Case No. IP-2020-000140

97.98.As to the objections to the alternative draft pleading relying on clauses 4.3 and 4.4 as giving rise to a right for Mr Hebden to acquire the rights or to require them to be licensed to a third party, these were dealt with only briefly in written and oral submissions by Counsel. Mr Richards’ points were that, as Mr Hebden no longer considered himself to be bound by the agreement, he could not take any benefit under it, that clauses 4.3 and 4.4 related only to initial release; and that they did not survive the expiry of the term.99.Mr Richards’ second and third objection were both predicated on Mr Richards’ submissions on those issues ultimately proving correct. I do not consider it to be clear that that will be the case: my initial view is that at trial it may be concluded that a number of elements of the 2001 Agreement have not expired and that the correct construction of Term is closer to that contended for by Mr Hebden. Further, the meaning of ‘release’ is core to the issues between the party, and I have already concluded that the pleadings on that issue should go to trial. Given that position, I do not consider that objections based on Mr Hebden’s arguable equivocation as to the status of the contract are sufficient to exercise my discretion to refuse permission for this aspect of the draft amended pleadings.100.Mr Hebden’s proposed case on restraint of trade would arise in the event that he is wrong about the construction of the contract and that Domino is right. Mr Carter submitted that, in those circumstances, Domino could have fulfilled its contractual obligations towards Mr Hebden’s Masters with minimal or no effort for a limited period never subsequently exploiting them and this would permit the ‘sterilisation’ of a substantial portion of Mr Hebden’s output under the name Four Tet by which he is known to fans. An agreement permitting such a sterilisation is said to be an agreement in restraint of trade and Mr Carter states that this is clear from Domino’s withdrawal of the Masters from digital exploitation, and its subsequent undertakings precluding future digital exploitation of the Masters. The sterilisation effect is said to be particularly clear where those albums already have a significant fan base.101.Mr Carter further submitted that ‘sterilisation’ is not a necessary prerequisite for a finding of restraint of trade as numerous other authorities exist where a unilateral right to decide whether to exploit copyrights has been held to amount to restraint of trade. He referred in particular to Schroeder:“I would dismiss this appeal.” [p. 1315A]102.As to the consequences of a finding that a recording agreement is in restraint of trade, Mr Carter argues that the question as to whether the 2001 Agreement is void or voidable is far from clear. He relies on a passage from Copinger (28-367) which first states that “it may be that such an agreement is better described as unenforceable” and then goes on to comment that in consequence “.” In the light of that passage, Mr Carter submitted that the issue is therefore manifestly not suitable for summary determination. Mr Carter submitted that the case relied on by Mr Richards as authority that the proposition was unarguable did not bear the weight that Mr Richards sought to place upon it as the point of principle had in fact been conceded by Counsel and was not argued before the Court.103.Mr Richards submitted that Mr Hebden’s restraint of trade case has at least two fatal flaws, meaning that it is wholly fanciful and could not lead to a successful outcome for Mr Hebden.104.First, the 2001 Agreement does not sterilise Mr Hebden’s output because:•it imposed obligations on Domino to release the Masters;•during the Term, the 2001 Agreement restricted Mr Hebden’s activities only as a recording artist under the name “Four Tet” and his own legal name but left him free to carry on creating and recording music under any other name;•following the expiry of the Term, Mr Hebden was (and remains) free to exploit his output subject only to certain time limited rerecording restrictions;••notwithstanding the alleged sterilising effect of the contract today given the growth of digital means of exploitation, whether or not a contract is in restraint of trade is to be assessed as at the date of its conclusion.105.Secondly, proving that a contract is in unreasonable restraint of trade does not lead to rescission but has the effect that “the agreement so far as unperformed is unenforceable” (Schroeder [p. 1315A] per Lord Reid). Mr Richards submitted that this was unarguable, having subsequently been applied by all three judges in the Court of Appeal in