Jessie Bowhill appeared on behalf of the Appellants (Claimants) in an appeal concerning the admissibility of similar fact evidence in a claim for copyright infringement.
The claim concerns the song “Shape of You” written by the first three Claimants, which the Defendants contend infringe the copyright in the song “Oh Why”. This appeal was from the order of Deputy Master Jefferis by which he struck out allegations in the Defendants’ pleading that relied upon similar fact evidence in relation to an earlier song, but refused to strike out allegations made in relation to three other songs.
On appeal the parties agreed that the two-stage enquiry laid out in O’Brien was the appropriate test but Mr Justice Nugee found that there was a potential difference between an application as to whether evidence should be admitted at trial and an application to strike out allegations made in a pleading (which is what the current application concerned). At the pleading stage, the question is whether the matters that are pleaded are capable of being matters which ought to form part of the trial, i.e. whether if the facts pleaded are proved, then those facts would be admissible and could be relevant. The Judge therefore found that Deputy Master Jefferis had been entitled to find that the first limb of the O’Brien test had been satisfied.
The Judge also found that there had not been a flaw or misdirection in Deputy Master Jefferis’ approach to the second limb, either through the use of incorrect numbers or ignoring of relevant factors. As such, the appeal was dismissed.