OH WHY ED SHEERAN CAN’T USE A STAND IN: DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS

In Sheeran & Ors v Chokri & Ors [2021] EWHC 3553 (Ch) Mr Justice Meade set out some of the duties owed by a litigant in relation to the disclosure process.

“… Mr Sheeran’s manager undertook the disclosure exercise on his part. In my view that is unsatisfactory and I order, of my own motion, that Mr Sheeran is to make a witness statement, when the claimants comply with my order in relation to paragraphs 1-5 of the draft order, stating that he has personally satisfied himself that his disclosure obligations have been met.”

THE CASE

The claimants are bringing an action for a declaration that a song “Shape of You” do not breach the copyright of works owned by the defendant.

THE BLOGGER’S PRIVILEGE

Not for the first time, blogging gives the reader an opportunity to consider the relevant music.

Shape of You can be heard here.

Oh Why can be heard here.

THE APPLICATION

The defendants sought a declaration on the basis that the claimants had failed to comply with an order for Extended Disclosure.

THE TASK BEFORE THE COURT

The judge considered the task before the court.

    1. This requires me to proceed in to two stages: first of all, I have to identify whether there has been a failure to comply (17.1), and if so I must be satisfied by the party applying for an order – which is the defendants – that making some curative order of the type referred to in 17.1 (1)-(5) is both reasonable and proportionate. The principles that I have applied so far are not really in dispute between the parties. What is in issue before me today is their application, and the parties also disagree about whether the DRD was properly drawn.
    1. Mr Sutcliffe defends the DRD and Ms Bowhill for the claimants accepts the shortcoming that I have identified with it but, as I say, I am satisfied that it should not have 2 been drawn up in the form that it was. I am also satisfied that to consider making an order under paragraph 17 of the Practice Direction I need more than just a general suspicion that there may have been a shortcoming in relation to disclosure and I was referred, by Ms Bowhill, to the decision of Mr Robin Vos QC (sitting as a deputy High Court Judge) in Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd [2021] EWHC 849 (Ch) as to the standard to apply.

 

  1. In my judgment there must indeed be some basis for going behind the process which has been carried out. Speculation is not enough. Something is needed to show that there is a likelihood (as opposed to a possibility) of further relevant documents existing.

DELEGATING THIS TASK MAY LEAD TO BAD HABITS

The documents sought related to the creative process and the claimants’ social media account.  One point the judge made was that the disclosure process must be undertaken by the claimants personally and could not be delegated to their manager.

    1. First of all, there is a date or an event referred to in one of the videos that I have been invited to look at called ‘Album Delivery Day’ and it is obvious to me that Mr Sheeran (if no 5 one else) will know what ‘Album Delivery Day’ was. In the video that I was invited to watch reference is made to an additional song being in his contemplation then and I direct that Mr Sheeran must identify to the defendants, if he is able to, and to the best of his ability, what ‘Album Delivery Day’ was. I must say that my own appreciation from all the materials in the case that it is all too likely that ‘Album Delivery Day’ was after 16 October 2016, in which case it will not be relevant, but it is an important question that has been asked and it will be very easy for Mr Sheeran to respond to it.
  1. Secondly, I have said already that Ms Bowhill has said that Mr Sheeran’s manager undertook the disclosure exercise on his part. In my view that is unsatisfactory and I order, of my own motion, that Mr Sheeran is to make a witness statement, when the claimants comply with my order in relation to paragraphs 1-5 of the draft order, stating that he has personally satisfied himself that his disclosure obligations have been met.