, as was his company, by solicitors and counsel; nor had Mr Miller been a party to the appeal from the decision of Park J. Ms Blanchard referred to the passage at paragraph 38 of a witness statement made by Mr Miller in which he had invoked his right, in the Court of Appeal, to a fair hearing. This was in a witness statement made on 18 July 2005. Ms Blanchard submitted that there was a sense of déjà vu here. Mr Miller has already had a complete hearing before Hart J, and again before Park J; and what he was seeking to do was to rehear what was before them. She described the allegations directed to Mr Gardiner as scurrilous allegations of fraud, perjury and of misleading the court, for which there was no substance.
93. Mr Miller interrupted Ms Blanchard for the fourth time to make the point, which does have some force, that I had not allowed him to formulate all of his allegations against Mr Gardiner. The reason for that was, as I have said, that it seems to me that since Mr Gardiner, it is common ground, was not involved in the preparation of the 2000 deed of assignment, such allegations are not material for the purposes of the applications before me.
94. Those are the submissions. I bear in mind the test to be applied on a summary judgment application, the burden of which falls on the applicant defendants: have they shown that there is no real prospect of the claimant succeeding on the forgery allegations? I am satisfied that they have discharged that high burden. There is simply no evidence whatsoever that Mr Leighton-Davis did not execute the deed of assignment. There is no suggestion that Mrs Castle did not witness his signature. There is simply no evidence that he did not execute the deed of assignment. That of itself, it seems to me, is fatal to the claim. Whether or not Mr Hagood executed the deed of assignment seems to me to be irrelevant to the ability of Mr Leighton-Davis himself to pass the title to assets, of which he was the English administrator, to Experience Hendrix LLC.
95. But, in any event, I am satisfied that there is no real prospect of the claimant establishing that Mr Hagood's signature on the deed of assignment was forged. As Ms Blanchard submits, the contemporaneous documentation is absolutely compelling in that regard. It is quite clear that, while one does not know why Mr Hagood should have forgotten it, he did clearly execute the deed of assignment; and that he clearly considered that he had the power in 2000 to do so. Whatever the position about the discharge of an attorney and administrator under New York law, Mr Hagood clearly considered that he had the power to direct and authorise Mr Leighton-Davis to tidy up what was a formal flaw, amounting to a technicality, in the title of Experience Hendrix LLC to the performer's rights. As Ms Blanchard says, one will never know why Mr Hagood said what he did in his letter and witness statement; but I am entirely satisfied that he was mistaken. He is no longer here to give evidence, or to be cross-examined.
96. This matter, if it were to go to trial, would proceed on the basis of the documents. I am entirely satisfied that the claim in 826 would, on those documents, be bound to fail. It may be that Mr Hagood, with the passage of some 13 years, has simply forgotten what he did in the year 2000. I note that in the witness statement that Mr Miller made for the hearing before David Richards J on 19 December 2013, at paragraph 25 Mr Miller said, "Most people do not remember what they said a week previously, let alone 20-plus years ago". It seems to me that those words can be applied to Mr Hagood in 2013, when casting his mind back to what I am satisfied he did do in the year 2000, namely execute the deed of assignment.
97. That, as Ms Blanchard said, is the end of the case. Claim number 827 must fail with the dismissal of claim number 826. Even if that were not the case, I would have taken the view that claim number 827 is insufficiently particularised in terms of allegations of knowledge on the part of all of the defendants of any wrongdoing on the part of Experience Hendrix LLC. I am also concerned that the claims that Mr Miller is seeking to advance are claims that properly belonged to the company PHL, which is now dissolved; but it is not necessary for me to go into the question whether Mr Miller might be able to advance some claim on, presumably, principles of reflective loss. For all of those reasons, I am satisfied that this is a case where summary judgment should be given against Mr Miller on both claims 826 and 827.

[After the luncheon adjournment and further argument:]

98. For a little over two hours this morning I delivered my substantive judgment, giving summary judgment to the defendants and dismissing Mr Miller's claims in claim numbers 826 and 827. I now have to deal with three matters. The first is an application by Ms Blanchard QC (for the defendants in both claims) for their costs. She also invites the Court to order those costs to be assessed on the indemnity basis; and summarily to assess those costs in the sum of £330,836.53. Secondly, I have to deal with Ms Blanchard's application, on an interim basis, for a civil restraint order against Mr Miller. The form of order which Ms Blanchard seeks is an extended civil restraint order. Thirdly, I have to deal with Mr Miller's application for permission to appeal.
99. Ms Blanchard addressed me this afternoon for about 55 minutes. Mr Miller then addressed me for a little over 30 minutes. Ms Blanchard then responded for about five minutes until Mr Miller interrupted her yet again. As a result, Mr Miller has had the last word, Ms Blanchard indicating that she had nothing further to say.
100. I deal first with the issue of costs. Although the Court has a discretion as to costs, the normal rule is that costs will be awarded to the successful party. In the present case it is the defendants in both claims who are the successful parties, and Mr Miller who is the unsuccessful party. There is no valid reason why I should not exercise the Court's normal discretion to award costs against Mr Miller in favour of the successful defendants. Mr Miller says that he has no money to pay those costs. That may be the case; but even if it is the case, there is still no reason why, having brought these claims and having seen the claims dismissed, he should not bear the costs of doing so.
101. Ms Blanchard invites the Court to direct that those costs should be assessed on the indemnity basis. She acknowledges that that is a course which the Court will only take in an exceptional case, where the facts of the case and/or the conduct of the parties are such as to take the situation away from the norm. Ms Blanchard submits that this case is such a case. She submits that these claims were totally without merit. They were brought without following any form of pre-action protocol. Even if Mr Miller might have thought he was justified in issuing claim 826 based upon the contents of the letter and witness statement from Mr Hagood, there was certainly no justification for pursuing the claims after the defendants had disclosed (in the first exhibit to Mr Little's first witness statement) the contemporaneous documents showing how Mr Hagood had indeed come to execute the deed of assignment, as I have found that he did, in fact, do.
102. Ms Blanchard submits that Mr Miller should have given up when he saw that evidence. He has, however, persisted in pursuing a claim in 826 which is totally without merit; and his claim in 827 is entirely dependent upon his being able to challenge the earlier decisions of Hart J and Park J, which he can only do if he can attack the deed of assignment as having been fabricated by, or on behalf of, Experience Hendrix LLC in order to have misled the judges in the two earlier cases.
103. Ms Blanchard acknowledges that a summary assessment will involve a degree of rough justice; but she submits that a summary assessment is justified in the present case. She says that the claimant's unreasonable behaviour has massively increased the costs of dealing with his claims. She submits that the defendants' solicitors have had to read a lot of irrelevant material. Their costs have been substantially increased by Mr Miller's failure to engage with the relevant issues, particularly contemporaneous material relating to Mr Hagood's signature, which he failed to do before his oral submissions yesterday, and which, in the course of those submissions, he suggested were themselves the product of forgery or invention.
104. For those further reasons, Ms Blanchard submits that the case is very much outside the norm, justifying an assessment on the indemnity basis; but she also prays in aid those considerations as supporting a summary assessment. She says that the allegations made by Mr Miller, the seriousness of which, even now, I think he does not sufficiently appreciate, have involved him in making serious allegations against professional and business people of a most serious kind, and of a most newsworthy kind. His allegations have been disseminated far and wide.
105. The defendants have faced claims in excess of £5 million. In order to answer those claims they have had to extract many, many archived files; and they have had to receive, and investigate, the files, not only in this country but also from the United States. The defendants have had to dig deep and seek to reconstruct what happened in historic litigation over an extended period of time. The defendants should not now be put to the expense of a detailed assessment in relation to a litigant who, on his own assertions, will never be able to meet any of the awarded costs at all.
106. For those reasons, Ms Blanchard says that I should undertake a summary assessment of the defendants' costs on the indemnity basis. She goes so far as to say that she has seldom come across - and seldom can the Court have come across - a party to litigation who has been so signally unco-operative over the conduct of the litigation, so as to make it all but impossible properly to conduct litigation in court. She has instanced the refusal to engage in agreeing court bundles or court orders, and the regular receipt of emails, often of an abusive nature. Ms Blanchard has taken me to certain emails. They are certainly of a content which I have not previously witnessed and hope never to have to witness again in the course of civil litigation.
107. All such conduct is said by Ms Blanchard to be extraordinary, and to have cost the defendants a very large sum of money. Ms Blanchard also submits that it is clear, by reference to what was said by Chadwick LJ in one of the Court of Appeal judgments following the decision of Hart J, that the claimant has a history of refusing to accept Court decisions, and refusing to hear, and understand, and obey, what the Court has told him. She submits there is no reason to believe that anything has changed. She acknowledges that usually an application for a civil restraint order would be preceded by an application notice; but, in the highly unusual circumstances of this case, I should make an extended civil restraint order temporarily, and for a short period, before a formal application can be brought back before the Court.
108. Although I have dismissed the claims pursuant to CPR 24, Ms Blanchard submits that I could alternatively have struck the claims out under CPR3.4, whereupon, as a result of CPR3.4 (6), if I considered that the claims were totally without merit, my order should record that fact; and I must, at the same time, consider whether it is appropriate to make a civil restraint order. She relies upon a letter dating back to 29 March 2006 in which Mr Miller told the defendants they would never win. She also draws attention to the Part 18 request that was made by Mr Miller, in which he seeks disclosure of the DNA of Jimi Hendrix and of James Al Hendrix. Ms Blanchard acknowledges that no application notice was ever issued seeking such disclosure; but the only reason for that was that on 16 June 2014, at the hearing for directions in these applications, David Richards J had made an order that until the defendants' application for summary judgment, and/or strike out was disposed of, the claimant should not issue any application notice seeking further information. Ms Blanchard also referred, as I say, to the extraordinary emails as indicating an intention on the part of Mr Miller to bring further claims.
109. Mr Miller indicated that it was the defendants who had refused to seek to resolve the disputes through mediation. He refuted any suggestion that he had been uncooperative. He asked rhetorically, how could it be said that his claim forms were totally without merit when it was David Richards J who, on 16 January 2014, had noted that the correct or appropriate procedure to seek to set aside the earlier judgments and orders of Hart J and Park J was by way of a new claim issued under part 7 of the Civil Procedure Rules. Mr Miller said he had done nothing other than what David Richards J had recommended that he should do. Mr Miller disavowed any intention, or wish, to waste the court's valuable time. He indicated that he would ultimately get the DNA of James Al Hendrix; and that would, he said, prove that he was not the biological father of Jimi Hendrix. He would come back to court, he said, with new documents. He indicated that he had rights under the Human Rights Act to a fair hearing and to justice.
110. In her brief response, Ms Blanchard made the point that Mr Miller, through his address to the court, had confirmed that this litigation will never end. He will not give in. All that he had said had done no more than to confirm all of the defendants' existing fears. She said that two matters were determinative of her applications: (1) that the claimant has been held to have no reasonable prospect of success, and (2) she invited the court to say that the claims were totally without merit. The claimant was entitled to ask the Court of Appeal for permission to appeal if permission were refused by this court; but on everything else the issues had been resolved, including all claims regarding chains of title had been resolved, finally, and against the claimant, many years ago. She submitted that the defendants' fears as to further litigation are real and are well-founded. She refuted any suggestion that the defendants should negotiate with the claimant, whose claims were totally without merit. Mr Miller interrupted Ms Blanchard's closing address yet again, and he referred me to further documentation which, it seemed to me, clearly related to issues that had been, or should have been, litigated in the proceedings before Hart J and Park J. Although I have tried to explain it to him, I am not sure that Mr Miller still understands that unless and until he can secure the setting aside of the earlier judgments against him on some ground of fraud on the part of Experience Hendrix LLC, then he remains bound by, and unable to re-litigate, the determination of the issues by Hart J and Park J.
111. In the course of his submissions Mr Miller also indicated that he felt that he had not had an opportunity properly to deal with claim number 827. Ms Blanchard had addressed that claim in her submissions yesterday; and I am satisfied that Mr Miller had full opportunity yesterday, in his response to Ms Blanchard, to deal with those issues concerning claim 827. The fact is that claim 827 cannot begin to get off the ground unless there can be a successful challenge, as I have held there cannot be, to the earlier judgments of Hart J and Park J. In addition, however, when addressing me on those issues in claim number 827, it seemed to me that Mr Miller demonstrated two further grounds upon which those claims were manifestly ill-founded. The first was that they are long since statute-barred, since they all seem to date back to events as long ago as 2006; and secondly (and in any event) that the appropriate claimant in those claims would have been Mr Miller's company, Purple Haze Records Limited, and not Mr Miller. I have no doubt Mr Miller would have told me that he has not heard of the separate corporate identity principle in Salomon v Salomon. But, nevertheless, the fact is that even though he may have been the sole shareholder of Purple Haze Records Limited, that company (since August 2006 dissolved) would seem to me to have been the appropriate claimant, and not Mr Miller. Be that as it may I have, in any event, given summary judgment striking out claim number 827 as well as 826.
112. I turn then to give my decision against the background of those submissions. First, on the issue of costs. As I have said, there is no reason to depart from the normal principle that the claimant, Mr Miller, the unsuccessful party, should pay the defendants' costs. I accept Ms Blanchard's submission that because of the way in which this litigation has been conducted, and the very nature of the litigation itself, the court is justified in awarding costs on an indemnity basis. Given the amount claimed by Mr Miller, in excess of £5 million, the removal of considerations of proportionality in the assessment of costs is, in practice, likely to have little effect. But the reversal of the burden of proof, from the receiving party to the paying party, may have some impact on the eventual assessment of costs. I will order the costs to be assessed on the indemnity basis.
113. In view of the amount of costs claimed, over £330,000, it does not seem to me to be at all appropriate for me to undertake a summary assessment of those costs here and now. But under the current revision of the Civil Procedure Rules I am required to order an interim payment on account unless there is some good reason not to do so. Mr Miller has asserted impecuniosity; but that is no such good reason. The defendants have, I am satisfied, had to expend a considerable number of hours in defending these claims, and bringing these merited summary judgment applications, with a view to putting an early end to these unmeritorious claims. It is only appropriate that there should be an interim payment on account. I should not order an interim payment of an amount greater than that which I am satisfied will be awarded on a full detailed assessment, in this case on the indemnity basis. On that basis, I propose to order an interim payment on account of £100,000. The normal rule is that is to be paid within 14 days. Since Mr Miller is asserting impecuniosity, I see no reason to allow him any longer period to make that payment. There will be an interim payment on account of costs of £100,000, payable in 14 days from today, which is 30 July. That deals with the issue of costs.
114. On the application for a civil restraint order, I am entirely satisfied, for the reasons I gave in my substantive judgment, that both claims are totally without merit; and my order should record that fact. With considerable reluctance, because I have every reason to accept Ms Blanchard's submissions, supported by Mr Miller's own assertions, that he will seek to bring fresh claims against the defendants and related individuals, had I had the jurisdiction to do so I would have made an extended civil restraint order against Mr Miller to prevent him from bringing such further claims; but I do not consider that I have necessary jurisdiction to do so under paragraph 3 of the relevant Practice Direction 3C, relating to civil restraint orders. That Practice Direction applies where the court is considering whether to make a civil restraint order against a party who has issued claims or made applications which are totally without merit. By paragraph 3.1 an extended civil restraint order may be made where a party has "persistently" issued claims or made applications which are totally without merit. David Richards J did not say that the application that was made to him in December of this year was totally without merit; and it would not be right for me to do so on his behalf.
115. There was not, and has not yet been, any application in relation to DNA. It may be that David Richards J's order has fortuitously, from the point of view of Mr Miller, forestalled such an application. But the fact is that no such application has been made. I cannot regard Mr Miller's appeal, together with that of Purple Haze Records Limited, from Hart J's decision as one that was totally without merit. In any event, that dates back to the year 2005. The net effect is that Mr Miller has, to date, issued two claims which have been held to be totally without merit. There is a third claim against the third defendant in claim number 826, Janie Hendrix. It may well be that that claim will, on a future occasion, also be said to be totally without merit. But that claim is not presently before me. Ms Blanchard has made it clear that she is not presently instructed on that claim. That means there are but two claims that have been recorded as being totally without merit. I do not regard that as constituting an instance of a party "persistently" issuing claims which are totally without merit. The issue of two claims is not "persistent" conduct, particularly when one looks at the contrasting paragraph 2, relating to limited civil restraint orders. Therefore, with reluctance, because I acknowledge that a civil restraint order may prove justified in the near future, it does not seem to me that I have, as of today, the necessary jurisdiction to make an extended civil restraint order, much though I might wish to do so. That application is not granted, although I will record that the claims were totally without merit.
116. That leaves Mr Miller's application for permission to appeal. On an application for permission to appeal, permission may be given only where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard. Whether an appeal has a real prospect of success must be judged by reference to the criteria for allowing an appeal in CPR52.11(3):

"The Appeal Court will allow an appeal where the decision of the lower court was either (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

117. I am entirely satisfied, for the reasons given, and consistently with the terms of my substantive judgment, that there is no real prospect of success on an appeal. There is no real prospect of demonstrating that my decision was wrong, or that it was unjust because of a serious procedural or other irregularity in the proceedings before me. Mr Miller acknowledged, in the course of his closing reply, that I had been patient with him and had given him a fair hearing. Absent any real prospect of success on appeal, there is no other reason, still less any compelling reason, why an appeal should be heard. So I refuse permission to appeal. As I have indicated to Mr Miller, he may apply to the Court of Appeal for permission. An appeal lies to that court with the permission of that court; and any appellant's notice must be filed within 21 days of today, that is to say on or before Wednesday, 6 August. The order should record that Mr Miller still has that route of appeal, with the permission of the Court of Appeal.
118. I indicated in my substantive judgment that I would also make the order sought in relation to the second defendant to claim number 827, Mr Valner and his estate. It is only just, since Mr Gardiner has been successful, that Mr Valner's estate should have the benefit of that success. It would be just and convenient for me to make that order so as to benefit Mr Valner's estate, and those interested in it.