Specific Disclosure Application In A Music Copyright Infringement Claim Fails (Sheeran And Others v Chokri And Others)

• Published date: 21 February 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Arbitration & Dispute Resolution
• Law Firm: Gatehouse Chambers
• Author: Mr Phillip Patterson

Dispute Resolution analysis: The owners of the copyright of a song, 'Oh Why' have failed in a specific disclosure application brought under CPR PD51U against Ed Sheeran and others responsible for writing 'Shape of You'.

Sheeran and others v Chokri and others [2022] EWHC 187 (Ch)

What are the practical implications of this case?

This is an interest judgment in a high-profile music copyright claim which considers in detail both the application of paras 17 and 18 and CPR PD51U and the broader rules relating to without prejudice privilege. A significant number of authorities on the topic of without prejudice privilege were considered. A report had been supplied to the Claimants in the course of settlement negotiations involving the Claimants and the other parties to previous proceedings. The subsequent settlement agreement did not affect the without prejudice privilege which the document attracted when supplied in those circumstances and for this purpose. Nor was such privilege waived when it was referred to in emails disclosed by the Claimants. Even though disclosure was now being sought by an entity which was not party to the earlier proceedings, the Claimants were still entitled to use the without prejudice privilege to resist the application for disclosure by these Defendants. The summary of principles set out by Newey J in EMW Law LLP v Halbourg [2017] EWHC 1014 (Ch) was approved. Without prejudice privilege survived the settlement of proceedings and can extend beyond the parties to the relevant negotiations. There is a list of exceptions to the without prejudice rule and two such exceptions were examined. (1) When the issue is whether the without prejudice communications led to a concluded compromise agreement. (2) Negotiations for compromise of proceedings may be relevant to the question of whether the claimant acted reasonably to mitigate his loss in his conduct and conclusion of negotiations. The list of exceptions is not closed.

What was the background?

The singer, Ed Sheeran and others responsible for writing the song, 'Shape of You' brought a claim for a negative declaration that they had not infringed the copyright of the Defendants in another song, 'Oh Why'. Correspondence had suggested that the Claimants had infringed that copyright. The Defendants counterclaimed alleging the same infringement. In the Defendants' Reply to Defence to Counterclaim they raised a number of other examples of alleged copyright infringement by the Claimants or one of...