Sole practitioner wins negligence battle over Hendrix concert

Sole practitioner Clive Sutton has seen off a High Court negligence action by a former client who claimed he was badly advised in a row over a CD of two concert performances given by rock legend Jimi Hendrix in Stockholm in January 1969.

Sutton, honorary secretary of the Sole Practitioners Group and a leading opponent of ABSs, had applied to have the claims by Lawrence Miller struck out.

Delivering judgment in Miller v Sutton [2012] EWHC 906 (Ch), John Martin QC, sitting as a deputy High Court judge, said Miller controlled Purple Haze Records, which issued the CD in 2003, and was sued by Experience Hendrix, the successor to the Hendrix estate.

Experience Hendrix claimed that production and distribution of the CD infringed its rights as owner of the performer's property rights in the Stockholm concerts, and obtained judgment in its favour at the High Court in 2005.

The court heard that Miller sued Sutton last year, claiming that he had been negligent in his conduct of the Experience Hendrix proceedings and, without that negligence, the claim against Miller would have failed.

However, Mr Justice Eder struck out all Miller's allegations, with the exception of one relating to the 'Sue Records agreement'.

Deputy Judge Martin said in his judgment that Miller had a 'reasonable prospect' of establishing that the rights to Jimi Hendrix's services, except in relation to the USA and Canada, were assigned to a company called Yameta and 'ultimately came to be held by Purple Haze'.

He said that all Purple Haze needed to show was that the Sue Records agreement gave it a reasonable prospect of defending the claim by Experience Hendrix.

Deputy Judge Martin said the 'critical question' was whether Miller had a reasonable prospect of showing that the agreement conferred rights to the Stockholm performances.

However, he said Miller's own evidence established that Yameta consented to the recording of the concert by Swedish radio.

'That has two consequences: first, that the recording was not made pursuant to the Sue Records agreement; secondly that Jimi Hendrix did not break the Sue Records agreement by allowing the recording to be made.'

Deputy Judge Martin said that, as a result, the rights conferred on Yameta did not apply to the concert and there could be no objection to an assignee from the Hendrix estate enforcing his performers' rights.

'The allegations relating to the effect of the Sue Records agreement have no realistic prospect of success and Mr Sutton is entitled to summary judgment on them.'

Sutton told Solicitors Journal that Hendrix left 'a great musical legacy together with a huge legal legacy. There is no sign at the moment that either of them will die away.'