Following a recent High Court decision, The Sex Pistols frontman, Johnny Rotten (real name John Lydon)(the defendant) has been prevented from stopping the band’s songs being used in the upcoming television series Lonely Boy: Tales from a Sex Pistol based on the memoire of Steve Jones. This high profile case made the headlines recently but little was reported on the reasoning. This blog explores this in more detail and acts as a useful reminder on being well prepared in gathering evidence and making amendments quickly and with good reason, to avoid problems later down the line.
About the case
The claim brought by Steve Jones and former band mate Paul Cook (the claimants) sought a court order to enforce their Band Members Agreement which allowed the band members to agree by way of majority decision how the band’s intellectual property rights should be exploited. The defendant argued that his bandmates couldn’t rely on the terms of the agreement in circumstances where they had never previously been put into practice. He pointed to several occasions when single band members had vetoed decisions regarding the use of the band’s intellectual property in support of his argument.
In handing down his judgment the judge reiterated the requirements for an estoppel argument to succeed, and found that the defendant had not met those requirements.
Making late amendments
This acts a reminder of the importance of having a case properly pleaded at the appropriate time.
As part of the judgment, a very late application to re-amend the defence was considered. The original pleadings appeared to be lacking reliance and unconscionability in what is said to be essential elements needed to run an argument of estoppel. Despite a request for further information, no further and better particulars were forthcoming.
The deficiencies in the pleadings were highlighted in skeleton arguments and following a delay to the start of trial, a pre-trial hearing took place in which the issues were discussed. The judge made clear that the defendant needed to be clear in his case and that there was to be “no surprises part way through the trial.” As a result, the defendant’s counsel prepared a note on detriment, but still didn’t plead to the issue of unconscionability. No application was made to amend the pleadings.
It wasn’t until day four of the trial after the end of the claimants’ last witness a finished version of the re-mended defence was produced. The defendant’s counsel did not make his application to amend on the next morning, and instead waited until the end of his final submissions.
The application was, in part, opposed by counsel for the claimants.
The judgment referred to the well established principles of Quah Su-Ling v Goldman Sachs International  EWHC 759 (Comm) when considering an application to amend.
The judge noted that the application was very late both chronologically and procedurally and that “the evidence should relate to the pleaded case, not the other way round”. It this case it was an essential element which they were now, somewhat retrospectively, attempting to re-plead, or plead for the first time. He found there to be no good reason for the lateness.
Overall he concluded that “The disclosure and evidential difficulties which this late amendment presented, and the lack of explanations, are sufficient by themselves to justify the dismissal of the amendment application”.
This case is an important reminder of the requirements to gather evidence to properly plead the case in the first instance. If there is a requirement for amendments, that application should be made without delay and with good reason. Attempting to re-plead essential elements of a claim based on evidence disclosed later on in the case is not as explained above, likely to be tolerated.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.