Neutral Citation Number: [2006] EWHC 1009 (Ch)
Case No: HC 02 C00043
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/05/2006
Before:
MR JUSTICE LEWISON
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Between:
ASTON BARRETT |
Claimant |
|
- and - |
||
|
(1) UNIVERSAL-ISLAND RECORDS LIMITED |
Defendants |
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Mr Stephen Bate and Mr Richard Munden (instructed by Hamlins) for the Claimant
Ms Elizabeth Jones QC and Mr Daniel Lightman (instructed by Eversheds) for the Defendants
Hearing dates: 16th 17th 27th 28th 29th 30th 31st March 2006
3rd 5th 6th 7th April 2006
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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Mr Justice Lewison
Mr Justice Lewison:
Introduction and parties.
Approach to the evidence.
The witnesses.
Bob Marley and the Wailers: the early years.
The contractual documents.
The contract claims.
The copyright claims.
Money making: the general picture.
The arrival of Don Taylor.
The 1974 agreement.
What the documents show.
The contents of the 1974 agreements.
The immediate aftermath.
Natty Dread and Rastaman Vibration.
Management changes.
New advisers.
A fifty-fifty split.
Bob Marley and his companies.
The 1975 agreement.
The Media Aides agreement.
Other agreements.
Payments during Bob Marley's lifetime.
Bob Marley's death and its aftermath.
Previous claims by the Wailers.
The 1986 New York action.
The 1989 Jamaican action.
The 1989 New York action.
The 1994 Settlement Agreement
Devolution of title.
The current claim and its progress.
The strike out application.
The first issues for decision.
The effect of the 1994 settlement agreement
Introduction.
Approach to construction.
The context of the 1994 settlement agreement
The words of the settlement agreement
Should the 1994 settlement agreement be enforced against Mr Aston Barrett?
The position of the estate of Carlton Barrett
Cause of action estoppel
Introduction.
The English test
New York law.
Abuse of process.
The test
Application: Aston Barrett
Application: the estate of Carlton Barrett
Estoppel acquiescence and laches.
Estoppel
Laches.
Application.
The contract claims.
The pleaded case.
Was Carlton Barrett party to the 1974 recording agreement?.
What Mr Barrett said.
Island Records' version
Was Bob Marley an agent for the Barrett brothers?
The 1975 agreement
The Media Aides agreement
Trust of a promise?.
What is the breach of contract alleged?
Unjust enrichment
Partnership issues.
Music making: the general picture
A fraud on Danny Sims?.
Music making: the documentary evidence
Music making: the specific compositions
Preliminary
Who the Cap Fit
Rebel Music (3 O'Clock Roadblock)
Talkin' Blues.
Them Belly Full (But We Hungry)
Revolution
War
Want More
The DVDs
The copyright claims
Separate copyrights.
Joint authorship.
Derivative copyright
Who the Cap Fit
Licence.
Effect of revocation.
The performers' right claims.
Introduction.
The scope of the claim.
The statutory provisions.
A new right?.
Consent to what?.
Prior arrangements or agreements.
Was there no consent?.
Counterclaim.
Result
Bob Marley and the Wailers were among the first reggae performers to burst onto the international stage. Bob Marley remained the best-known reggae performer until his untimely death from cancer in 1981 at the age of 36. This case concerns the claim by two former members of the Wailers, Aston ("Family Man") Barrett and his brother Carlton ("Carly") Barrett to a share of the income that is still generated from recordings and copyrights. Carlton Barrett was murdered in 1987; and his brother brings this claim on behalf of his estate, of which he is the administrator, as well as on his own behalf. The claim is put in various ways. In setting out the uncontroversial facts I acknowledge my indebtedness to the comprehensive written arguments prepared by counsel on each side (Mr Stephen Bate and Mr Richard Munden for the Claimant; and Ms Elizabeth Jones QC and Mr Daniel Lightman for the Defendants), which I have shamelessly plundered.
The primary claim is brought against the first two Defendants. The First Defendant, Universal-Island Records Limited ("Island Ltd"), used to be called Island Records Limited. It was the original party to a recording agreement made in October 1974 ("the 1974 agreement") on which Mr Barrett relies. The company formerly known as Island Records Inc ("Island Inc"), which was the party to another recording agreement made with Media Aides Ltd ("the Media Aides agreement"), ceased to exist on 30 November 1999. On that date all of its assets and liabilities were assigned to and assumed by the Second Defendant, UMG Recordings, Inc ("UMG"), which is thus its successor in interest. The Media Aides agreement also features in the story. Except where it matters I have generally referred to both these Defendants as "Island".
In order to resolve the issues in this case it will be necessary to examine events going back over thirty years; and also examine litigation that that has taken place in Jamaica and in the United States of America.
One of the defences raised by Island is that Mr Aston Barrett compromised his claims in settlement of the previous litigation; and that it is an abuse of process for him to bring the current proceedings, either on his own behalf or on behalf of his brother's estate. However, Island were not parties to the compromise agreement. The Third Defendant (Rita Marley) is Bob Marley's widow. The Fourth to Tenth Defendants are some of his children. They were parties to the compromise agreement; and have been joined in order to enforce that agreement in these proceedings and seek an injunction against other proceedings.
The Twelfth and Thirteenth Defendants claim to be the current owners of the copyrights in the disputed compositions. The Thirteenth Defendant ("56 Hope Road") is also the current owner of the rights to receive royalties under the 1974 agreement and Media Aides agreement. One of the subsidiary claims is that 56 Hope Road is bound by a trust of an obligation to pay royalties to the Barretts. The Eleventh Defendant was for a while the administrator of the disputed compositions in the UK.
Most of the crucial events took place between ten and thirty five years ago. Many of those involved are now dead. I have been shown statements made by some of them in previous proceedings. Since many of the events took place on the other side of the Atlantic, some of the witnesses gave evidence by written statement only, so that their evidence was not tested by cross-examination. Some of the witnesses called to give oral evidence naturally have little independent recollection of the events in question. I have, therefore, placed considerable reliance on contemporaneous documents, and the inferences that can fairly be drawn from them. I have also tested the reliability of witnesses against the contemporaneous documents. In many instances a finding about reliability on events later in the story has helped me in coming to a conclusion on reliability about events earlier in the story. Partly for that reason I defer resolution of the conflicts of evidence about some of the contentious events from their place in the chronology until later in this judgment.
I should now say something more general about some of the witnesses whose evidence I did see. Some of the reasons for my general comments will become clearer when I deal with particular conflicts of evidence.
Aston Barrett ("Family Man"). Aston Barrett dropped out of elementary school without having learned to read or write. He still has great difficulty in reading. He was not at all interested in the business side of the Wailers; and left dealing with contracts and lawyers to others. As a result he had the greatest difficulty in answering any questions about business dealings. He was plainly close to Bob Marley himself, whom he trusted implicitly. At this remove of time, his recollection of events was hazy; and I also consider that, as often happens, he has reconstructed events in his mind according to how he would like them to have been. In short, I did not find him a reliable witness of fact when it came to business dealings. I deal with his evidence on musical matters in more detail later.
Ian Winter ("Natty Wailer"). Mr Winter is a musician who also looked after the building in which the band played and in which some of them lived. Without wishing to sound disrespectful, Mr Winter was not a core member of the Wailers; although he was more than just a hanger-on. I had the impression that he was doing his best to recall events as he perceived them. However, he was not in possession of the full picture and, not surprisingly after this lapse of time, his memory was hazy on details.
Errol Barrett. Errol Barrett is one of Carlton Barrett's children. His evidence was peripheral to the issues I have to decide. He has a strong sense of grievance against Rita Marley; and believes that she ill-treated him when he was younger. His evidence was contradicted by Andrew Williams, whose evidence I prefer; and also by that of Mrs Marley. I found his complaints exaggerated.
Donald Kerr ("Junior Marvin"). Junior Marvin is, I think, the best-educated of the Wailers. It was no doubt for that reason that he was effectively the spokesman for the surviving Wailers after Bob Marley's death. He feels strongly that he and the Wailers have been cheated out of their entitlement. Although he himself has no financial interest in the outcome of the present case, he is concerned to see that after all these years justice is finally done. He gave his evidence carefully and calmly. However, where it could be tested against contemporaneous documents, his evidence could be demonstrated to have been flatly contradictory to them. This has led me to approach his evidence with great caution where it was challenged.
Al Anderson. Al Anderson is another of the surviving Wailers. He also gave his evidence in a calm and dignified manner. However, on several crucial issues I was unable to accept his evidence, which did not, in my judgment, accord with the inherent probabilities or the contemporaneous documents.
Christopher Blackwell. Chris Blackwell is the founder of Island Records, and was largely responsible for introducing reggae to the world stage. Some of his evidence was, in my judgment, reconstruction rather than recollection; which, after all this time is not entirely surprising. However, in general I think that he was a reliable witness.
Rita Marley. Despite the attacks made on Mrs Marley's veracity, I found her to be a truthful witness. She fairly withdrew some of the more disparaging remarks she made about the Barrett brothers in her witness statement. But she did so with very little resistance. Over the years she has, I accept, tried to do her best both for the Wailers and for the estate, even though at times, their respective interests have been in conflict.
J Reid Bingham. Mr Reid Bingham was an ancillary administrator of Bob Marley's estate. He gave his evidence by video link. Although his personal knowledge of the relevant events was limited, I found him to be a reliable witness.
Diane Jobson. Ms Jobson was Bob Marley's personal lawyer. She was an impressive and cogent witness.
Bob Marley wrote, performed and recorded songs from the early 1960s. He married Rita Marley in 1966. By the late 1960s Bob Marley had formed a band called the Wailing Wailers, and subsequently the Wailers, with Peter MacKintosh (professionally known as "Peter Tosh") and Neville Livingston (professionally known as "Bunny Wailer").
The Barretts had played music since their early childhood. Aston Barrett is a proficient bass guitarist and keyboard player. Carlton Barrett was primarily a drummer and percussionist. They (and others) formed a band called "The Hippy Boys" in 1967. They also performed in a band called "The Upsetters". They had had international success with their recording work in the late 1960's, in particular, with two songs called "the Liquidator" and "Return of the Django". The second of these reached Number 4 in the British charts. At about this time Alva Lewis, who played with Family Man in The Upsetters, told him that Bob Marley had heard their music on the radio and had asked Alva to introduce him to Family Man, which he did. They met in an alleyway in Kingston, Jamaica. Bob Marley told Family Man that he was very interested in the sound that he had developed with The Upsetters and The Hippy Boys. Bob Marley told him that it was international success that he was after; and asked the Barretts to join the Wailers, which they did in about 1970.
Chris Blackwell had founded Island Records in 1962. His plan was to distribute Jamaican music in London, where he perceived a ready market among immigrants from the West Indies. At first he bought master tapes in Jamaica and re-issued them in London. Mr Blackwell first met the Wailers (then consisting of Bob Marley, Peter Tosh and Bunny Wailer) in London in 1971. He agreed to finance their first album, which was eventually released as "Catch a Fire". Mr Blackwell had grown up in Jamaica; and he owned a property at 56 Hope Road in Kingston, also known as "Island House". Bob Marley and the Wailers had the use of it until Bob Marley's death in 1981.
Before 1972 Bob Marley had entered into a number of publishing agreements and a recording agreement, with companies controlled by Johnny Nash, a successful US recording artist, and Danny Sims. JAD Records entered into an exclusive licence with CBS in respect of Bob Marley's recording services. Bob Marley's relationship with Danny Sims is of some importance in assessing some of the claims in this case.
On 25 August 1972 Bob Marley, Peter Tosh and Bunny Wailer entered into a recording agreement with Island Ltd. It is not suggested that the Barretts were parties to that agreement. Bob Marley, Peter Tosh and Bunny Wailer each signed the 1972 agreement on the lines provided above their typed names. They were paid an advance which enabled them to return to Jamaica to lay down tracks for the album. Entry into the 1972 agreement led to a dispute with CBS; and on 22 December 1972, CBS agreed terms for the release of Bob Marley from any further obligations to CBS.
Bob Marley brought the master tapes to London in late 1972; and the album was released in 1973 on the Island Records label. Two albums, "Catch a Fire" and "Burnin", were made under the 1972 agreement. The Barretts, and others including Earl "Wya" Lindo and other session musicians, performed on these albums which were released in 1973. Rita Marley said that the Barretts performed as backing musicians on these albums. Aston Barrett said that he was more than just a backing musician, even at that stage. He arranged some of the tracks. But he did not claim that his work on those albums entitled him to any share of copyright in either the lyrics or music of any of those tracks. The album credits on "Catch a Fire" said:
"Marley, Tosh and Livingston were joined by Aston "Familyman" Barrett and his brother, Carly. The current Wailers stand unchallenged as the leading group on the reggae scene."
In my judgment the album credits are more consistent with Aston Barrett's perception of the role of the Barrett brothers as being more than just backing musicians, even if they do not entirely support his claim to have been the arranger of any of the tracks.
There were also disputes between Bob Marley and Danny Sims, as a result of which on 11 October 1973 Bob Marley signed a composer agreement with Cayman Music Inc for a period of 3 years. Cayman Music was a company owned or controlled by Danny Sims. This agreement provided for all songs written by Bob Marley during that period to be assigned to Cayman Music. The existence of this agreement is relevant to the disputed copyrights. Many of Bob Marley's songs were assigned to Cayman Music under this agreement, including well-known songs recorded by other artists such as "I Shot the Sheriff".
The 1972 arrangement with Peter Tosh and Bunny Wailer did not last long. In late 1973 or early 1974 they left the band. Bunny Wailer did not want to tour; and it seems likely that Peter Tosh was to some extent resentful of the attention and acclaim that Bob Marley was receiving.
After the departure of Peter Tosh and Bunny Wailer, Bob Marley continued to record and perform; and was backed by other performing artists, including the Barretts, and the trio of Rita Marley, Judy Mowatt and Marcia Griffiths, known as "The I Threes". The musicians then performing with Bob Marley were billed as "the Wailers". The identity of the musicians performing with Bob Marley changed from time to time during the remainder of Bob Marley's life, but they always included the Barrett brothers, and were always billed as "the Wailers".
However, precisely what happened is hotly in dispute. Mr Barrett says that Chris Blackwell was worried about the future of the band. Bob Marley and the Barretts had discussions not long after Peter Tosh and Bunny Wailer left, in which they agreed to re-form the group, and to divide equally the money they earned from their musical work. They also agreed that Bob Marley would deal with the business aspects of their musical work and with Island Records, and in particular negotiate a record deal for all three of them. The name of the new band was to be "Bob Marley and the Wailers", a name chosen by Mr Blackwell, and which was to appear on the cover of their first album, "Natty Dread", later released in latter part of 1974 or January 1975. Recording sessions for "Natty Dread" took place in mid-1974. Mr Barrett says that Bob Marley particularly wanted to secure the Barretts, because Peter Tosh and Bunny Wailer had left him, and because the Barretts had a special musical talent and had discovered a sound that had appeal outside the Caribbean.
The Defendants' original position was that that the Barretts were no more than "backing musicians" or in Rita Marley's words "backing or session musicians". However, during the course of the trial it became clear from the evidence both of Mr Blackwell and of Mrs Marley that they were more than just backing musicians. Aston Barrett, in particular, was recognised as having made an important contribution to the overall sound of Bob Marley and the Wailers. That, however, is not what this case is about; or at least not at that level of generality.
A written agreement came into existence on 15 or 16 October 1974. It consists of a main agreement and at least two side letters. I will have to examine in detail the circumstances leading up to its negotiation, and its immediate aftermath, because one of the main issues in the case is whether the Barretts, who are named in the agreement but did not sign it, are parties to the 1974 agreement. The material documents are:
i)a letter dated 15 October 1974 and signed by Bob Marley;
ii)a recording agreement. It takes the form of a letter from Island addressed to Bob Marley and the Barrett brothers and incorporating standard conditions, but signed by Bob Marley alone;
iii)a side letter dealing with the possible role of a production company, again addressed to Bob Marley and the Barrett brothers;
iv)a side letter dealing with album sleeves, again addressed to Bob Marley and the Barrett brothers.
On 5 August 1975 the 1974 agreement was apparently terminated and replaced with a second agreement between Bob Marley alone and Island.
The third of the agreements is an agreement between Media Aides Ltd and Island made in 1976.
Mr Barrett says that he and his brother were parties to the 1974 agreement, although they did not sign it. He goes on to say that the letter of termination did terminate the 1974 agreement both as regards Bob Marley and the Barretts (except as to payment of royalties of recordings already delivered), on the basis that Bob Marley was acting as the Barretts' agent; and that, as part of a wider arrangement, Bob Marley signed the 1975 agreement on behalf of himself, and the Barretts; again acting as agent for the Barretts. In the alternative he says that if Bob Marley was not acting as the Barretts' agent with respect to the termination letter, their rights continued to be governed by the 1974 agreement.
So far as the subsequent arrangements are concerned, Mr Barrett says that in entering into the 1976 arrangement and procuring the execution of the Media Aides agreement, Bob Marley was either acting on his own behalf or both on his own behalf and as the Barretts' agent. If he was acting on his own behalf, he could not terminate the contractual rights of the Barretts under the 1974 or 1975 agreements. If, on the other hand, he was acting as the Barretts' agent then the arrangement was obviously self-dealing and does not bind the Barretts.
Mr Barrett also claims for himself and his brother's estate copyright in seven songs, on the basis of joint composition. The seven songs, and Mr Barrett's claims about who composed them are:
Title |
Author(s) |
Rebel Music (3 O'Clock Roadblock) |
Aston Barrett, Hugh Peart |
Talkin' Blues |
Carlton Barrett, Legon Coghil |
Them Belly Full (But We Hungry) |
Carlton Barrett, Legon Coghil |
Revolution |
Carlton Barrett, Legon Coghil |
War |
Carlton Barrett, Allan Cole |
Want More |
Aston Barrett |
Who the Cap Fit |
Aston Barrett, Carlton Barrett |
Mr Barrett acknowledges that "Who the Cap Fit" is a derivation of a song called "Man to Man" originally composed by Bob Marley himself. The first four of these songs appeared on the album "Natty Dread" and the last three on "Rastaman Vibration". "Them Belly Full" also appears on "Live!"; and "Rebel Music" and "War" appear on "Babylon by Bus". Consideration of these claims requires an examination of the way in which the compositions performed by Bob Marley and the Wailers came into existence.
Bob Marley and the Wailers toured in order to promote the sale of records. A succession of concert tours took place in the USA and Europe, sometimes playing to audiences of over 100,000. Records sold in their millions. It appears that merchandise was also sold bearing Bob Marley's name and image.
The principal sources of income resulting from the composition, recording, touring and merchandising activities described above are as follows:
i)Artist royalties, paid by the artist's record company to the artist or his company pursuant to the terms of the recording contract;
ii)Mechanical royalties, which are paid by the record company to the owner of the copyrights in the songs which have been recorded, in consideration of a "mechanical licence" from the copyright owner permitting the song to be reproduced by mechanical means, i.e. a record or tape and now a CD or DVD;
iii)Performance royalties, which are paid by collection societies, particularly ASCAP in the USA and PRS in the UK, to the owner of the copyrights in the songs (called the publisher's share) and also (separately) to the writer of the songs (the writer's share);
iv)Income from touring; this would be in part receipts from promoters, but also the tour would typically be supported by the record company which would pay "tour support"; and
v)Income from sales of merchandise.
Typically also, musicians other than the featured artist who is contracted to the record company also perform on a recording ("session musicians"). They do not have an agreement with the record company for royalties. Rather they are paid a fee either by the record company or by the artist, and in return for that fee they consent, either impliedly or expressly, to their performances being recorded and reproduced.
In 1974 or 1975 Bob Marley and the Wailers were performing with Marvin Gaye in Jamaica. Don Taylor introduced himself to Bob Marley. According to some witnesses, he went down on bended knees, and kissed Bob Marley's shoes, saying "I want to work for you, brother Bob". At any rate, he became the manager shortly afterwards. The decision appears to have been taken by Bob Marley alone. Mr Barrett said that (as was usually the case) he left Bob Marley to take care of the business. All the witnesses agreed that Don Taylor arrived on the scene shortly after the Marvin Gaye concert. There was some dispute about when this happened. Mr Blackwell placed this in May 1974. Ms Jobson placed it in 1973 to 1974. The Wailers placed it in 1975. In an affidavit sworn in subsequent proceedings in Jamaica, Mr Taylor himself said:
"[F]rom the beginning of 1974 ... I acted as Bob Marley's personal manager including managing the business and financial matters of "Bob Marley and the Wailers" partnership and of various companies affiliated with Bob Marley and/or "Bob Marley and the Wailers"."
Ms Jones' researches on the Internet (after Mr Blackwell had given his evidence) produced information that two Marvin Gaye concerts took place in Jamaica in late May 1974. This is consistent with Ms Jobson's evidence and directly corroborative of Mr Blackwell's evidence. It was not, I think, disputed; and I accept it. Although it is a small point, it is one indicator of the reliability of evidence.
On 6 August 1974 Bob Marley signed a letter authorising Island Artists Ltd to pay the sum of $3,500 to the law firm of Sanders & Tisdale, Los Angeles to permit Mr Raphael (Ray) Tisdale of that firm to come to England on behalf of Bob Marley. The money was to be deducted from any future advance payable to the Wailers. Bob Marley signed the letter "on behalf of WAILERS".
Bob Marley and Aston Barrett appear to have signed a letter authorising Mr Tisdale to represent them in negotiations relating to agreements with Island. The letter bears the date 26 August 1974 in manuscript. Island's solicitors at the time were Harbottle & Lewis. The partner responsible was Mr Levison. His file has been made available. Mr Levison and Mr Tisdale met. Mr Levison, unsurprisingly, has no present recollection of a meeting that took place over thirty years ago, but his manuscript note of the meeting has survived. At the top of the second page is a note reading:
"Wailers new deal for Bob Marley - [Family Carly]"
At the bottom of the same page is a note reading:
"Family) Carly) |
Option to take up on same basis No advance We advance rec costs royalty as BM" |
On 30 August 1974 Mr Levison sent Mr Tisdale a draft agreement, under cover of a letter which read in part:
"I enclose herewith a draft of the proposed agreement with Bob Marley and the Wailers. If the agreement is in order would you please arrange for it to be signed by Bob Marley, Family Man and Carly and return it to me in due course."
The draft recording agreement was in the form of a letter addressed to all three. The letter also enclosed a draft agreement giving Bob Marley and the Barrett brothers the option to buy the property at 56 Hope Road. During the option period they were to be entitled to use the property but they would not be entitled to use it after 1 June 1976 "or at any time if your exclusive recording agreement with Island Records Limited shall be terminated". On 2 September Mr Levison sent the draft option agreement to a lawyer in Jamaica for advice about security of tenure. In his covering letter he explained that his client intended to grant the option to "some Jamaicans" (plural). Mr Tisdale replied to Mr Levison's letter of 30 August on 10 September 1974. He said that he had reviewed the draft of the "new agreement between Bob Marley and the Wailers." He suggested a number of detailed changes to the draft. One of his suggestions (which was not accepted) was that if it was agreed that "one of the "Artist" should do a solo album, this album should count" towards the required number under the contract. He did not suggest any change to the parties to the agreement. His letter concluded:
"Our clients and I are most anxious to finalize execution of the subject agreements. It would be greatly appreciated if you can revise the agreements in accordance with our comments and transmit execution copies thereof to me for execution by our clients."
The contents of the 1974 agreements
On 15 or 16 October Bob Marley (alone) signed the various letters and agreements I have already referred to. Bob Marley also initialled every page of the recording contract itself. The material documents are as follows.
First, a letter dated 15 October 1974 and signed by Bob Marley. The relevant parts of it read:
"Dear Sirs,
Concurrent with the delivery to you of his letter, I am executing an exclusive artist's recording agreement with you dated as of August 27, 1974. Pursuant to the terms of such agreement, Island Records Ltd will be paying to me on behalf of "The Wailers" an advance, which is due upon delivery of my next album "Natty Dread", which was recently delivered to you.
Therefore, this letter constitutes my irrevocable authorization and instruction to you to disburse from such advance US$3401.26 payable to the law firm of Sanders & Tisdale. You may deliver this check to Mr Raphael E Tisdale of that firm.
.....
Very truly yours,
Robert Marley
PKA "Bob Marley"
on behalf of "The Wailers""
Second, a recording agreement. It takes the form of a letter from Island Records Ltd the relevant parts of which read:
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY & THE WAILERS
Attention care of Mr Raphael E. Tisdale
Dear Sirs,
We hereby confirm the terms of your exclusive recording agreement with us which terms are contained in this letter and the annexed artists recording contract standard conditions ("the Conditions")"
Each page was initialled by Bob Marley and he signed the letter. The Barrett brothers neither signed the letter, nor initialled the pages. Clause 4 of the letter agreement required Island Records to pay advances to the Artist the sterling equivalent of the following sums:
Amount |
Event |
$15,000 |
On acceptance of the first album |
$12,500 |
On completion of the first US tour |
$12,500 |
On acceptance of the second album |
$15,000 |
On completion of the second US tour |
$15,000 |
On acceptance of each album during the first renewal term |
$15,000 |
90 days after acceptance of each album during the first renewal term |
$20,000 |
On acceptance of each album during the second renewal term |
$20,000 |
90 days after acceptance of each album during the second renewal term |
The annexed standard conditions also contained the following terms:
i)Condition 1, which contains definitions. The definition of "period" was contained in the letter agreement itself. The period was to begin with the beginning of the recording of "Natty Dread" and to end on 26 August 1975 or (if later) 60 days after the artists had recorded not less than two albums. Island Records also had an option to extend the period; in each case for one further year. The definition of "Artist" was as follows:
""the Artist" shall mean the Artist or Artists whose names and addresses appear at the head of the Agreement..."
ii) Condition 2A which entitled the Artist to a royalty in respect of each record solely incorporating his performance recorded in pursuance of the agreement;
iii) Condition 3 which said:
"The Artist shall during the period ... shall render ... such performances (whether alone or together with any one or more other artists...as the Company shall elect for the purpose of reproduction in or by any sound recording (which expression shall be deemed to include ... video tapes and any similar devices whereby the Artist's performances can be recorded for use in synchronisation with visual images)."
iv)Condition 5 (D) which said:
"The Artist warrants and undertakes with the Company that the material recorded hereunder shall be mutually agreed between the Company and the Artist... and will be available to the Company for use in connection with records on the standard terms and conditions for the licensing of copyrighted material for records...and shall not infringe or violate any other right of any person..."
v)Condition 8, which required Island Records to account for payments at intervals of six months;
vi)Condition 10 by which the Artist assigned to Island Records the exclusive right of production reproduction sale and distribution of recordings incorporating the Artist's performances made in pursuance of the agreement;
vii)Condition 18 by which the Artist gave Island Records the "requisite consents" under the Dramatic and Performers Protection Acts in order that Island Records "should have the fullest use of the Artist's activities hereunder and the products thereof".
Third, a side letter dealing with the possible role of a production company. The relevant parts of it are:
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY AND THE WAILERSDear Sirs
We refer to our agreement of even date herewith. We understand that you may wish to form a production company which will supply your services to us and we confirm that in such circumstances we would be prepared to enter into a new agreement with such production company to supply your recordings on the same terms and conditions as those set out in the said agreement provided that you personally guaranteed all obligations of such production company and provided that we would incur no greater obligations and we would suffer no diminution of rights than we have under the said agreement from monies payable to such production company under such new agreement."
Fourth, a side letter dealing with album sleeves, the relevant parts of which read:
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY AND THE WAILERS
Attention care of SANDERS AND TISDALE.....
Dear Robert
With regard to our agreement of today's date herewith, we confirm that the details of sleeves and the text of liner notes for albums released pursuant to the said agreement shall be subject to the approval of you or your authorised representative (subject to your availability to give such approval and subject to such approval not being unreasonably withheld) until such time as your said approval is given we will have no obligation to pay the advance in respect of the album concerned..."
On 16 October 1974 Mr Tisdale sent Mr Levison a letter enclosing authority from Bob Marley to pay monies to his office; and asked Mr Levison to give it prompt attention "as soon as Mr Marley has forwarded to you fully executed copies of the August 27, 1974 recording agreement."
On 29 October 1974 Mr Levison wrote to Island Records. He pointed out that:
"While Bob has signed it it still requires signature by Aston Barrett and Carlton Barrett before any money is paid."
He also informed Mr Tisdale that payment would be made "as soon as the fully executed agreement has been received." On 1 November Mr Tisdale chased for a fully executed copy of the agreement "between Island and our clients". Mr Levison replied on 11 November 1974 that he was still waiting "to receive the agreement signed by Family and Carly". Mr Tisdale chased again on 3 February 1975. After some confusion, Mr Levison (who had by now left Harbottle & Lewis and gone to work in-house for Island) wrote on 27 March 1975. He said:
"I can now confirm that we have not received a fully executed copy of the new Bob Marley and the Wailers agreement. Accordingly the old agreement is still in force and as a matter of goodwill we have been making certain payments to Bob Marley as advances in the spirit of the new agreement. This has been done entirely on an ex gratia basis and without prejudice to our contractual position.
Accordingly there are at present no advances due to Bob Marley out of which we can pay the balance of the legal charges which are due from Bob to you. However, as soon as we receive the fully executed contract we would be able to make payment of this balance.
With regard to the question of the amount due to you I confirm that it had been our impression ... that the $3,500 originally paid would cover your costs and that if there were any balance you would be returning this to Bob Marley. However you have assured me as Bob Marley's attorney that Bob is fully aware of the full amount of your bill ... and that Bob has authorised us to pay you the balance..."
The sound recordings for the Natty Dread album were delivered to Island Records some time before 15 October 1974. Clearly the tracks had been laid down beforehand. It is not clear when the album was actually released. The sleeve of the original vinyl gives the date of 1974. So does the re-released album on CD. In his oral evidence Mr Blackwell thought that 1974 was probably right. But Mr Levison's letter of 27 March 1975 records that the album was released on 31 January 1975. In my judgment the contemporaneous letter is more likely to be right.
In his letter of 26 February 1975 Mr Tisdale records a telephone conversation some ten days earlier with Mr Levison in which the latter told him that Island had paid Bob Marley the advance due pursuant to the 1974 agreement. I infer that the advance was indeed paid to Bob Marley on or about 16 February 1975. The case papers include an undated calculation of deductions. It seems probable that these were prepared in about October 1974 by Island, and were deducted from the advance paid to Bob Marley in February 1975, although they may have represented actual payments made to Bob Marley some time earlier on an ex gratia basis, as indicated by Mr Levison's letter of 27 March 1975. The amounts included recording costs; and also air fares incurred by Aston Barrett while in the USA.
The Wailers toured the USA and Canada in June and July 1975. Island paid US$38,000.00 for the expenses of Bob Marley and the Wailers in connection with that tour. The request for payment came from Bob Marley alone. Mr Blackwell said that Natty Dread was popular outside Jamaica, was well reviewed and "people liked it". His perception of the potential of the group came from the live performance at the Roxy in Los Angeles. The band then toured England and played at the Lyceum, where "No Woman, No Cry" and other songs were played. Mr Blackwell described that concert as "a sensational show" and "a turning point"; and "No Woman, No Cry", the single, and the album "Live" were released.
Don Taylor explained to Bob Marley that he knew how to set up offshore companies, which would save tax; and that he had good contacts for this purpose: Marvin Zolt (an accountant) and David Steinberg (a lawyer), both in the USA. Partly as a result of this, Mr Tisdale ceased to represent Bob Marley. Messrs Zolt and Steinberg represented Bob Marley until his death.
Mr Barrett said that soon after the arrival of Mr Taylor he and Bob Marley came to a new arrangement. Instead of the three-way split originally agreed just before the making of the 1974 agreement, earnings would now be split so that Bob Marley would receive fifty per cent; and the remaining fifty per cent would be shared by the rest of the band. This would include income from all sources, including touring, record sales and merchandising; so Mr Barrett said that he thought it was a better deal. Mr Barrett was not able to give any details of when and where this arrangement was made. He said:
"As I told you, I don't do the business part of the deal. Bob did all of that with Don Taylor and Island."
The Defendants' witnesses accepted that there was a fifty-fifty split of sorts. However, they said that it was confined to income from touring, and that although Bob Marley took fifty per cent of net income, he distributed the remaining fifty per cent among the members of the band as he saw fit.
There is no evidence that Island were ever informed of any change to the arrangements between Bob Marley and the Barretts as regards monies covered by any of the written agreements.
Bob Marley had founded a record label called Tuff Gong in the early 1970s. (Tuff Gong was one of his nicknames). It does not appear to have had a corporate existence at that time. On 2 June 1975 a Delaware corporation called Tuff Gong Productions Ltd was incorporated. Bob Marley became one of the first directors of the company on 5 June 1975, and its President on 30 June 1975. Bob Marley also owned all its share capital. An agreement apparently dated 1 January 1975 between Tuff Gong Music, which appears to have been a division of Tuff Gong Productions, and Rondor Music (London) Ltd provides for Rondor Music (London) Ltd to administer certain compositions in the UK. A further agreement is dated "as of" 1 January 1975 between Tuff Gong Music and Rondor Music Inc., which as of its execution replaced the agreement with Rondor Music (London) Ltd. The songs licensed to Rondor were "No Woman No Cry", "Them Belly Full", "Rebel Music", "So Jah Seh", "Natty Dread" and "Talkin Blues". In addition, Tuff Gong agreed to license to Rondor all compositions which became owned by Tuff Gong during the period of the agreement.
Media Aides Ltd was a British Virgin Islands company. It was owned and controlled by Bob Marley.
On 27 May 1976, Bob Marley entered into an exclusive song writing agreement with a corporation owned by him called Bob Marley Music Ltd. That agreement was to take effect from the expiry of the agreement with Cayman Music, on 11 October 1976.
Also on 27 May 1976 Bob Marley Music entered into an administration agreement with Almo Music Corporation. This agreement was extended a number of times and was in existence at the date of Bob Marley's death. Some of the subsequent agreements were in the name of Bob Marley Music Ltd BV, a Netherlands corporation, which was the successor in interest to Bob Marley Music Ltd.
In his witness statement Mr Barrett said that Bob Marley had told him he was going to set up an offshore bank account to which he and the Barrett brothers would be signatories. However, Mr Barrett said that he had told Bob Marley that this would not be necessary and that he should set up the account for the three of them in his own name. In cross-examination he was much less sure whether he knew that offshore arrangements were being made.
The 1974 agreement was apparently terminated by a letter from Island Ltd to Bob Marley dated 5 August 1975, addressed to and signed by him alone. On the same day Bob Marley entered into a new agreement with Island Ltd, the relevant parts of which are:
"Mr Bob Marley
p/k/a BOB MARLEY & THE WAILERS
all care of 56 Hope Road, Kingston, JamaicaDear Sirs,
We hereby confirm the terms of your exclusive recording agreement with us, which terms are contained in this letter and the annexed artist recording contract standard conditions..."
The letter was signed by Bob Marley and Chris Blackwell. The term of the contract began on 5 August 1975 and was to last for three years or (if later) until 60 days after delivery of sufficient tracks to make six albums. The conditions applicable to the 1975 agreement were, so far as is material, the same as those applicable to the 1974 agreement.
On 25 November 1975 Don Taylor wrote to Chris Blackwell. He said:
"[L]et this letter serve as authorization for you to advance a retainer of $1400 U.S. per month to Carlton Barrett and Aston Barrett, members of the Wailers, when these individuals are not on tour, and to deduct same from session costs pertaining to your contract with Bob Marley."
Mr Levison replied on 17 December 1975. He said:
"With regard to your letter concerning Carlton Barrett and Aston Family Man Barrett I have today forwarded the sum of $8400 to your account ... and I have instructed further payments to be made of the same amount on 1st March, 1st June, 1st September and 1st December. This is on the basis that Bob Marley can request us to terminate this arrangement at any time and on the basis that we can terminate it if it results in us paying monies that are in excess of those due under our contract with Bob Marley, and that we can also terminate it if Bob Marley should agree to Carly and Family Man recording for an artist not on the Island label. I should be grateful if you would let me have a copy of Bob's agreement with Carly and Family Man just for the purpose of completing our records when this is signed."
Thus instead of the monthly payments that Mr Taylor had asked for, the payments were to be quarterly. The first payment was in fact made on 28 November 1975. On 26 February 1976 Mr Taylor replied. He acknowledged the first payment and asked for subsequent payments to be made on slightly different dates. He continued:
"With regard to Carlton and Aston recording for an artist not on the Island label, I should like to make you aware of the fact that Bob Marley's agreement with Carlton and Aston has nothing to do with his agreement with Island Records. In fact, Carlton and Aston are free to work with anyone Bob chooses without causing termination of Bob's financial agreement with Island Records."
In between this exchange of correspondence Island Records had written to Sire Records Ltd about the performance by the Barrett brothers and Bob Marley on an album recorded by Martha Valez. The relevant parts of the letter read:
Dear Sirs,
You have informed us that Bob Marley, Carlton Barrett and Aston Barrett (hereinafter called "the Artists") whose recording services are exclusively contracted to Island Records Ltd have performed on an album by your artist Martha Valez entitled ....
......
6. Island Records Ltd shall receive a credit on all album sleeves containing recordings made by the Artists as follows
"appears by courtesy of Island Records Ltd'"
On the album, which was released under the name "Escape From Babylon", the credits, as required by the letter, appeared on the sleeve. Mr Blackwell was asked about this in his evidence. The relevant passage was as follows:
"Q. ... In what if any circumstances did Island Records require artist credits on albums released by other record companies not in the Island Group?
A. You mean if an artist appeared on another label?
Q. Absolutely.
A. We would ask for a credit. We would request a credit.
Q. In what circumstances?
A. If we requested a credit, it would be because the artist was signed to Island Records."
He agreed that, based on the letter, it was a fair inference that in January 1976 Island believed that they had engaged the exclusive recording services of the Barrett brothers. However, a belief to that effect on the part of Island would have been inconsistent with the terms of Mr Levison's letter of 17 December 1975. That letter was clearly written on the basis that control over the label for which the Barrett brothers were able to record lay with Bob Marley rather than with Island. Had Island been entitled contractually to the exclusive recording services of the Barrett brothers, it could have decided for itself which labels they could record for.
The genesis of the Media Aides agreement appears to be a proposal made by Don Taylor which was conveyed to Island Records by Mr Steinberg in a letter of 12 July 1976. This proposed a termination of the 1975 agreement upon the delivery by Bob Marley of sufficient tracks to make four albums. A new agreement would be entered into with Island Records Inc. The other contracting party would be a new British Virgin Islands company, owned by Bob Marley, which would have Bob Marley's exclusive recording services. Media Aides Ltd was that company. By a letter dated 15 December 1976 from Island Ltd to Bob Marley, the 1975 agreement was terminated as from 6August 1975 and it was confirmed that no recordings were delivered under it. A new recording contract in writing bearing the date 6 August 1975 but actually signed, it appears, in late 1976 or early 1977 was made between Island Inc and Media Aides Limited. The term of that contract began on 6 August 1975 and was to last for three years or (if later) until 60 days after delivery of sufficient tracks to make six albums. This period (barring one day) was the same period as that covered by the 1975 agreement. As with the previous agreements, this agreement incorporated standard conditions. Condition 1 defined "the Artist" as Bob Marley. The word "record" was defined as including "all forms of recording (both visual and non visual) now known or which may [hereafter] become known". Condition 2 dealt with the payment of royalties. Condition 2b (xi) said:
"Any royalty due to [Bob Marley] or to a producer or Engineer or to any union or union fund ... or to any third party (other than mechanical royalties .....) in respect of recordings made hereunder shall be paid by [Media Aides] out of the royalty payable to [Media Aides] hereunder ...."
The Media Aides agreement also contained the following relevant conditions:
"5D [Media Aides] undertakes with [Island] to procure that [Bob Marley] will record for [Island] and [Media Aides] will deliver to [Island] the amount of double sided long playing albums set out in the attached letter.....
6A ...[Media Aides] hereby indemnifies [Island Inc] from loss or damage...arising out of any claim by a third party which is inconsistent with any of the warranties representations and undertakings made by Media Aides and/or [Bob Marley] in this agreement..."
11. [Media Aides] hereby licences in perpetuity to [Island] all present and future record and recording copyrights and [Island] shall be entitled to the ....sole and exclusive right in perpetuity ...of production reproduction sale and distribution...by any means whatsoever of all such recordings.....
18. [Media Aides] hereby grants unto [Island] all consents (including the requisite consents pursuant to the provisions of the British Dramatic and Music Performers Protections Acts 1958 to 1972) in order that the Company should have the fullest use of the Artist's service hereunder and the products thereof;
22. Licensor shall pay to the Artist, to the individual producers and to any other persons participating in the production of the Masters any and all royalties which may be payable to them or any of them by reason of the manufacture and sale throughout the world of records embodying Masters recorded hereunder..."
As part of the arrangements Bob Marley signed an "inducement letter". This letter warranted that he had contracted his exclusive services as a recording artist to Media Aides Ltd; and that it would continue to be entitled to his exclusive services for the term of the recording agreement.
Mr Barrett said (and I accept) that he knew nothing about the 1975 agreement or the Media Aides agreement at the time. Neither he nor his brother signed any inducement letter.
I have already mentioned some of the many other agreements entered into by companies associated with Bob Marley. One in particular deserves further mention. On 1 January 1981 Bob Marley Music Ltd BV entered into an administration agreement with Almo Music Corp. The purpose of this agreement was for Almo to administer:
"the musical compositions ... listed or described below, the words and music of which were or shall be written by Bob Marley ... or such other compositions written by other songwriters owned or controlled by [Bob Marley Music Ltd BV]"
Bob Marley Music Ltd BV warranted that:
"the Prior Compositions comprise all of the compositions ... and that the names of the respective composers thereof, ....... are listed on Schedule A annexed hereto..."
Schedule A included the following:
Title and writer |
Publisher |
Belly Full a/k/a/ Them Belly Full (But We Hungry) Legon Cogil/Carlton Barrett |
Tuff Gong Music |
Rebel Music (3 O'Clock Roadblock) Aston Barrett Hugh Peart |
Tuff Gong Music |
Talkin Blues Carlton Barrett/Legon Cogil |
Tuff Gong Music |
Want More Aston Barrett |
Tuff Gong Music |
War Allen Cole/Carlton Barrett |
Tuff Gong Music |
Who the Cap Fit Aston Barrett/ Carlton Barrett |
Tuff Gong Music |
Rita Marley signed the agreement on behalf of Bob Marley Music Ltd and Bob Marley Music Ltd NV. The compositions are those that are in dispute. The attributions of authorship correspond to the Barretts' case.
The Wailers were, on the whole, not interested in business or contracts. Junior Marvin described the general attitude of the band in terms which I accept:
"To my experience, the way Bob Marley and The Wailers were at that time [1977], they were more a spiritual type of band. They were more into the One Love facets of expressing themselves and it was not about Babylon system and Babylon style of making money. So I did not feel comfortable to approach him in a Babylon style fashion. When I say Babylon, I mean like western world, capitalism and stuff like that."
Rita Marley's evidence was that neither the Wailers nor the I Threes received payment direct from Island Records. They were always paid by Bob Marley (via Tuff Gong) whether for work in the studio or work on tour. She said that the Barrett brothers were treated in the same way as everyone else; although, having been in the band for the longest, they received more. Rita Marley said that band members were paid according to the number of tracks they recorded, with double payments for overdubbing. There was no express agreement about that. The understanding was that each band member would get a cheque or cash to reflect their overall contribution. If someone needed a loan or an advance against wages, they would ask Bob. Diane Jobson was responsible for giving out the money. When the band was on tour the arrangement was slightly different. Each band member would get a daily allowance to cover expenses. This would be authorised by Bob Marley, but handled by the tour manager. Bob Marley would arrange for each band member to be paid for stage appearances (but not for rehearsals). None of the musicians were paid direct by Island Records.
Diane Jobson was Bob Marley's personal lawyer from 1974 until his death in 1981. She also accompanied the band on tour, at least in 1978. She said that from about 1978 Bob Marley would split tour income fifty-fifty with the band, once expenses had been covered; but that this did not extend to other income. Her impression, from discussions with Bob Marley, was that he decided on how the band's fifty per cent was to be allocated between them, although there was a weighting for seniority. In her oral evidence she said that the band members "just received the monies". She did not think that the Wailers were aware of the formula that Bob Marley used to split the money: they were just happy to get what was usually a very considerable bonus. She also explained how the Wailers were paid:
"You see, The Wailers were touring extensively. They had shows in between the tours. They were earning money from being paid for the tour. They were being paid monies while on tour. They came home. They were into a recording situation. They were paid for recording. It was not a matter like every six months they were getting money. Their money was coming in on a fairly regular basis from tours, shows and recording sessions."
Mr Barrett's evidence was that he received a few cheques direct from Island Records, but that in the main, he received his money from Bob Marley. He placed this in about 1975 or earlier. Island Records were obliged under the contracts to account for royalties at six monthly intervals. However, the Wailers did not want to wait that long between payments. So at some stage (which must have been in late 1975) the Barrett brothers asked Bob Marley if they could have money at quarterly intervals. Bob Marley paid them quarterly after that. The money came from Bob Marley himself, rather than from Island. In particular, after Don Taylor became the manager, the Barrett brothers did not receive their royalties directly from Island Records. Mr Barrett's evidence on this point was:
"Q. So you asked Bob if you could have money every quarter?
A. It was done, yes.
Q. But you did not ask Island for quarterly payments, did you?
A. Bob did all the business, Miss Jones. Please, Miss Jones, Bob did that. I do the music."
The arrangements for payment were arrangements for the Barrett brothers to receive fixed payments at three monthly intervals, as the contemporaneous correspondence makes clear. They were not royalties at all. Although Mr Barrett described receipt of these payments as "royalty time", he was wrong about the character of the payments. Mr Barrett also said that on three or four occasions between the end of 1974 and the end of the 1970s the mother of one of his children would collect cash from Island (about £2,000 each time) after Mr Barrett had cleared the payment with Island (latterly in the person of Denise Mills). According to Mr Barrett Bob Marley told him that he had set up an off-shore account into which the money was paid and funds were remitted from that account to a bank in Jamaica. Mr Barrett's evidence, consistently with the leitmotiv that ran through his evidence, was that "Bob took care of the business." Following the fifty-fifty split Mr Barrett said that there was no fixed arrangement or practice about how the fifty per cent that Bob Marley did not retain would be split between the band. That depended on the contributions of the individual band members and how much work they had put in. Bob Marley would generally discuss it with him and they would agree who should be paid what. In his oral evidence he said:
"Bob took care of the business in that aspect, and I took care of the music; and whatever he gave to my brother and me and for the rest of the band, everyone was satisfied. We were happy."
His cross-examination continued:
"Q. So after 1975 your understanding was that whatever Bob's arrangements were you were happy with them and you were happy with the money he was giving you, is that right?
A. That is right."
Junior Marvin recalled that when he first began to play with the Wailers in 1977 Carlton Barrett was excited because he had just acquired a BMW paid for by Island Records, who would also ship it to Jamaica. Carlton Barrett told him that the price of the car would come out of his share of his entitlement according to the agreement that he had with Bob Marley.
Mr Blackwell's evidence was that:
"We never paid royalties to Aston Barrett or Carlton Barrett. If they were paid any money at any time, it was on the request of Bob Marley."
He added:
"What happened was that Bob wished to have Aston Barrett and Carlton Barrett permanent members of his band. In order to do that, it was required to give them a regular pay cheque. If I may just say one thing, you know, we are talking about 32 years ago. At that period in time, as I think we have established, the records were not selling very much. Bob Marley now, at this point in time, has sold probably 20 times as many records post his passing than he did before. It would have made more sense, much more sense, for Aston and Carlton to get a regular pay cheque than to be a royalty earner. Now that we are looking at huge sales, it may look differently but, at the time ---"
He had no recollection of a BMW. There is no documentary record of Island Records having paid for a car for Carlton Barrett, although some documentary records do exist for very modest cash payments to some members of the band. Junior Marvin's evidence was that the BMW was paid out of Carlton Barrett's entitlement under an agreement with Bob Marley; not out of an entitlement under an agreement with Island. I find that Island did not pay directly for any car for Carlton Barrett.
Denise Mills is now dead; but she made a statement in earlier litigation in 1989. In that statement she said that Bob Marley always authorised the payment of money to the Wailers, and that she would have him sign a confirmation to that effect. The amount of the payment would then be deducted from royalties due to Bob Marley. The amounts paid to individual Wailers, on Bob Marley's instructions, bore no relationship to the royalties he earned; nor did they amount to fifty per cent of his earnings.
Carlton Barrett's son, Erroll, recalls that when he used to go to Island House, his father had large amounts of cash, many thousands of dollars in $20 bills, out of which he would pay the staff. He cannot, however, say where the cash came from.
In the course of the subsequent proceedings in Jamaica against Bob Marley's estate, which I describe later, J Reid Bingham (who is an American lawyer and was the ancillary administrator of the estate) swore an affidavit in which he said:
"Bob Marley... made payments from time to time and in varying amounts to the various backup musicians who from time to time recorded with him or accompanies him on the tours under the name the Wailers. My investigation indicates that a total of at least 25 different individuals at one time or another during the period 1972 to his death were involved as members of such backup groups....the files in my possession and my investigation do not indicate any evidence whatsoever of any type of "joint venture" or "partnership" arrangements with the individuals who from time to time made up the backup groups... indeed this would be extremely difficult to even accomplish given the fact that from album to album and tour to tour the individuals comprising the backup group changed. All payments made by Bob Marley to the various members from time to time of the backup groups bear no relation either in time of payment or in amount of payment to the royalties Bob Marley or Media Aides received from Island Records during this period."
Mr Reid Bingham supplemented his written evidence via video-link. He said that the conclusion that he formed was based primarily on documents that he examined.
Mr Al Anderson gave evidence substantially to the same effect. He said that when the band was on tour, they were paid weekly. This included the Barrett brothers. He left the band for a couple of years in the late 1970s. During that period, when he was contracted to CBS, he was not paid anything by Bob Marley. He accepted the following summary put to him by Ms Jones:
"Q. Mr. Anderson, what we say in fact happened was that Bob Marley paid all the band members what he considered appropriate when he considered it appropriate. You were paid, in effect, weekly when you were on tour and when you were recording, he would pay people according to their contribution to the recordings. So that somebody who had spent a lot of time and effort on it or perhaps gave him an idea for a song would get more money than somebody who had not done those things. Is that your recollection of what happened?
A. Yes."
In the same Jamaican proceedings Mr Taylor said in an affidavit:
"[I]n the name of Bob Marley, I distributed 50% of the partnership's profits to the members of The Wailers band after taking off all costs and expenses. Such distribution took place from time to time as revenues were collected."
Ms Jobson said that Mr Taylor was careless with the truth; had been dismissed some years earlier for dishonesty and had an "axe to grind" against the estate. She said that this statement in his affidavit was untrue.
In evaluating all this evidence it must not be forgotten that although Island Records were obliged to account for royalties at six monthly intervals, the six monthly accounting would not necessarily result in an actual payment; because any advance that had been paid under the contracts would be deducted from the royalties otherwise due. Mr Blackwell estimated that Bob Marley was not "recouped" (i.e. had not earned royalty in excess of the advances) until some time in 1980. Ms Jobson also said that for the first few years that she worked for Bob Marley, he was not recouped. I accept this evidence.
The most significant evidence is, in my judgment, the contemporaneous exchange of correspondence between Don Taylor and Mr Levison on 25 November and 17 December 1975 (which I have already quoted). Don Taylor's letter is significant in three respects. First, the money to be paid to the Barrett brothers is described as a monthly "retainer". This points away from a conclusion that the Barrett brothers were partners with Bob Marley. It is also consistent with Mr Blackwell's evidence that the Barrett brothers received a regular pay cheque. Second, the retainer is to be paid when they are not on tour. That is indirect corroboration of the Defendants' case that the fifty-fifty split applied only to touring monies, otherwise there would have been no need for the retainer. Third, the retainer was to be deducted from session costs pertaining to a contract between Bob Marley (alone) and Island. Mr Levison's reply is equally significant. The payments were agreed on the basis that they could be terminated at Bob Marley's request (i.e. without reference to the Barretts). In Mr Taylor's subsequent letter to Mr Levison of 26 February 1976 he asserted that any arrangement between Bob Marley and the Barretts was none of Island's concern; and that assertion appears to have been accepted by Island. All this is, in my judgment, powerful evidence in support of the Defendants' case that the Barrett brothers had no contractual relationship with Island.
I bear in mind also that the members of the band were not concerned with the business, which they left to Bob Marley; and were not particularly interested in money. Making music was far more important. I do not consider that any of the members of the band thought that they were entering into binding legal contracts between themselves. That would have been "Babylon style" which was not the band's way of life. As far as they were concerned, they were happy with whatever Bob Marley chose to pay them. In addition throughout the 1970s there were no royalties that were actually paid, because Bob Marley was not yet recouped. All of this, in my judgment, points towards the conclusion that the Defendants' case on payments made during Bob Marley's lifetime is correct; and that he paid the members of the band (including the Barrett brothers) whatever he thought was appropriate.
On 11 May 1981, Bob Marley died intestate. Following Bob Marley's death the Barrett brothers and other Wailers signed a contract on 2 December 1981 with Rita Marley, whereby she, purportedly on behalf of Bob Marley's estate, agreed to pay the Barrett brothers and the other Wailers royalties on sales of the recordings that they had made with Bob Marley. None of the Wailers approached Island seeking any payment. Their dealings were all with the estate. On 17 December 1981 letters of administration to Bob Marley's estate were issued to Royal Bank Trust Company (Jamaica) Ltd, which subsequently changed its name to Mutual Security Merchant Bank and Trust Company Ltd ("Mutual Security"). Rita Marley and George Desnoes were also initially appointed administrators but resigned later. Subsequently, as I have mentioned, J. Reid Bingham was appointed ancillary administrator in New York. The beneficiaries of the estate were Rita Marley, and also Bob Marley's 11 children, most of them infants in 1981.
Since the agreement between Rita Marley and the Wailers pre-dated her appointment as administratrix, it was not binding on the estate (as is common ground). Nevertheless, considerable sums of money were paid under it to the Wailers (including the Barrett brothers). Mr Aston Barrett himself received about $344,000. The total sum paid by Rita Marley to the Wailers collectively between 1981 and 1986 was some $1.2 million. The money ceased to be paid in 1986.
In October 1984 the surviving Wailers and the I Threes toured the USA and Canada. They performed in support of an album entitled "Legend", which was a compilation of previously recorded performances of Bob Marley and the Wailers. It was contemplated that a video of these performances would be released in due course; and a video, also entitled "Legend", was released in 1984.
Since the Intestates' Estates and Property Charges Act of Jamaica contains no express provision for the assets of an intestate's estate to be held upon trust for sale, in October 1987 Mutual Security applied to the Jamaican court for directions as to whether it was its duty to sell the estate's musical rights and, if and so far as necessary, for authority to retain them unsold. On 8 October 1987 Morgan J declared that it was their duty to sell the rights but directed their retention until further order of the court
On 27 April 1988 Mutual Security entered into a conditional agreement to sell certain of the assets of the estate including various music-related assets and rights to Island Logic Inc. Island Logic Inc was a company then in the same group as Island Ltd and Island Inc, having a common ultimate parent (Island International Limited, a Bahamian company). On 5 May 1988 Mutual Security issued an originating summons in Jamaica seeking an order that the conditional agreement be confirmed subject to such modifications (if any) as the court might think fit and as might be agreed and that Mutual Security be at liberty to carry the same into effect. All of the Marley beneficiaries were made parties to the summons; and they objected to the sale. On 30 December 1988 Wolfe J overrode the objections of the Marley beneficiaries and authorised Mutual Security to carry the Conditional Agreement into effect. The Jamaican Court of Appeal dismissed the Marley beneficiaries' appeal and sanctioned the proposed transaction subject to two modifications which, if accepted, would have had the effect of substantially increasing the value of the consideration. The purchaser subsequently agreed to the modifications proposed by the Court of Appeal. The beneficiaries appealed to the Privy Council, which allowed their appeal, and remitted the matter back to the Jamaican courts. A further decision of the Jamaican Court followed on 20 December 1991, and pursuant to that decision a further agreement ("the 1992 Sale Agreement") was entered into on 10 September 1992 between (1) Mutual Security, as administrator of the estate as seller, and (2) Island Logic Ltd and the then adult beneficiaries of the estate as purchasers.
In the meantime on 19 December 1989 Mutual Security assigned to Island Logic Ltd such title as it had to the writer's share, performance royalties and copyright in compositions originally attributed to Aston Barrett and Carlton Barrett.
The 1986 New York action
In about August 1986 it was discovered that Bob Marley's former lawyer, David Steinberg, and his former accountant, Marvin Zolt, had persuaded Rita Marley to sign certain back-dated stock transfer documents which had the effect of diverting assets from the estate. Rita Marley subsequently resigned as an administrator. On 5 December 1986 J. Reid Bingham began an action on behalf of the estate ("the 1986 New York Action") in the United States District Court for the Southern District of New York, seeking recovery of monies misappropriated by Mr Steinberg and Mr Zolt.
In the course of the 1986 New York Action, six of the individuals who had performed in the Wailers, including Aston and (according to the paperwork) Carlton Barrett, applied to intervene. Carlton Barrett had in fact died by the time that the papers were served; but he may well have given instructions before his death. In support of their application the six individuals advanced claims against the defendants to the 1986 New York Action. The basis of the claim was that the six would-be interveners were partners with Bob Marley and were entitled to 50 per cent of the profits and assets of the alleged partnership. Among other relief, the six individuals sought a declaration against the ancillary administrator of the estate in New York that they were equal partners with Bob Marley. The application to intervene in the 1986 New York Action was dismissed on 18 June 1987 and the would-be interveners' appeal against that dismissal was itself dismissed on 14 January 1988.
In the course of the proceedings the Wailers' American lawyer, Leo Kayser III, had asked for copies of a number of documents. These included copies of songwriter agreements or hire agreements on all songs co-written by the Wailers (including those co-written by the Barrett brothers). The request was copied to the lawyer who was representing Carlton Barrett personally.
On 6 January 1989, an action was begun in Jamaica by Aston Barrett and other Wailers (but not Carlton Barrett, who by then had died) against Mutual Security as administrator of the estate.
The Amended Statement of Claim alleged:
"3. From in or about the year 1977 to the date of death of [Bob Marley] the Plaintiffs together with Carlton Barrett formed a partnership and/or joint venture with [Bob Marley] and carried on the partnership business of recording and publishing musical items, performing on concert tours and stage shows, product licensing and merchandising and sharing equally in all profits and losses arising therefrom.
3A. The said partnership or joint venture commenced prior to 1977, in or about the year 1967, when it included [Bob Marley] [Aston Barrett, Alvin Patterson and Earl Lindo] along with Peter McIntosh and Bunny Livingston....Peter Tosh and Bunny Livingston retired from the partnership and [Tyrone Downie] joined the said partnership in or about 1970. [Al Anderson] was admitted to the said partnership in or about 1973 and [Junior Marvin] in or about the year 1977. The said Carlton Barrett left the partnership in the same manner as did [Bob Marley], by way of death in or about 1987.
4. [Bob Marley] was the managing partner for the partnership known as "Bob Marley and the Wailers" and, either personally or through companies owned and controlled by him, negotiated and executed contracts on behalf of the Partnership.
5 to 7. [Dealt with the 1981 agreement between the Wailers and the Estate]
8. The Defendant has refused to recognise the said partnership or the Plaintiffs' entitlement to a 50% share in the said royalties and threatens to sell the Royalty Rights and distribute the proceeds of the sale thereof to the beneficiaries of the estate thereby depriving the Plaintiffs of their share of the partnership profits and will do so [unless] restrained from so doing by this Honourable Court."
In that action, the plaintiffs claimed:
i)a declaration that "during the lifetime of [Bob Marley] the plaintiffs were Partners with [Bob Marley] in the business of recording, producing, retailing and performing certain musical and other works";
ii)an order that the estate account to the plaintiffs for "their 50% share of the royalties or other income received by the Defendant and due to the Plaintiffs as the result of the said Partnership"; and
iii)An injunction restraining the estate from disposing of any of the assets of the estate affected by the plaintiffs' claim.
In its Defence Mutual Security pleaded:
".. the arrangement that [Bob Marley] had with the Plaintiffs and with each of them was then whenever they performed along with the deceased he would pay them such remuneration as their services warranted and which was done for many years without complaint from the Plaintiffs or any of them."
It also counterclaimed for the sums paid to the Wailers under the terms of the 1981 agreement. On 5 April 1989 the plaintiffs applied for a freezing order preventing Mutual Security from disposing of those assets of Bob Marley's estate to which they laid claim. Both Aston Barrett and Junior Marvin swore affidavits in support of the application. Aston Barrett deposed to a partnership formed in about 1967 of which he and his brother were founding members. Otherwise he confirmed the truth of Junior Marvin's affidavit. In his affidavit Junior Marvin said among other things:
"[M]ost of the songs preformed by the partnership were written by Robert Marley but some songs were co-written by members of the Wailers entitled those members to song-writing royalties as well."
By this time Mr Barrett had himself discussed royalties with a Mr Jim Riley, a singer-song writer in New York; and had gone to ASCAP to enquire about royalties. He began to receive royalty payments from ASCAP representing the writer's share (but not the copyright owner's share) and, I understand, continues to receive them.
The freezing order was granted on an interim basis and renewed from time to time; but it was ultimately discharged and replaced by another interim order restraining the estate from disposing of fifty per cent of the proceeds of sale of record royalties claimed by the plaintiffs. This change appears to have been made on the basis that the plaintiffs' claim was not a claim to the assets themselves; but a claim to a share in their proceeds of sale. On 19 February Mr Byles on behalf of the estate swore an affidavit in which he said that it was of the utmost importance to the estate that the plaintiffs' claim be determined quickly, otherwise a considerable portion of the estate would remain unadministered. On 22 March 1990 the court made an order for a speedy trial.
Junior Marvin swore a second affidavit on 26 April 1990 in which he said:
"The [1974 agreement] is exceedingly significant, since it was the agreement which was specifically intended to re-establish a partnership between Bob Marley and those persons comprising the Wailers. Furthermore it was this agreement which established the nature of the relationship between Island Records on the one hand and Bob Marley and the Wailers on the other hand with respect to the course of dealing."
Junior Marvin took the lead among the Wailers for instructing the lawyers. He confirmed in evidence that the action was about royalties past, present and future. As he put it:
"[I]t was natural to expect royalties as long as there were royalties. As long as the records were being sold, and publishing etc., we expected to be paid."
The 1989 New York action
In parallel with the 1989 Jamaican action the six same individuals began an action in the United States District Court Southern District of New York on 9 August 1989. The Defendants were Island Logic, Inc and Island Inc. Island Logic Inc had by then provisionally acquired certain of the assets of the estate from Mutual Security by the conditional agreement. Island Inc was party to the 1975 recording agreement. In the 1989 New York Action it was again alleged that there had been a partnership between Bob Marley and the Wailers. In paragraph 12 of the complaint it was alleged that "Bob Marley was the managing partner for the partnership known as "Bob Marley and the Wailers" and, either personally or through companies owned by him, negotiated for and executed agreements in the capacity of agent for "Bob Marley and the Wailers"." Paragraph 13 alleged that the partnership was dissolved on Bob Marley's death. (In the Jamaican action, it may be noted, the pleading claimed that Carlton Barrett had left the partnership by death in 1987, some six years after Bob Marley's death). In paragraphs 23-27 of the complaint the plaintiffs in that action set out their claim against Island Inc. It was alleged:
i)That pursuant to various record contracts between Island Inc and the Estate of Bob Marley, royalties were generated by partnership assets.
ii)That the plaintiffs had not, since Bob Marley's death, received from the estate or Island Inc an account of those royalties reportable by the estate as the succeeding managing partner of the partnership.
iii)That the estate as managing partner stood as fiduciary to the other partners and in that capacity had an obligation to account which it had failed to comply with, and that Island Inc, with whom the estate had contracted had also failed to make available accounts pursuant to its various contracts with the partnership.
As against Island Inc, the relief claimed was
i)an account from Island Inc of all revenues earned since 1981 by the alleged partnership and a declaration of the rights to and the ownership of the Wailers' interest in the partnership; and
ii)damages "representing the difference in royalties earned and actually paid to the Wailers".
On 2 November 1989 the 1989 New York Action was stayed pending the outcome of the 1989 Jamaican Action.
Some efforts to settle the litigation were made in 1992 and 1993; but they came to nothing. In the course of the 1992 negotiations Mr Gordon Robinson (the Wailers' Jamaican lawyer) asked what sort of deal the estate would offer for a world tour and for advances and royalties on a future album. The estate's lawyer replied in a manner that did not satisfy the Wailers. Mr Robinson expressed their concerns in a letter of 20 May 1992. They were not happy with the neglect of their claim for back royalties. They were prepared to participate in a tour; but were not interested in a one album deal. They were looking for a settlement in the region of $500,000 together with a four album record deal and payment for performances on a world tour. These negotiations petered out. However, during the course of 1992 another video called "Time Will Tell", featuring further performances by Bob Marley and the Wailers that had been recorded during Bob Marley's lifetime, was released.
Mr Barrett said that in the middle of 1993 he met Diane Jobson at 56 Hope Road. She asked if he wanted to see Chris Blackwell, who was in Jamaica, and gave him a lift to Mr Blackwell's house at Strawberry Hill. Mr Barrett said that he and Mr Blackwell discussed the past and the current litigation. According to Mr Barrett, Mr Blackwell said that he could make the litigation go on for twenty years. But he also said that he wanted to put together a "Legend 2" tour to celebrate the 50th anniversary of Bob Marley's birth, put out another "Legend" album of Bob Marley and the Wailers' recordings and pay them royalties on that. Mr Barrett said that he told Mr Blackwell that that was not enough. The case, he said, was all about royalties on all the work that he and Carly had done and was to get what was due to him and Carly's children. Mr Barrett said that he wanted royalties going forward; that the settlement would have to include acknowledgement of the royalties due and there would have to be payment on all future sales as well. Mr Barrett said that Mr Blackwell told him that he had no problem paying royalties to the Barretts and some others, and that he would start the royalties after the release of the new "Legend" album. Mr Barrett gave Diane Jobson his bank account details, and shortly afterwards $10,000 was paid into his account.
Mr Blackwell had no recollection of any of this. However, he insisted that he did not say (and would not have said) that he could keep the litigation going for twenty years. He did, however, accept that money was paid to Aston Barrett; but that, he said, was because Aston Barrett was broke and needed help. Ms Jobson recalled meeting Aston Barrett and taking him to see Chris Blackwell. Her recollection is that the reason why Mr Barrett wanted to see Mr Blackwell was that he was short of money, and needed funds immediately. She recalled that Mr Blackwell did give Mr Barrett some money; but it was not through her, and she did not know how much. She also said that she had never heard Mr Blackwell say that he could keep the litigation going for several years. There was some talk of the future, and how the Wailers could get back to working, but she rejected the suggestion that Mr Blackwell made any promises about royalties. She also categorically denied that Mr Barrett had said anything about the case being about royalties for himself and Carly. So far as a promise of royalties was concerned, Ms Jobson said:
"There was no way Chris could have said that because The Wailers were never in a royalty-receiving situation. Chris could not be promising them royalties. He had no authority to do it. If there [were] any new recordings, then they would probably be entitled to royalties. As for what happened in the past, he could not have been in a position to offer Family Man royalties from Bob's estate."
I prefer the evidence of Mr Blackwell and Ms Jobson. Apart from my general comments about their evidence, there are a number of additional reasons for this conclusion:
i)Carlton Barrett's estate was not a party to the proceedings. The case was not about recovering money for his estate;
ii)Mr Barrett was not the kind of person who negotiated on business matters, as he repeatedly emphasised in his evidence. It is much more plausible that he went to ask for financial help;
iii)Mr Blackwell had no interest in Bob Marley's estate and it is implausible that he would have promised to pay royalties;
iv)It was in the estate's interest to bring the proceedings to a conclusion quickly, so as to be able to make undisputed title to the musical assets. It would not have been in the estate's interest to prolong the litigation. Nor would it have been in the interest of any purchaser of those assets to have done so.
Mr Barrett went on to describe another meeting that took place when Chris Blackwell and Rita Marley met the Wailers outside the courthouse in Kingston. They persuaded the Wailers to have a meeting "but no progress was made and the meeting broke up quickly". Mr Barrett did not date this meeting, but from the general arrangement of his witness statement it appears to have taken place in 1993. Junior Marvin also gave evidence of a meeting, triggered by a meeting on the steps of the courthouse in Kingston, which he placed some time in 1993. He said that they went back to 56 Hope Road. According to him Chris Blackwell said that it would be in everyone's interest to settle the case. He said that the Wailers had a choice: either they could settle by splitting $500,000 or $1 million or he could give the money to his lawyers and keep the litigation going for twenty years. Junior Marvin said that they discussed settlement on the basis of a lump sum for back royalties, a lump sum for a tour, a sum for legal costs and payment of royalties going forward both for work on previous albums and also the forthcoming "Legend 2" album. Al Anderson also gave evidence of a meeting triggered by a meeting on the steps of the courthouse, which he also placed in 1993. The Wailers and Chris Blackwell and Rita Marley went back to 56 Hope Road. Rita Marley said that they should "stop all this now". Chris Blackwell said that he could hold the case up through his lawyers for another twenty years. Al Anderson thought that it was understood by everyone that the Wailers would settle if they got back pay for missing royalties, the tour and tour money and a royalty going forward on all albums as well as on "Legend 2". The reason why the witnesses placed this meeting in 1993 was because Don Taylor had recently sworn an affidavit which changed the balance of the case. Don Taylor in fact swore an affidavit on 18 February 1993.
Again Mr Blackwell had no recollection of such a meeting; and again denied that he said (or would have said) that he could keep the litigation going for twenty years. Ms Jobson also said that she could recall no meeting on the courthouse steps. Mrs Marley, too, had no recollection of a meeting triggered by a meeting on the courthouse steps. But she said that there had been many meetings with the Wailers at Hope Road at which they talked "as a family"; and tried to sort things out.
The first difficulty I have about accepting the account of a meeting on the courthouse steps is that, as Ms Jobson pointed out in her oral evidence, there does not appear, on the evidence, to have been any reason for both sides to have gathered at the courthouse in 1993. There was a procedural hearing in chambers on 18 February 1993. This was the hearing of a summons to strike out the defence for failure to serve a list of documents. But that would not have necessitated the attendance of any clients, let alone all of them. Moreover, that was the very day on which Mr Taylor's affidavit was sworn, and the witnesses said that the meeting took place after that affidavit was sworn. On 11 October 1993 a subpoena was issued summoning Mr Taylor to give evidence; and that was served on him on 21 October 1993. The issue of the subpoena would not have needed personal attendance at court by the clients. There was a date fixing session due on 22 November 1993, but the case was not reached; and very shortly afterwards the parties' lawyers asked the court to fix a trial date in February 1994. So far as the papers reveal there was no other activity involving the court in 1993. Second, a meeting for the purpose of discussing settlement was mooted between the lawyers in June 1993; but was turned down on Mr Blackwell's instructions, on the ground that the two sides "were so far apart that there is little likelihood of our arriving at a settlement." In the face of this it seems unlikely that Mr Blackwell would have had settlement talks with the Wailers direct, let alone that he would in effect have conceded all the Wailers' claims. Third, there is a serious discrepancy between Mr Barrett's statement that the meeting made no progress and broke up quickly, and those of the other Wailers that I have summarised. Fourth, there is no hint of this meeting in the subsequent correspondence between the lawyers. If Mr Blackwell had made the statements which are attributed to him, I would have expected them to have been at least mentioned in subsequent correspondence. In fact there was a complaint made by the Wailers' US lawyers in December 1993 that Mr Blackwell had approached the Wailers, without counsel, and offered them "a side record deal and the payment of a relatively small token amount of cash". This is inconsistent with any understanding on the Wailers' part that they were being offered royalties on past recordings. Moreover, had Mr Blackwell threatened to keep the litigation going for twenty years (contrary to the interests of the estate and any purchaser from the estate) I think that the letter of complaint would have mentioned that too. Fifth, the making of such a threat also seems to me to be inconsistent with the conduct of both sides' lawyers in pressing the court for a trial date in February 1994. Once again, I prefer the evidence of Ms Jobson and Mr Blackwell.
Serious settlement negotiations began in earnest through the lawyers towards the end of 1993 when Mr Michael Hylton, the Jamaican lawyer acting for the estate, sent Mr Robinson, the Jamaican lawyer acting for the Wailers, a draft settlement agreement. This draft proposed a payment to the Wailers of $500,000 apportioned between the six plaintiffs and included a sum of $60,000 for the estate of Carlton Barrett. On the Wailers' side Mr Aston Barrett again said that he did not do the paperwork or the business dealings. He left that to Junior Marvin who drove the litigation and arranged the lawyers. Mr Al Anderson also said that Junior Marvin took charge of dealing with the lawyers. The contemporaneous correspondence certainly suggests that Junior Marvin was active in giving instructions to the Wailers' lawyers. However, he himself said that he was unaware of what was passing between the lawyers; and that he did not receive correspondence copied to him or, if he received it, did not read it. I do not accept this evidence. Before coming to the oral evidence that Mr Barrett and Junior Marvin gave about the settlement, I will set out the relevant parts of the contemporaneous correspondence. It is, in my judgment, the best test of the reliability of the oral evidence.
On 13 January 1994 Mr Hylton wrote to Mr Robinson. He referred to "our many discussions" in relation to the action. He proposed terms of settlement:
i)$500,000 to be paid to the plaintiffs to be shared in such manner as they thought fit; half payable immediately and the remainder after twelve months;
ii)A new compilation album, called "Legend 2" to be launched. The Wailers would be guaranteed involvement in its promotion and would be paid not less than $500,000;
iii)A contribution of $100,000 towards the Wailers' legal costs;
iv)In return the Wailers would release all their claims.
Mr Robinson replied on 24 January 1994. He said that his clients had had discussions with Mr Hylton in New York and thought that the schedule of payments was not acceptable. He said that his instructions were that Mr Hylton had promised a revised proposal which would include accelerated payments and a greater initial payment. Over the next few days the offer was clarified. On 28 January Mr Hylton wrote to say that he had met two of the Wailers in New York and they had said that the payment schedule was not acceptable. He said that his clients would agree to pay $400,000 immediately and a further $200,000 within four months. On 31 January 1994 Mr Robinson wrote to Mr Hylton. He copied his letter to Junior Marvin. He pointed out difficulties with the drafting of the settlement agreement. He continued:
"Our clients have instructed us to accept the offer as set out in yours of January 13, 1974 subject to an improved scheme for payment which, in part, seems to be reflected in your latest letter."
He also pointed out that he did not act for Carlton Barrett's estate. The correspondence continued over drafting matters. However on 10 February 1974 Mr Robinson wrote, in a letter copied to Junior Marvin, to ask whether the estate would reconsider the matter of royalties to be paid from the Legend II album. He continued:
"... we can tell you from now that our clients would not be asking for any major share of any royalty payments to yours. If, cumulatively, your clients could consider, say, 4 points to the Wailers from the album and a similar sort of arrangement from the exploitation of the tour, that would be enough to satisfy the principle that our clients are trying to establish."
Mr Hylton's reply was unequivocal. On 15 February he wrote to say that "our clients cannot agree to conceding points on the album." There the correspondence ended.
On 2 March 1994, an agreement ("the 1994 Settlement Agreement") was made between Island Logic Limited, the Marley adult beneficiaries (Julian Marley having by then joined that class) and the plaintiffs in the 1989 Jamaican Action, including Aston Barrett. The 1994 settlement agreement had the effect of settling the 1989 Jamaican action and the 1989 New York Action. The settlement agreement was in the form that had been agreed between the parties' respective lawyers.
The parties to the settlement agreement were Island Logic Ltd; Rita Marley and eight of Bob Marley's children ("the Adult Beneficiaries") and the six plaintiffs (defined as "the Wailers"). The Wailers, as defined, did not include the estate of Carlton Barrett. The material parts of the 1994 Settlement Agreement provided:
WHEREAS By an Agreement dated the 10th day of September 1992 Island Logic and the Adult Beneficiaries purchased certain assets from the Estate of Robert Nesta Marley, O.M. (hereinafter referred to as "the Assets" and "the Estate" respectively)
AND WHEREAS The Wailers have made certain claims in Suit No. CL B 003 of 1989 and in an action brought in the United States District Court for the Southern District of New York, Civil Action No 89 Civ 5286 (KC) and otherwise in relation to the Assets
AND WHEREAS The parties have agreed to settle the aforesaid and other claims in the manner hereinafter appearing
IT IS HEREBY AGREED AS FOLLOWS: -
1. Island Logic and The Adult Beneficiaries will pay to Messrs Nunes, Scholefield, DeLeon & Co. on behalf of The Wailers the sum of US$500,000.00 payable as hereafter provided.
3. Upon execution of this agreement as aforesaid, Island Logic and The Adult Beneficiaries will pay the further sum of US$100,000.00 towards The Wailers' legal fees.
4. It is agreed and acknowledged that the aforesaid sums are not paid pursuant to any liability on the part of Island Logic or The Adult Beneficiaries or The Estate or any related company or entity. The Wailers acknowledge and agree that they do not have now and have never had any claim against The Assets or The Estate or Island Logic, Inc., Island Logic, Island Records, Inc., Island Records, Limited or the Island Trading Co., Inc.
5. In consideration of the aforesaid payment, The Wailers hereby jointly, severally, unconditionally, irrevocably and absolutely release and discharge Island Logic, The Adult Beneficiaries, Mutual Security Merchant Bank andTrust Company Limited., J. Reid Bingham, The Estate, The Infant Beneficiaries of the Estate, namely, Stephanie Sahi Marley, Makeda Jahnesta Marley, Kymani Ronald Marley and Damian Alexis Robert Nesta Marley, Island Logic, Inc., Island Records, Inc., Island Records Limited., Island Trading Co., Inc., and each of their parents, affiliates, licensors, licensees, predecessors, successors, designees, assigns and all persons claiming through or under them, and each of their officers, directors, representatives, agents, attorneys and employees (collectively, "Releasees"), from and against any and all causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, trespasses, damages, judgments, executions or claims, however denominated, in law or equity, which the Wailers ever had, now or hereafter can, shall or may have against the Releasees.
6. The Wailers agree to cause [the 1989 New York Action] to be removed from the Court's suspense Calendar and further agree to promptly execute and file a Stipulation and Order of Discontinuance with Prejudice of the [1989] New York Action, without costs of disbursements to any party.
7. The Wailers further agree that in the event that any claim in relation to the assets is made on behalf of the estate of Carlton Barrett, they will, if called upon by the person or persons against whom any such claim is made, testify as to the matters set out in paragraph 4 hereof."
The signature of each of the Wailers appears to have been appended in the presence of their Jamaican lawyer, Gordon Robinson. A further agreement was entered into on the same day between the parties under which the plaintiffs in the 1989 Jamaican and New York Actions were to take part in a concert celebrating the 50th anniversary of the birth of Bob Marley; and also in a tour to promote the anticipated release of a compilation album provisionally entitled "Legend II". The terms of the agreement included a "buy out" of the Wailers' rights in their performances on that tour. The tour took place subsequently and the album was in fact released under the title "Natural Mystic". Two of the tracks on that album are "War" and "Who the Cap Fit". On 13 March 1994 Mr Hylton sent Mr Robinson a cheque for $400,000, as required by the agreement. Mr Aston Barrett was paid $80,000 of that sum.
Mr Barrett says that at the time of the 1994 settlement agreement he and the other Wailers were in desperate financial straits. He also says that Chris Blackwell said (again) that if they did not sign the agreement he could keep the litigation going for twenty years. This would have been the third time that Mr Blackwell had said this. Diane Jobson had the settlement agreement ready for them to sign; and cheques for each of them. Al Anderson wanted to show the agreement to his personal US lawyer, but that was refused. The atmosphere got very tense. Junior Marvin and Al Anderson corroborated Mr Barrett's evidence. Junior Marvin said that Rita Marley and Chris Blackwell were speaking individually and secretively to the Wailers. Rita Marley said that "things could get very bad" if they did not sign. He found it intimidating. Al Anderson said that he was threatened by Rita Marley that if he did not sign he would be "done in." He took this threat seriously. He also said that he wanted to show the agreement to his US lawyer but that was refused. All of them also say that Mr Blackwell promised that they would have royalties going forward.
It is important to stress that Mr Barrett does not claim to be entitled to set aside the 1994 settlement agreement. At the outset of the trial I refused Mr Barrett permission to amend his Particulars of Claim to allege that Mr Blackwell had made a collateral contract to pay royalties going forward; principally for the reason that the amendment was made very late and raised issues about the authority of Mr Blackwell to enter into any contract on the part of Island (which he had sold by then) which would, in turn, have required further disclosure and the leading of evidence from other witnesses. The relevance of the allegations of pressure (or duress) applied to the plaintiffs is therefore not obvious, even if the allegations were true.
The allegation that Mr Blackwell promised to pay royalties is, in my judgment, improbable. First, under the terms of the settlement the plaintiffs were to keep the money they had been paid under the invalid agreement made by Rita Marley in 1981. If, on top of that, and on top of the payments to which they were entitled under the settlement agreement and the tour agreement they were to receive royalties going forward, the estate would effectively have conceded the whole of their claim. If that were so, then it is difficult to see how it could have been necessary to threaten the plaintiffs in order to induce them to sign. Second, in his letter of 31 January 1994 Mr Robinson expressly said that he had been given instructions to accept the offer as set out in Mr Hylton's letter of 13 January 1974, which did not mention future royalties. This acceptance was against the background of Mr Hylton having met two of the Wailers in New York at a time when the main stumbling block was the timing of the payments. It is not credible that Mr Blackwell would have offered the Wailers more than the offer which they had already accepted. Third, the question of royalties was expressly raised in correspondence between the initial acceptance of the offer and the signing of the settlement agreement. The estate firmly rejected the claim. Fourth, no claim to royalties was made for the best part of ten years after the settlement agreement was signed.
Mr Michael Hylton is now the Solicitor-General to the Jamaican government. He gave evidence in writing. He said that his opposite number, Gordon Robinson, was an experienced litigator and "extremely competent Counsel". He denied that any threats were made by anyone (including Rita Marley) at any meeting that he attended. Mrs Marley denied having threatened anyone; or having spoken to the Wailers individually at any settlement meeting. Mr Blackwell, Mrs Marley and Ms Jobson all denied that Al Anderson was refused permission to show the agreement to his personal lawyer. Ms Jobson said that the settlement agreement was in fact signed, not at Hope Road, but at Gordon Robinson's offices; and that she was driven there by Aston Barrett in his car. The fact that the settlement agreement appears to record that Mr Robinson witnessed his clients' signatures gives some credence to her account. Although it is possible that Mr Robinson witnessed signatures that his clients had appended to an agreement in his absence, that would have been an unusual course for a lawyer to take, particularly since the agreement itself records that it was signed in his presence. Moreover, if the settlement agreement had been signed at Hope Road, in Mr Robinson's absence, there is no evidence to show how it made its way to Mr Robinson for him to witness the signatures. In addition if the Wailers had been intimidated as they suggest, it is surprising that Mr Robinson did not raise the question. That is all the more surprising, since the Wailers said that their lawyers were angry that they had signed the agreement. There is no trace of any such anger in the contemporaneous documents. The letter of complaint from the Wailers' US lawyers in December 1993 shows that they were not afraid to complain about perceived improper conduct. Mr Robinson (who is still alive and active) did not give evidence.
Mr Jobson also said, to my mind with considerable cogency, that it would have been impossible for her to have had individual cheques ready for the Wailers. The settlement agreement provided for the payment of a lump sum, unapportioned between the individual Wailers, and she would have had no way of knowing who was to get what. Moreover, under the terms of the agreement, the lump sum was to be paid to Mr Robinson's firm and not to the Wailers personally. It was indeed so paid.
Once again, I prefer the evidence of Mr Blackwell, Mrs Marley and Ms Jobson. I reject the allegations that the Wailers were coerced into signing the 1994 settlement agreement.
In accordance with clause 6 of the settlement agreement the 1989 New York action was "dismissed with prejudice" on 14 October 1994.
I have already mentioned the 1992 sale agreement. Under this agreement Island Logic Ltd and the then adult Marley beneficiaries became owners of the interest of Bob Marley's estate interest in a number of assets. These assets included:
i)the rights to receive royalties from Island Ltd and Island Inc under the 1974 and 1975 recording agreements;
ii)The master recordings owned by the estate embodying Bob Marley's performances (with or without others);
iii)the copyrights in the Bob Marley music catalogue (including the disputed compositions); and
iv)the copyrights in the Cayman Catalogue (including Revolution).
Since then the rights to receive record royalties from Island Ltd and Island Inc under the 1974 and Media Aides recording agreements have been further assigned. They are now owned by 56 Hope Road Ltd (the Thirteenth Defendant), a company of which the shareholders are the Marley adult beneficiaries and two other of Bob Marley's children. The seven disputed compositions have been further assigned and are now owned in 75 per cent/25 per cent undivided shares by 56 Hope Road Ltd and Odnil Music Limited, the Twelfth and Thirteenth Defendants. These defendants are purchasers of those assets for value.
In early 2003 the First and Second Defendants applied to strike out the claim and to join the Marley beneficiaries in order to enforce the 1994 settlement agreement. Laddie J heard argument over four days. He allowed the joinder of the additional defendants. However, he refused to strike out the claim (or to give summary judgment in the Defendants' favour): [2003] EWHC 625 (Ch). He expressed his ultimate conclusion on that question as follows:
"The four days this hearing occupied were filled with detailed arguments on the facts and the law. I have a strong suspicion that on many, if not all, issues the defendants are likely to prevail at the trial. This is bolstered by the fact that Mr Barrett admits that his case now is, in material respects, different to cases advanced by him in the past. But, to obtain relief at this stage it is necessary for the defendants to show that the claims of both of the Barretts are fanciful. That must be clear without the need for a mini-trial. It may be said that this plays into the hands of litigants who can engineer complexity. That may be so. At the end of the day such tactics will result in heavy awards of costs and, where appropriate, heavy orders for security. But if, as here, the issues appear to be complex and difficult to unravel even after a prolonged hearing, then the case is not suitable for summary determination. I have come to the conclusion that the issues raised here are far too complex and numerous. It would not be safe to strike out the claims at this stage. In the circumstances, the defendants' applications for summary judgment and to strike out fail."
Logically, as it seems to me, I should first consider whether the Barretts are precluded from bringing any or all of the current claims. This requires a consideration of the effect of the 1994 settlement agreement; and questions of cause of action estoppel and abuse of process. To the extent that pleaded issues survive that challenge, I must then go on to decide them.
Mr Aston Barrett was a party to the 1994 settlement agreement. Mr Carlton Barrett's estate was not. Accordingly, the Defendants do not rely on the 1994 settlement agreement directly against Carlton Barrett's estate. But they do say that it is an abuse of process (and a breach of contract) for Mr Aston Barrett to bring this action on behalf of his brother's estate. It seems to me that five issues arise out of the 1994 settlement agreement:
i)What claims did it expressly compromise?
ii)What, if any, terms are to be implied into the express agreement?
iii)Should the agreement be enforced against Mr Aston Barrett?
iv)If the agreement does not cover the claims that Mr Aston Barrett now seeks to raise, is it an abuse of process for him to seek to raise them?
v)Is it a breach of contract or an abuse of process for Mr Aston Barrett to bring a claim on behalf of his brother's estate?
The leading case on the interpretation of settlement agreements (and much more besides) is BCCI v. Ali [2002] 1 AC 251. I derive the following relevant propositions from that case:
i)There are no special rules for interpreting releases or compromise agreements: Lord Bingham of Cornhill at para 8; Lord Nicholls of Birkenhead at para 26;
ii)There is no question of a document having a legal interpretation as distinct from an equitable interpretation: Lord Nicholls at para 24;
iii)The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made: Lord Nicholls at para 26;
iv)A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention: Lord Bingham at para 9;
v)The wording of a general release and the context in which it was given commonly make plain that the parties intended that the release should not be confined to known claims. On the contrary, part of the object may be that the release should extend to any claims which might later come to light. The parties want to achieve finality. When, therefore, a claim whose existence was not appreciated does come to light, on the face of the general words of the release and consistently with the purpose for which the release was given the release is applicable. The mere fact that the parties were unaware of the particular claim is not a reason for excluding it from the scope of the release. The risk that further claims might later emerge is a risk the person giving the release took upon himself. It is against this very risk that the release is intended to protect the person in whose favour the release is made: Lord Nicholls at para 27;
v