Final curtain call

On 14 February 2013 the Court of Appeal in Miller v Sutton [2013] EWCA Civ brought to an end a long running campaign by Mr Miller against his former solicitor in relation to his failed business selling Jimi Hendrix CDs.

In 2003, Mr Miller's company, Purple Haze (PH), obtained a licence and released a CD of two live performances by Jimi Hendrix in Stockholm in 1969. In 2005 the Hendrix Estate obtained summary judgment against PH and Mr Miller on the basis that it owned the property rights in the performances and the production and distribution of the CD infringed those rights.  Mr Sutton represented Mr Miller in that action.  The Hendrix Estate brought other successful litigation against Mr Miller and PH in which he represented himself.

In 2011 Mr Miller sued Mr Sutton for damages for professional negligence on the basis that if the litigation had been conducted properly, and the correct evidence put before the Court (including a 1965 exclusive recording agreement), the summary judgment application would have failed.  There were other allegations in relation to Mr Sutton's conduct, including the preparation of evidence.  At two hearings Mr Miller's action was struck out on the basis that the allegations were misconceived.  On the second hearing, the judge held that Mr Miller had no realistic prospect of showing that the 1965 agreement conferred rights to the Stockholm performances.  Mr Miller's action was undermined by his own 2005 statement in which he explained that Swedish radio made the recording, and that it would have been authorised by his licensor.  The 1965 agreement applied to studio recordings not recordings of live concerts.

Mr Miller was given limited permission to appeal in respect of the application of the 1965 agreement. Before the Court of Appeal Mr Miller argued, for the first time, that the recording of the Stockholm concerts was in fact a re-engineered studio recording, and that Mr Sutton had concocted Mr Miller's 2005 statement which he signed without reading.

The Court of Appeal agreed with Mr Sutton that Mr Miller's claim was doomed to fail.  The 1965 agreement plainly applied to studio and not live recordings.  In order to overcome this problem, Mr Miller advanced a new argument, which was contrary to his pleaded case and his own earlier evidence.  The Court of Appeal readily dismissed these assertions.  They also rejected the allegation that his 2005 witness statement was concocted by Mr Sutton, finding that this allegation was wholly lacking in credibility.  Mr Miller's 2005 witness statement was fatal to his appeal. RPC acted for Mr Sutton.