McKinty and Wright Solicitors - Northern Ireland Based Solicitors, Lawyers Belfast.

The House of Lords so held, allowing an appeal by the claimant, Matthew Fisher, and dismissing a cross-appeal by the defendants, Gary Brooker and Onward Music Ltd,, from a decision on 4 April 2008 of the Court of Appeal (Mummery LJ and Sir Paul Kennedy; David Richards J dissenting) ([2008] Bus LR 1123) allowing in part the defendants’ appeal from a decision of Blackburne J [2006] EWHC 3239 (Ch); [2007] FSR 255, who on 20 December 2006 granted the claimant declarations (1) that he was co-author of the music to a song entitled “A Whiter Shade of Pale” which was recorded by the band Procol Harum and released as a single on 12 May 1967; (2) that he was a joint owner of the copyright with a share of 40%; and (3) that the defendants’ licence to exploit the song had been revoked on 31 May 2005 when the claimant issued proceedings. The Court of Appeal set aside the second and third declarations.

LORD NEUBERGER OF ABBOTSBURY said that the majority of the Court of Appeal had held that it was unconscionable in all the circumstances for the claimant to have revoked the implied licence and that the defences of acquiescence and laches operated to disentitle him from the exercise of the court’s discretion to grant the second and third declarations. On the facts, the judge was right to reject the contention that by executing the recording contract the claimant effectively assigned his share of the music copyright to Essex. The unattractiveness of the defendants’ contention was reinforced by the fact that one was here concerned with five musicians, all of whom were in their early twenties, and a highly experienced music recording and publishing company, on whom they were no doubt relying. Acquiescence added nothing to estoppel and laches, at least in a case like this. Failing to raise or enforce an equitable right for a long period could be characterised as acquiescence. As to estoppel, given that the defendants’ case was based on the fact that the claimant did not raise his entitlement to a share of the copyright, they could succeed only if they could show that they reasonably relied on his having no such claim, that they acted on that reliance, and that it would be unfairly detrimental to them if he was now permitted to raise or to enforce such a claim. Laches was an equitable doctrine under which delay could bar a claim to equitable relief. Although there was no immutable requirement of detriment, some sort of detriment was usually an essential ingredient of laches. Laches applied where it would be practically unjust to give a remedy, and where a defence was founded on mere delay, the validity of the defence had to be tried upon equitable principles so that the length of the delay and the nature of the acts done during that time were relevant considerations. There was no evidence that Essex or the defendants would have acted any differently from the way they did if the claimant had pressed his claim in 1967 or in the ensuing years. His very long delay in pursuing his claim had been of considerable financial benefit to the defendants, effectively outweighing any disadvantage to them resulting from the delay. The basic problem for the defendants was that there was no English law statutory equivalent in the field of intellectual property to the doctrine of adverse possession in relation to real property. The mere passage of time could not undermine the claim. As to laches, there were two problems. First, laches could only bar equitable relief, and a declaration as to the existence of a long term property right recognised as such by statute was not equitable relief. Secondly, in order to defeat the claim on the ground of laches, the defendants had to demonstrate some “acts” during the delay period which resulted in a “balance of justice” justifying the refusal of relief to which the claimant would otherwise be entitled. The defendants were unable to do that.