Ed Sheeran appeared in court last week to give evidence in a copyright trial over claims by two songwriters that his hit ‘"Shape of You" infringed the copyright of their song "Oh Why".
A recent judgment in the case Sheeran & Ors v Chokri & Ors  EWHC 3553 (Ch) has highlighted the importance of parties engaging personally with the disclosure process.
In 2018, the claimants, including Mr Sheeran, issued proceedings against the defendants, Sam Chokri (who performs the song under the name Sami Switch) and Ross O’Donoghue, seeking a declaration that "Shape of You" had not infringed the copyright of Mr Chokri and Mr O’Donoghue’s "Oh Why". Proceedings were launched after the Performing Right Society for Music froze all royalties on "Shape of You" (estimated to be worth £20m at the time) following complaints made by Mr Chokri and Mr O’Donoghue. Shortly after, Mr Chokri and Mr O’Donoghue issued their own claim for copyright infringement, damages and an account of profits.
The recent judgment in the case related to an application made by the defendants about the claimants’ disclosure under the Disclosure Pilot (Practice Direction 51U – “PD51U”). Relying on paragraph 17 of PD51U, Mr Chokri and Mr O’Donoghue argued that the claimants had failed to adequately comply with an order for extended disclosure, and therefore sought an order for further searches of documents to be undertaken.
The application required the court to look at (1) whether the claimants had failed to comply with the order and (2) whether a curative order (as permitted by paragraph 17.1 of PD51U) would be both reasonable and proportionate.
The judge found that it was appropriate to make an order in respect of some, but not all, of the documents requested in the defendants’ draft order. However, it was his significant comments about disclosure obligations which should be noted by lawyers and litigants alike.
In their submissions, Counsel for the claimants had revealed that Mr Sheeran’s manager had undertaken the disclosure exercise on his behalf. "Thinking Out Loud" in his judgment, Mr Justice Meade found this to be “unsatisfactory” (paragraph 29), resulting in “real and significant concerns about the claimants’ disclosure” (paragraph 11).
While Mr Justice Meade acknowledged that Mr Sheeran (and the other claimants) were “very busy people, with recording and song-writing careers and performing careers to pursue”, he emphasised that, as the claimants, they had “initiate[d] these proceedings and it is important that people in their position take responsibility for their own disclosure” (paragraph 30).
Further criticising Mr Sheeran’s (lack of) involvement in the disclosure process, Mr Justice Meade found that “[Sheeran] does not appear to have personally engaged with the disclosure process much (if at all)” (paragraph 16). As a result, he ordered, of his own motion, that Mr Sheeran submit a witness statement, confirming that he had “personally satisfied himself that his disclosure obligations have been met” (paragraph 29).
The case, and particularly the judge’s strong criticisms of Mr Sheeran, are an important reminder that parties must be prepared to engage personally with their disclosure obligations.
Under PD51U, these obligations include:
- Taking reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings;
- Once proceedings have been commenced, disclosing documents which are known to be adverse;
- Complying with any order for disclosure made by the court;
- Undertaking any search for documents in a “responsible and conscientious manner”; and
- Acting honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party.
In the words of Ed Sheeran himself, the correct attitude towards disclosure obligations is clearly: "Put It All On Me".
The trial continues.