Judgments - Fisher (Original Respondent and Cross-appellant) v Brooker and others (Original Appellants and Cross-respondents)

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64.    Fifthly, laches is an equitable doctrine, under which delay can bar a claim to equitable relief. In the Court of Appeal, Mummery LJ said that there was “no requirement of detrimental reliance for the application of acquiescence or laches” - [2008] EWCA Civ 287, para 85. Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239, the Lord Chancellor, Lord Selborne, giving the opinion of the Board, said that laches applied where “it would be practically unjust to give a remedy", and that, in every case where a defence “is founded upon mere delay … the validity of that defence must be tried upon principles substantially equitable.” He went on to state that what had to be considered were “the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

Estoppel based on Mr Fisher’s silence in 1967

65.    The respondents rely on the fact that, during 1967, Mr Fisher stood by and said nothing to Essex, and very little to Mr Brooker or Mr Reid, about his having a claim to a share of the musical copyright in the work, so that the respondents, and presumably Mr Reid, proceeded on the assumption that he had, or at any rate was making, no such claim. In particular, Essex spent money and effort in promoting and exploiting the work, on the assumption that the terms of the assignment reflected the copyright ownership in the work and the right to royalties thereunder. The respondents now argue that, had Mr Fisher raised his claim in April or May 1967, he would have been required to assign any share he had in the musical copyright in the work to Essex. Further, by waiting until the work became a great popular success, he has much greater bargaining power as a result of staying silent.

66.    There are a number of problems with this argument. First, it does not reflect the respondents’ re-re-amended defence. It was there pleaded that, if Mr Fisher had raised a claim in 1967 to a share in the musical copyright, the song would have been recorded and released without his contribution and/or he would have been expelled for the band. It was not pleaded that, had Mr Fisher raised such a claim, he would have assigned his share in the musical copyright to Essex.

67.    Secondly, and no doubt as a result of this, there was no investigation before the judge as to whether there would have been such an assignment, what its likely terms would have been, or its likely financial consequences for the two respondents or Mr Reid, let alone as to whether they would have acted differently from how they did, over the ensuing years if there had been such an assignment, and how they would be prejudiced as a result of the point being raised only in 2005. Save in the most unusual case (and this is not such a case), it is inappropriate for an argument of this sort to be raised by a defendant for the first time on appeal, and impossible for the argument to succeed on appeal. The necessary factual investigation and findings will not have been made by the judge, and the claimant will not have been given an appropriate opportunity to investigate the relevant facts before and during the trial.

68.    Thirdly, it seems to me likely that, if Mr Fisher had raised the issue in 1967, and had consequently assigned his copyright share to Essex, he would have received some share of the royalties. After all, Mr Brooker received some 25% of the royalties on the work for composing the original music, and Mr Fisher’s subsequent contribution was significant, and, especially the introductory eight bars, an important factor in the work’s success. In those circumstances, the respondents’ estoppel argument would have had to take into account that, by delaying his claim for nearly forty years, Mr Fisher appears to have lost a great deal of money, which has been received by the respondents.

69.    This was a point which the judge well appreciated. At [2006] EWHC 3239 Ch, para 81, he said that “it would… be a wholly extravagant and unjust result to deprive Mr Fisher for the [future] of his interest in the work’s musical copyright on the basis of the estoppels that have been pleaded, … when for almost 40 years the [respondents] have enjoyed the fruits of that copyright interest without the need to account for any part of them to Mr Fisher". That assessment (which exemplifies how the passage of time can have an effect on arguments relating to what happened in 1967) is self-evidently a conclusion with which an appellate court should interfere only if satisfied that it was plainly wrong or based on a mistaken understanding of established facts (which has not been demonstrated here).

70.    The respondents contend that this assessment was arrived at in relation to estoppel arguments rather different from that now advanced by the respondents. Apart for the inherent unattractiveness of such a contention being raised by the respondents, it seems to me that the assessment is just as applicable to the estoppel argument advanced in this House as to those raised before Blackburne J. Mr Baldwin also points out that the judge did not consider the position of Essex and Mr Brooker separately, and suggests that it was only Mr Brooker, and not Essex, who would have benefited in the way described by the judge. That was not a point which appears to have been raised on the pleadings or in evidence or argument at first instance, and it is not right to entertain it on appeal. Its force depends on the terms upon which Mr Fisher would have assigned his share of the musical copyright, and what Mr Brooker and Essex (and Mr Reid) would have agreed in relation to their rights under the Assignment, all of which is pure speculation at this stage.

Estoppel based on the events in 1969

71.    The respondents argue that Mr Fisher’s failure to raise his claim to a share of the musical copyright during the negotiations leading to the financial agreement when he left the band in 1969 deprive him of the right to raise it subsequently. It is well-nigh impossible to see how Essex or Onward could rely on these negotiations, as they were not involved in them in any way. Mr Brooker was a party to the agreement, but it is hard to see how it can give rise to any estoppel which assists him in these proceedings. No mention was made of the possibility or existence of any musical copyright interest which Mr Fisher might have had in the work, but that seems to me to add nothing to the point that Mr Fisher did not maintain his claim till 2005. It is not as if the agreement reached in 1969 was stated or implied to be in full and final settlement of all accrued rights which Mr Fisher had. I accept that the fact that the claim was not raised in 1969 could, in principle, have been relied on to cast doubt on the value of the contribution Mr Fisher made to the work, and that it would have assisted any argument the respondents had as to the reasonableness of any belief which they may have had that Mr Fisher had no such claim. Those might have been good arguments at first instance, but I cannot see how it takes matters any further now, in the light of the facts found by the judge.

The Court of Appeal’s reasoning

72.    As I have mentioned, the Court of Appeal upheld the judge’s conclusion that the judge was entitled to reject the respondents’ case on estoppel, but the majority went on to conclude that Mr Fisher was nonetheless not entitled to determine the licence which the judge found that he had impliedly granted. Mummery LJ’s careful analysis, at [2008] Bus LR 1123, paras 81 to 90, for reaching this conclusion and for setting aside the second and third declarations made by Blackburne J, seems to me to be encapsulated in the following two propositions. First, since May 1967, Essex, Onward and Mr Brooker had, to Mr Fisher’s knowledge, continued “exploitation of the work on the basis that they owned all the copyright in it", and “it would be unconscionable for him [now], with a view to enforcing his property right by final injunction, to assert a joint share in the copyright and to terminate the implied licence under which he accepts the [respondents] have acted for very many years” (para 87). Secondly, Mr Fisher’s delay in bringing his claim means that “he could dictate his terms and put the [respondents] in a weaker bargaining position than they would have been in, had he made his claim in, say, 1967 or 1969” (para 88).

73.    As to the first of those reasons, it seems to me that, save in a very unusual case, it would be inconsistent to conclude that a claimant was not estopped from asserting his copyright interest, but then to refuse, on equitable grounds, to declare that the right existed. It is possible that there may be cases where such a course could be appropriate, but it would require wholly exceptional facts. As my noble and learned friend, Lord Mance said, if, as the Court of Appeal accepted, Mr Fisher originally had 40% of the musical copyright in the work and is not estopped from asserting it, then it is hard to see how he could be prevented from bringing proceedings simply for financial compensation or injunctive relief on the ground of copyright infringement. The refusal to grant him declaratory relief because he might seek an injunction on the back of it therefore seems to be questionable as a matter of principle.

74.    In the present case, the majority of the Court of Appeal thought it appropriate to take such a course primarily because of the apparent inequity of Mr Fisher being able to seek an injunction to enforce his rights as the holder of an interest in the musical copyright in the work. Quite apart from the point made by Lord Mance, this point, as Mr Purvis argues, involves the tail wagging the dog. If the declarations set aside by the Court of Appeal are reinstated, then, were Mr Fisher subsequently to apply for injunctive relief to prevent unauthorised use of the work, such an application would be dealt with on its merits. If the court was satisfied that it would be oppressive to grant an injunction in the particular circumstances, for instance because of prejudicial delay, it would refuse an injunction to restrain the infringement, and leave Mr Fisher to his remedy in damages: see Shaw v Applegate [1977] 1 WLR 970.

75.    Mr Purvis contends that Mr Fisher was not primarily interested in obtaining injunctive relief, but was more concerned to establish his contribution to the work and to share in the future royalties. That may well be right, but he did seek an injunction before Blackburne J and there would be nothing to stop him seeking an injunction if the declarations set aside by the Court of appeal were reinstated. However, the essential point is that, if and when Mr Fisher seeks an injunction to restrain an alleged infringement of his copyright, it should be dealt with on its merits.

76.    Further, the decision of the majority of the Court of Appeal deprived Mr Fisher of the ability not only to seek injunctive relief, but also to claim any royalties in respect of the exploitation of the work, of which he owned 40% of the musical copyright. (That must follow from the conclusion that he could not determine the implied licence). It is hard to see how that could be right, simply on the basis that it would be inappropriate to grant him injunctive relief, given that Mr Fisher was not estopped from asserting his 40% interest in the musical copyright in the work.

77.    As for the change in the bargaining position of the parties between 1967 and 2005, that was neither pleaded nor argued before the Judge. In any event, there was no evidence that Essex or the respondents would have acted any differently from the way in which they did if Mr Fisher had pressed his claim in 1967 or in the ensuing few years. Further, there is also the judge’s finding at [2006] EWHC 3239 Ch, para 81, to which I have also referred, that Mr Fisher’s very long delay in asserting his claim has been of considerable financial benefit to the respondents, effectively outweighing any disadvantage to them resulting from the delay.

The passage of time

78.    As Lord Walker said in argument, the basic problem for the respondents is that there is no English law statutory equivalent in the field of intellectual property to the doctrine of adverse possession in relation to real property (although the Land Registration Act 2002 has made considerable inroads into that doctrine). Indeed, as Lord Hope mentioned, Mr Fisher would face considerable difficulties if he sought to maintain his claim in Scotland on the present facts, in the light of sections 7 and 8 of the Prescription and Limitation (Scotland) Act 1973. Be that as it may, the position in this jurisdiction is that the mere passage of time cannot of itself undermine claims such as those raised by Mr Fisher in the current proceedings. The respondents therefore rely on laches.

79.    The argument based on laches faces two problems. The first is that, as pointed out by David Richards J, laches only can bar equitable relief, and a declaration as to the existence of a long term property right, recognised as such by statute, is not equitable relief. It is arguable that a declaration should be refused on the ground of laches if it was sought solely for the purpose of seeking an injunction or other purely equitable relief. However, as already mentioned, that argument does not apply in this case. Secondly, in order to defeat Mr Fisher’s claims on the ground of laches, the respondents must demonstrate some “acts” during the course of the delay period which result in “a balance of justice” justifying the refusal of the relief to which Mr Fisher would otherwise be entitled. For reasons already discussed, the respondents are unable to do that. They cannot show any prejudice resulting from the delay, and, even if they could have done so, they have no answer to the judge’s finding at [2006] EWHC 3239 Ch, para 81, that the benefit they obtained from the delay would outweigh any such prejudice.


80.    In these circumstances, essentially for the reasons given at first instance by Blackburne J and in the Court of Appeal by David Richards J, I would reject all the respondents’ arguments based on equitable principles.


81.    It follows from this that I would allow Mr Fisher’s appeal, dismiss the respondents’ cross-appeal, and restore the two declarations set aside by the Court of Appeal save that the third declaration may require to be amended to keep open the issue whether Essex's rights under the recording contract have been validly assigned to Onward. I understand that your Lordships and Ladyship are of the same view, and accordingly I would suggest that the parties have 14 days to make submissions in writing as to the order that this House should make in relation to the costs in your Lordships’ House and below.


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