Case No. IP-2020-000140

47.Mr Richards contended that the pleading of breach in the draft APOC was incoherent, referring back to the Court’s observations in Quah Su-Ling v Goldman Sachs International on the Court’s ability to refuse to permit a contradictory pleading: “The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or…”. He submitted that the draft amended pleading was so contradictory as to be incoherent on the basis that it made no sense for Mr Hebden to allege, simultaneously, that the digital exploitation of the Masters was in breach of the 2001 Agreement and also that the cessation of such exploitation was also in breach.48.Mr Richards explained that Domino had understood Mr Hebden’s original pleading to allege that digital exploitation of the Masters by download and streaming is in breach of the 2001 Agreement. He referred to paragraph 15 of the original Particulars of Claim, submitting that it specifically pleaded that making available the Masters by these digital means was a breach. He also referred to the pleading in the Reply, which relied on statements in the Defence that Domino had made the Masters available by streaming and downloading. Mr Richards further referred to and relied on Mr Hebden’s previous objections to the exploitation of the Masters by streaming.49.Mr Carter’s response was that the pleading contained no inconsistency and that Mr Richards’ clients had misunderstood it. The original pleading was as to breach through a failure to pay royalties at the appropriate contractual rate for digital exploitation; the subsequent draft pleading was as to breach by failing to use reasonable endeavours to continue to exploit digitally. Mr Carter submitted that the two pleadings are entirely consistent and there is no incoherence as the specific language in original paragraph 15 referred to by Mr Richards formed part of a description of the factual background to the royalty claim rather than a standalone pleading of breach of contract by streaming. Mr Carter also stated that at no point since the signature of the 2001 Agreement had Mr Hebden objected to digital exploitation as such, although he noted that there had been discussions between Domino and Mr Hebden about making the Masters available on Spotify. He drew attention to the evidence on those discussions that had been included in the bundle for the hearing.