Case No. IP-2020-000140

84.The next series of draft amended pleading relate to the consequences of any breach of a contractual duty to exploit or to act in good faith. Mr Hebden’s position is that:(i)Domino’s release (and, on his case, continuing exploitation) obligations survived the Term of the exclusive recording provisions (see paragraph 21 above);(ii)the remainder of the surviving agreement has now been terminated by Domino’s conduct in ceasing, and making clear that it will not resume, digital exploitation; which,(iii)constitute acts of fundamental breach and/or renunciation.85.Mr Carter submitted that the notice periods and other provisions in clauses 4.3, 4.4 and 14.8 do not apply in the light of Domino’s unequivocal statements that it will not exploit the Masters through digital means in future. Mr Carter also stated that if, contrary to his primary submission, notice was required, Mr Hebden had given the necessary notice in a letter dated 29 November 2021 (as pleaded in draft paragraph 17C) and that it was not possible for Domino now to remedy its breaches, in view of its undertaking that it would not upload the Masters in future. It was therefore clear that the notice period would expire without the breaches having been remedied.86.87.In particular, Mr Carter contends that, notwithstanding the overall complexity of this area of the law, certain propositions are well established, including that termination for repudiatory breach restores to the parties any rights which are not “rights unconditionally acquired”. While acknowledging that he had not been able to identify as at the date of the hearing authorities which squarely matched the situation in the present case, he referred to the review of authorities in