Sex Pistols judgment: Never mind the BMA?

Not for the first time in their history, the Sex Pistols recently hit the headlines. This time, though, they have been making the news because of what they have been saying in court, as opposed to their infamous 1976 interview with the late Bill Grundy on his Today show.

At the heart of the dispute was the refusal of the band’s former singer, John Lydon (formerly professionally known as Johnny Rotten), to consent to the use of two of the band’s songs in a forthcoming television series. There was, however, a much bigger picture. The Judge’s decision regarding Lydon’s refusal to consent has major implications not just for the forthcoming television series but also for the control over the future exploitation of the band’s rights generally.

In this article, commercial litigator and music industry expert Simon Conroy explains the significance of the case and the potential issues of a speedy trial.

The 1998 Band Member Agreement

Following a dispute in 1986, the band was given control of the rights to the Sex Pistols’ materials. Over ten years later, the former band members entered into a band member agreement (“BMA”) to regulate the exploitation of the rights arising out of the band’s activities. The BMA contains a mechanism for decisions to be made by a majority.

Despite the existence of the BMA and the fact that, as the Judge noted in his main judgment, “relationships between band members have always been strained”, until 2005 “the parties were apparently dealing with licensing and other matters without any apparent differences or disagreements”. Indeed, until this dispute arose, the BMA mechanism had never been invoked, with band members apparently being able to – and actually – exercising a veto.

The Television Series

In 2020, the well-known film director Danny Boyle started to direct a TV series based on the 2016 memoir by the band’s former guitarist, Steve Jones, entitled “Lonely Boy: Tales From A Sex Pistol”.

The key focus of the series is Jones’ time in the band and for obvious reasons, the producers wanted to use Sex Pistols songs in the series.

It was, however, only in January 2021 that the Claimants’ manager, Anita Camarata, asked Lydon to consent to the use of the songs in the series. When Lydon found out that Danny Boyle had been engaged in late summer 2020, he was not best pleased, feeling that he (Lydon) had been treated with disrespect by only being consulted so late in the day about a project relating to the band in which he was such a central figure. Lydon therefore refused to give his consent.

High Court Proceedings Are Issued

As a result, on 22 March 2021, Jones and the band’s former drummer, Paul Cook, issued High Court proceedings against Lydon for a declaration by the Court that the BMA provides for there to be majority decisions with no right of any one individual to a veto. At the same time, Jones and Cook issued an application for an immediate declaration in the same terms pending trial. The band’s original bass player, Glen Matlock, and experienced music industry solicitor Peter Button (who acts as the trustee of the estate of Simon Beverley, the band’s former bass player who had been professionally known as Sid Vicious) were also sued by Jones and Cook but they did not participate in the action other than as witnesses.

The issue could not be resolved at the hearing of the application for an immediate declaration, as a result of which the Court ordered that there be a speedy (expedited) trial, taking place on 15 July 2021, less than 4 months after proceedings had been issued.

The Parties’ Awareness and Beliefs

The Judge made important findings about the parties’ awareness and beliefs as to the enforceability of the BMA from time to time.

The Claimants’ (unchallenged) evidence was that none of the relevant individuals (Jones, Cook, Camarata and Button) ever treated the BMA as being or becoming unenforceable or considered that unanimity was required when making decisions in relation to the Sex Pistols’ rights.

The Judge therefore made the very important finding that:

•  at all times since its execution, Camarata was aware of the existence and availability of the BMA.
• Button also had no cause to consider the BMA abandoned at any stage and did not do so.

Estoppel

Against that backdrop, the Judge then had to decide whether there was any basis for Lydon’s argument that the other band members were “estopped” (that is to say, prevented for legal reasons) from denying that unanimity was required when making band decisions.

Lydon relied on a total of 21 examples from 2005 onwards, of what he considered to be the other band members acknowledging that unanimity was required for making band decisions.

After analysing all of the evidence relied on by Lydon, the Judge decided that none of them was sufficient to justify Lydon’s estoppel argument. In coming to that conclusion, the Judge placed considerable emphasis on Camarata’s evidence which was that, despite being able to rely on the BMA, she generally tried to get everyone to agree on band decisions as part of her “consensual approach” to dealing with the various other parties involved.

The Excluded Evidence

Lydon also sought to rely on certain “without prejudice” correspondence relating to negotiations to settle a 2014 dispute between Button and Lydon over how money arising out of a T-Mobile advert showing Sid Vicious performing at a Sex Pistols concert should be divided. The Claimants objected to this on the basis that the correspondence was inadmissible, being protected by legal professional privilege and cannot be relied on if a contested hearing follows.

The negotiations included Button telling Lydon’s lawyer that he (Button) had been “reminded” about the BMA. Lydon’s lawyer responded, challenging the BMA and threatening to make an immediate application to the Court based on Lydon’s estoppel argument.

The threat was not followed through on and that is how things were left until Lydon’s refusal to consent to the use of the songs on the television series brought things to a head.

As such, on the face of it, the communications had been conducted on a “without prejudice” basis and the Judge agreed.

Nevertheless, Lydon argued that it should be allowed into evidence as it fell within one of the exceptions to this rule. In support of that argument, Lydon also argued that the without prejudice correspondence put a very different gloss on the Claimants’ “consensuality” argument. The Judge also rejected this argument.

Comment

As stated above, the Judge found that the Claimants and their representatives had never treated the BMA as being or becoming unenforceable and that they had never considered that unanimity was always required.

When all of the evidence which was before the Court is considered, however, there seems to be no shortage of evidence which suggests otherwise, even if the Judge found that evidence to be insufficient to establish estoppel on the case as presented.

When the excluded evidence is also factored into the equation, there seem to be further grounds for questioning whether the Claimants never considered unanimity was necessary when making decisions in relation to the Sex Pistols’ rights.

The Judge also criticised other aspects of Lydon’s leading counsel’s presentation of the case, including:

• The unclear formulation of Lydon’s case on the various elements required to succeed on Lydon’s estoppel argument.
• The fact that none of the Claimants’ evidence about their awareness and beliefs as to the enforceability of the BMA had been challenged by leading counsel for Lydon.
• The fact that it was never suggested to Camarata how it might be that an important agreement such as the BMA, which had apparently been promoted by her to deal with a particular problem and which retained its significance, might have “lost its effect in her mind” so as to cause her to forget about it or to assume it did not exist.
• The fact that no real basis was suggested to Button as to why or how it was that he forgot about the BMA or decided that it was no longer needed. If that is right, then it does beg the question as to why Button had to be reminded about the BMA in 2014. Plus, Lydon’s leading counsel did put it to Button that he had forgotten about the BMA.
• No plea of acquiescence. By raising this, was the Judge suggesting that Lydon’s leading counsel should have pleaded acquiescence (and if, so, one wonders what the Judge’s finding would have been)?

It remains to be seen whether Lydon will try to appeal against the Judge’s decision.

In recent years, the threshold for obtaining permission to appeal to the Court of Appeal has been raised. Nowadays, the party seeking permission to appeal must show that the appeal has a real prospect of success.

As a general rule, the trial Judge is usually in a much better position to assess the credibility of the witnesses when giving evidence. Because of this, appeal courts are often reluctant to interfere with the trial Judge’s assessment of the witnesses.

It is, however, submitted that the Judge ought to have allowed the without prejudice correspondence to be admitted under the exception relied on by Lydon. It is difficult to see how a fair trial can have taken place when on the one hand the Claimants’ evidence was that they had always taken a consensual approach but on the other hand the without prejudice correspondence does indeed put a rather different gloss on things, as Lydon argued. Even if the Judge had admitted the excluded evidence, though, that might still not have been enough to tip the scales of justice in Lydon’s favour given the Judge’s other findings about the way in which Lydon’s case had been presented.

Perhaps this case also shows the perils of a speedy trial. The legal process is often said to take far too long but in this case it seems to have been a case of more haste, less speed.

If you have any questions on the issues raised or would be interested in reading further details on this case, please contact Simon Conroy.