Jamaica Association of Composers Authors and Publishers Ltd v Klas Sports Radio Ltd
| Jurisdiction | Jamaica |
| Judge | A. Nembhard J |
| Judgment Date | 16 July 2021 |
| Neutral Citation | [2021] JMSC Civ 112 |
| Docket Number | CLAIM NO. 2014 HCV 05341 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2014 HCV 05341
Mr Chad Lawrence instructed by Messrs. Samuda & Johnson for the Claimant
Ms Jody-Ann Gaff and Mr Neco Pagon instructed by Messrs. Vaccianna & Whittingham for the Defendant
Disclosure — Specific disclosure — Application for specific disclosure of audited financial statements — Application made within the hearing of the assessment of damages — Whether the documents to be disclosed are or have been in the defendant's possession or under its control — Whether the documents to be disclosed are directly relevant to one or more matters in issue — Whether an order for specific disclosure is necessary in order to dispose of the claim fairly or to save costs — Whether an order for specific disclosure should be made at this late stage — Civil Procedure Rules, 2002, rules 28.1(2), 28.1(3), 28.1(4), 28.2(1), 28.2(2) 28.6(1), 28.6(2), 28.6(3), 28.6(4), 28.6(5), 28.7(1), 28.7(2), 28.8, 28.9, 28.10, 28.13(1), 28.13(2) and 28.13(3)
This matter concerns an application by the Claimant, Jamaica Association of Composers Authors and Publishers Limited (“JACAP”), for an order for specific disclosure of the Audited Financial Statements of the Defendant, KLAS Sports Radio Limited (“KLAS”), for the period 2015–2020.
The gravamen of JACAP's complaint is that KLAS has failed to comply with its request for disclosure of the latter's Audited Financial Statements for the period 2015–2020 (“the Audited Financial Statements”). JACAP asserts that the Audited Financial Statements are crucial for the computation of the damages owed by KLAS for the period 2015–2020 and are directly relevant to the issues to be determined by the Court.
The application for specific disclosure is made against the background that JACAP is a copyright licensing body and that, pursuant to reciprocal agreements and agency agreements with local and international performance rights societies and musical publishers, it has the sole and/or exclusive rights in Jamaica to broadcast or license the broadcast of and to transmit or authorize the transmission of, the musical works within its repertoire by radio, television or otherwise.
KLAS is a company responsible for the operation of the national radio broadcast station, KLAS-ESPN Sports FM 89.
On or about 1 September 2009, KLAS broadcasted and/or transmitted and/or authorized the transmission and/or retransmission, via its radio programmes, musical works which are the property of JACAP and/ or for which JACAP is the sole and/or exclusive licensee of the public performance rights in Jamaica.
By way of its Claim Form, filed on 6 November 2014, JACAP seeks, inter alia, the following order: -
a. An inquiry as to the damages payable (including statutory damages) for infringement of copyright by the Defendant of the musical works for the period September 1, 2009 to date.
On 19 September 2018, Palmer J entered Judgment in default of Defence in favour of JACAP against KLAS, on the basis that KLAS had failed to file a Defence within the period specified by rule 10.3 (1) of the Civil Procedure Rules, 2002 (“the CPR”). On the basis of that Interlocutory Judgment in Default of Defence, the matter proceeded to a hearing of the Assessment of Damages on 14 and 15 October 2020.
At the commencement of that hearing, Learned Counsel Mr Chad Lawrence, who appears on JACAP's behalf, made an oral application for an order for specific disclosure of the Audited Financial Statements on the following bases: -
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(i) That disclosure of the Audited Financial Statements had been requested of KLAS and that, up to the time of the hearing of the Assessment of Damages, same had not been disclosed;
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(ii) That the Audited Financial Statements are or have been in the control of KLAS;
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(iii) That the Audited Financial Statements are directly relevant to the matters that are in issue in the proceedings; and
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(iv) That the Audited Financial Statements are necessary in order to dispose fairly of the Claim.
The application raises the following core issue for the Court's determination: -
(i) Whether the Court should make an Order for specific disclosure of the Defendant's Audited Financial Statements for the period 2015–2020, at the hearing of the Assessment of Damages.
With respect to that core issue, four (4) sub-issues arise. They are identified as follows: -
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(i) Whether the Audited Financial Statements are or have been in the control of KLAS;
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(ii) Whether the Audited Financial Statements are directly relevant to one or more matters in issue in the proceedings;
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(iii) Whether an order for specific disclosure is necessary in order to dispose fairly of the Claim or to save costs; and
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(iv) Whether an order for specific disclosure should be made at this late stage.
Disclosure is the procedure by which one party to an action must disclose to the other party, by means of a list, the existence of all documents which are or have been in his control and which are directly relevant to one or more of the issues that arise for the court's determination.
The primary purpose of disclosure is that it will often reveal documents that are critical to a party's prospects of success in the litigation; it enables the parties to evaluate more accurately the strengths and weaknesses of their cases; and it enables the narrowing of issues, which encourages settlements, with the resultant saving of time and expense.
An order for specific disclosure requires the party to whom the order is addressed to disclose only those documents or classes of documents specified in the order. 1
In deciding whether to order specific disclosure the court must consider whether such disclosure is necessary in order to dispose of the claim fairly or to save costs, having regard to the likely benefits and costs of the disclosure and whether the party against whom the order is proposed to be made has the financial resources to comply. 2
Part 28 of the CPR governs the disclosure and inspection of documents and endows the court with the power to make an order for specific disclosure on or without an application.
Rule 28.2(1) of the CPR provides that a party has a duty to disclose documents which are or have been in his control. For the purposes of part 28 of the CPR, a party has or has had control of a document if it is or was in the physical possession of that party; that party has or has had a right to possession of it; or that party has or has had a right to inspect or take copies of it. 3
Rule 28.6 of the CPR grants the court the power to make an order for specific disclosure of documents that are directly relevant to one or more matters in issue in the proceedings. The rule provides as follows: -
“ 28.6 (1) An order for specific disclosure is an order that a party must do one or more of the following things -
(a) disclose documents or classes of documents specified in the order; or
(b) carry out a search for documents to the extent stated in the order and disclose any documents located as a result of that search.
(2) An order for specific disclosure may be made on or without an application.
(3) An application for specific disclosure may be made without notice at a case management conference.
(4) An application for specific disclosure may identify documents -
(a) by describing the class to which they belong; or
(b) in any other manner.
(5) An order for specific disclosure may require disclosure only of documents which are directly relevant to one or more matters in issue in the proceedings.
Rule 28.1(4) of the CPR specifically defines the term ‘directly relevant’. It provides that a document is considered to be directly relevant only if the party with control of the document intends to rely on it; it tends to adversely affect that party's case; or it tends to support another party's case.
In the authority of Miguel Gonzales and Suzette Saunders v Leroy Edwards, 4 F. Williams JA, in seeking to expand on the term ‘directly relevant’, stated as follows: -
“By these provisions, a pre-requisite for disclosure is a finding that a document is, not just relevant in the usual layman's sense, but “directly relevant” within the meaning of the rule. The rule uses the phrase “only if” in delimiting the matters to be considered in deciding whether a document satisfies the definition. This means that a finding that a document is directly relevant can only be made in the three circumstances outlined in the rule.”
Further, in The Attorney General of Jamaica v BRL Limited and Village Resorts Limited, 5 McDonald-Bishop JA endorsed the pronouncements of F.
“The fact that the documents “may” be relevant, or merely “relate” to an issue in dispute is not sufficient to render them specifically disclosable within the ambit of the CPR; they must be ‘directly relevant’ as defined by the CPR.”
It is important to note that Part 28 of the CPR does not require the filing of evidence on affidavit. There must, however, be some basis on which the court may exercise its discretion to make an order for specific disclosure. 7 The court may examine the pleadings, the party's statement of facts and issues, the submissions as well as the documents themselves, in order to...
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Diandra Bramwell v Andrene Gibson
...the Applicant relied on the decisions of Jamaica Association of Composers Authors & Publishers (JACAP) vs KLAS Sports Radio Limited [2021] JMSC Civ 112– “Disclosure is the proceedings by which one party to an action must disclose to the other party, by means of a list, the existence of all ......