Breach of contract – intellectual property – remedies – recording agreement- account of profits – notional licence fee.
The Defendant had been granting licences to exploit master recordings containing works featuring Jimi Hendrix, in breach of a 1973 agreement settling earlier litigation. The Claimant had no evidence to show or quantify any financial losses suffered as a result of the breaches.
Was the Claimant entitled in principle to an account of profit or more than nominal damages in respect of D’s breaches?
Relying on Attorney General v Blake [2001] AC 268 the remedy of account of profits was available for breach of contract but in the circumstances of this case a full account was not appropriate but the Defendant should make a reasonable payment for its uses of master recordings in breach of the settlement agreement, assessed as a notional licence fee which C might reasonably have demanded to permit the breaches complained of.
The case is notable in that it begins the task of “hammering out on the anvil of decided cases” (Lord Steyn) the consequences of the principles outlined in Blake (and for its careful analyis of that case) in order to fashion a fair remedy for the Claimant.