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EXPERIENCE HENDRIX V. PPX ENTERPRISES FACTS The legend behind the 1973 and present proceedings is Jimi Hendrix. He died in 1970 aged 27. In action 1967 P No. 3007, PPX sued him and after his death his estate for breach of an agreement made on October 15, 1965. The agreement committed him to "produce and play and/or sing exclusively" for PPX for three years from that date. He was to make his services available at PPX's request with a minimum of 10 days notice to produce no more than 4 titles per session, with a minimum of 3 sessions per year. The trial of action 1967 P No. 3007 had extended over more than 20 days, when on March 6/7, 1973 counsel advised PPX to settle. The settlement reached and incorporated in an order of the court on March 7, 1973 provided as follows: Defendants agree that the plaintiff is entitled to the masters of the titles listed in Sch. A hereto being masters now in the possession of the Plaintiff and all rights of all kinds in respect of those masters and the copyright therein and the performances recorded thereon PROVIDED THAT in respect of any new licence or any extension or variation of any existing licence relating thereto; Defendants further agree that the Plaintiff is entitled to honour, carry out and comply with any existing contract or licence relating to titles not listed in Sch.A full particulars of which and of the contracts and licences relating thereto shall be supplied by Mr Chalpin to the 1st defendant within 10 days hereof. Breach by PPX: PPX was in breach of the settlement agreement in 1995 and 1999 as follows. On December 29, 1995 PPX granted to CBH Records GmbH ("CBH") for Europe a licence in respect of 63 named master recordings. Some 24 of these were from Sch.A, but the remaining 39 were within cl.3(b) (although the licences referred to therein had long since expired). An advance of
$350,000 was payable on royalties, although it is PPX's case that only $250,000 was ever paid before PPX terminated the licence for breach in August 1996. Then, on or about July 1, 1999 PPX granted a three year licence in respect of the same recordings to Nippon Crown Co., Ltd. ("Crown"), providing for an advance against royalties of $35,000. The licence expired by effluxion of time on June 30, 2002. There is presently no indication as to what retail sales these licences led, or what royalties were ever earned by PPX under them. Appellant's claim: At the outset of the trial before Buckley J., Mr Jones representing the appellant made clear that he had no
evidence, and he said that he did not imagine that he could ever possibly get any evidence, to show or quantify any financial loss suffered by the appellant as a result of PPX's breaches. So it was accepted that, if this was the only available measure, then no (or perhaps strictly only a nominal) award of damages could be made. However, Mr Jones obtained leave to amend to introduce claims for (i) damages consisting of such sums as could reasonably have been demanded by the appellant for relaxing the prohibitions contained in cl.3(b) of the settlement agreement or, alternatively, (ii) the entire profit attributable to PPX's exploitation of the non-Sch. A material.
QUESTION This appeal raises as a matter of principle whether the Court can and should order the recovery of any damages or an account of profits in circumstances where the appellant has not proved that it has suffered any financial loss. HOLDING "Exceptional nature" of Blake The exceptional nature of Blake's case lay, first of all, in its context
--- employment in the security and intelligence service, of which secret information was the lifeblood, its disclosure being a criminal offence (p.286G-H). Blake had furthermore committed deliberate and repeated breaches causing untold damage, from which breaches most of the profits indirectly derived in the sense that his notoriety as a spy explained his ability to command the sums for publication which he had done (pp.286G and 287G-H). Thirdly, although the argument that Blake was a fiduciary was not pursued beyond first instance, the contractual undertaking he had given was "closely akin to a fiduciary obligation, where an account of profits is a standard remedy in the event of breach". Injunction and restitutionary damages/account of profits may be combined It was argued before us by Mr Englehart that any order for the payment of damages or a fortiori an account of profits must in a case such as the present be precluded by the judge's grant of an injunction. The argument is that the award in Wrotham Park was only possible because the Court was refusing an injunction, in which connection it was entitled under Lord Cairns's Act to assess damages to compensate the plaintiffs for the continuing invasion of their right in the future. That, it is submitted, is not an order that a common law court could or would have made. Common law courts
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