Case No. IP-2021-000010

1.This is an application to strike out certain allegations in the Defence and Counterclaim. They are that alleged written agreements relied on in the Particulars of Claim are forgeries. 2.3.The claim to ownership is made by reason of a chain of nine alleged written assignments and a letter said to have been written by Mr Marley, thought to have been written in 1973. The assignments are on their face dated 1968, 1972, 1973, 1975, 1982, 1995, 1996, 2008 and 2020. Copies of the alleged agreements are annexed to the Particulars of Claim.4.The First and Third Defendants are music publishers. The Second Defendant is a corporate vehicle used to hold assets used in business publishing and the Fourth Defendant is a company jointly owned by Mr Marley’s widow, Rita, and nine of Mr Marley’s heirs.5.6.7.All the entities in the chain of title from 1975, beginning with the alleged assignment in that year from Cayman Music Inc to Copyright Service Bureau Limited, were associated with an individual called Danny Sims. Mr Sims was a businessman involved in the commercialisation of Afro-Caribbean music from the early 1960s. It seems he worked with Mr Marley until 1976, after which they went their separate ways.8.9.Before stating the grounds on which the defendants rely to support their allegation of forgery, I need to say more about the background facts and the way that Cayman puts its case.10.11.12.Cayman say that the 1975 to 1996 assignments came to light in 2014 when a floppy disk was found on which they were stored. Normally it would have been possible to check the metadata on the disk, which would have assisted in authenticating, at the least, the dates of the documents. However, Cayman says that the disk was destroyed in a flood, along with the computers on which it was used. 13.Before the flood, Cayman say, the assignments were printed in about 2014. This is said to have been done by Ben Scholfield, the sole director and shareholder of Cayman. Mr Scholfield did not copy the files as such. In other words, the computer programs were not copied. Instead, what he did was print hard copies of the agreements. He then scanned the hard copies and sent the scanned images to Cayman’s solicitors. The consequence is that no original metadata has been preserved. There is nothing to prove that the assignments predate 2014.14.The defendants infer forgery broadly for the following reasons. First, they say the assignments relied on only emerged after the finding of the High Court that Cayman could not rely on the 1992 assignment as part of its chain of title.15.Secondly, they say that by then Mr Sims had died (he died in 2012), so he could not give evidence about the assignments in the current claim.16.Thirdly, there are no original hard copies or electronic copies that the defendants can inspect for the reasons I have just given.17.Fourthly, the defendants say that the schedule to the 1975 assignment lists twelve compositions which did not exist in 1975.18.Fifthly, the defendants say that the 1975 assignment lists a work called “Iron Lion Zion”, which Mr Sims is unlikely to have known about at that time because it was only discovered among tape recordings, stored I think by Mr Marley’s widow at her house, and only discovered in 1992.19.Sixthly, the defendants say that in 2008 Mr Sims described the works he assigned in 1975 as having been non-exploited titles. However, the defendants say, some of the 83 compositions in issue had been commercially released by then. The defendants rely on further detailed matters which they say are inconsistent with Mr Sims having assigned the 83 compositions in 1975.20.21.22.Cayman argues that the particulars of the alleged forgery pleaded by the defendants are inadequate and will prevent a fair hearing of the claim. Cayman makes two specific points. They say, first, that the defendants have not identified which element of each of the relevant assignments have been falsified. Secondly, they say that the persons responsible for the falsification of the documents has not been identified.23.Cayman served a Part 18 request which, they say, elicited little. Cayman concludes that the defendants are deliberately keeping their powder dry and are not revealing their true case until trial.24.I do not fully understand Cayman’s complaint regarding which elements of the relevant assignments are said by the defendants to have been falsified. The defendants’ pleaded case is that these documents were created after the dates of the assignments they purport to record and, therefore, the purported assignments recorded on the face of the documents must be false. In that sense, the defendants say all of these documents are forgeries.25.I am not sure what more the defendants could say about the case they are advancing and I have no view at all as to whether the allegation of forgery is true. But it seems to me that the allegation is clear enough. Moreover, the allegation is not made out of thin air. I earlier summarised the pleaded reasons given by the defendants in support of their contention that the documents had been forged, in particular what they regard as the suspicious circumstances of the floppy disk and the manner in which the assignments were copied and then sent to Cayman’s solicitors. I take the view that those reasons raise a sufficiently arguable case that it should go to trial.26.I do not think there is much either in Cayman’s second objection, that the persons responsible for the forgeries have not been identified. It would sometimes, perhaps often, be the case that a party claiming that documents have been forged is unable to identify the person responsible before trial and possibly not even then. 27.The defendants say they have done their best by pointing their finger at Mr Sims:“Mr Sims, an individual, or individuals acting on Mr Sim’s instructions, and/or one or more individuals associated with or acting on the instructions of BSI or the claimant.”28.In the defendant’s skeleton argument for this hearing they have spelt out a cast list of likely persons, namely, Mr Sims, Ben Scholfield and Brian and Helen Scholfield, who are and were officers of BSI. Again, I am not sure what more the defendants could say at this stage.29.I was referred to a judgment of Arnold LJ in Sofer v Swiss Independent Trustees SA [2020] EWCA Civ 699. My attention was directed to paragraph 32. Arnold LJ had referred to an unreported judgment of Peter Gibson LJ in Rigby v Decorating Den Systems Ltd and continued:“[32] Whether or not it is technically binding, I see no reason to differ from Peter Gibson LJ’s statement of principle. I do not doubt that, where an allegation of dishonesty is made against a body corporate, it is necessary to plead the relevant state of knowledge of that body at the relevant time. I do not accept, however, that a mere failure to identify at the outset the directors, officers or employees who had that knowledge means that such an allegation is liable to be struck out without further ado. Clearly such particulars should be given as soon as is feasible, and there may be situations in which the claimant’s unwillingness or inability to give such particulars when requested to do so justifies striking out; but that is another matter.”30.Miss Reid, who appears for Cayman, emphasised the word “inability” in the final sentence of paragraph 32. She submitted that if the party pleading corporate dishonesty is unable to identify individuals with relevant knowledge, it is appropriate to strike out the allegation of dishonesty.31.I do not accept that this is what Lord Justice Arnold meant. In particular, where there is a pleaded allegation of forgery, I do not believe that an inability on the part of the party raising the allegation to identify the individuals responsible for the forgery means necessarily that the allegation must be struck out. As I have said earlier, it may be the case that it is not possible to identify the particular individuals concerned. Plausibly, that is the case here.32.For the forgoing reasons, I decline to strike out the allegations of forgery.