Mr Justice Lindsay was our man in Havana last year when the high court made legal history by sitting in Cuba to hear evidence in the Buena Vista copyright battle, writes Alex Wade

‘A few pesos and a drink of rum’ would seem a poor return for the musicians of the Buena Vista Social Club. Their eponymous collection of Cuban classics took the world by storm on its release in 1997, propelling its singers and players to world fame. This was cemented by Wim Wenders’ 1999 film, again titled simply ‘Buena Vista Social Club’.


If the majority of people who watched the film will have been touched by the humility and charisma of men such as singer Ibrahim Ferrer, guitarist Compay Segundo and pianist Ruben Gonzalez, many will also have felt joy at the thought that the extraordinary media exposure to which these musicians’ lives became subject would have yielded some rather hefty royalty cheques.


And yet it may not be as simple as that. Legal proceedings between two publishing companies over the ownership of the English copyright in the songs will shortly come to a head, with Mr Justice Lindsay’s judgment expected in June. As well as testing the allegation that Peer International Corporation – which claims that its copyright in the songs has been unlawfully taken over by the Cuban government – paid ‘practically nothing’ for the material, the case also makes legal history in being the first to see a High Court judge sit as a special examiner in Cuba.


Peer International Corporation, Southern Music Publishing (both US companies) and Peermusic (UK) commenced proceedings in the High Court last May, claiming copyright infringement of a number of the Cuban musicians’ songs. The defendants are Termidor Music Publishers and a non-profit company called Editor Musical de Cuba (EMC), though EMC – a company wholly owned by the Cuban government – is playing the active part in the defence. Central London firms Teacher Stern Selby and Sheridans are acting for EMC and Peer, respectively.


EMC’s case is that the original contracts assigning English copyright were ‘unconscionable bargains’ and should be set aside on the grounds of misrepresentation, undue influence and repudiation. EMC thus says that it is trying to salvage royalties owing to the original composers of the Buena Vista songs.


As with many facets of the case, EMC’s claim prompts a curious dissonance. As Nigel Hanson, a solicitor with south-west firm Foot Anstey’s media team, points out: ‘The irony is that state-owned EMC, said to be controlled by the Cuban ministry of the interior, should have tried to assert private property rights in England so as to be entitled to free-market profits. Such may be the Cubans’ hunger for hard currency.’


Mr Hanson explains that Mr Justice Neuberger gave judgment on certain preliminary issues, including the validity or otherwise of assignments between the composers and Peer, and on the efficacy of Cuba’s Law 860, which purportedly transferred title to the English copyright in the songs to Peer. These issues were decided in favour of Peer at first instance before going to the Court of Appeal. ‘The Court of Appeal then decided, in July 2003, that the English court will not give extra-territorial effect in this country to Law 860, the Cuban legislation that purported to expropriate the copyright assigned to Peer in the 1930s and 1940s,’ says Mr Hanson. ‘Having lost the international private law argument regarding the expropriation of property rights by decree, EMC is pinning its hopes on contract law, and remedies such as misrepresentation and undue influence.’


Hence the importance of the evidence of a number of elderly and infirm witnesses, some of whom are heirs to the deceased original composers. Stephen King, a partner in the dispute resolution team at Payne Hicks Beach, explains how the hearing in Cuba came about. ‘Evidence was to have been provided from Cuba by video link but technology conspired against the parties, so a video link proved to be impracticable. Neither side was willing to accept the truth of the witness statements lodged by the other and both wished to have the opportunity to cross-examine witnesses. However, it was not practical – because their age or health and, indeed, the cost – to fly them to London. EMC therefore suggested that the court should hear evidence from the Cuban witnesses in Cuba.’


This led to another complex legal argument. Peer agreed that there were precedents in which a High Court judge had heard evidence outside England and Wales, but insisted it was only possible when both parties consented to such a course of action. Here, said Peer, its consent was lacking, and so, relying on section 71 of the Supreme Court Act 1981, the High Court was restricted to sitting in England or Wales.


It was at this point that Mr Justice Lindsay formulated what Mr King describes as ‘an ingenious solution to the breakdown of technology’. Step forward the special examiner. Mr Justice Lindsay dispensed with the section 71 argument as being relevant solely to sittings of the High Court, and, says Mr King, ‘formed the view that under rule 34.13(4) of the Civil Procedure Rules it would be possible for evidence to be heard from Cuban witnesses in Cuba by a special examiner’. The agreement of the Cuban government was, nevertheless, still required, but EMC stated that this would be forthcoming.


Not only did Mr Justice Lindsay find a solution to the impasse, he also found himself on a plane to Havana. As he said in his judgment on these issues in May last year: ‘It is expedient in the course of justice firstly that there should be examinations by a special examiner in Cuba and, secondly, as the full benefit of someone seeing and hearing the witnesses give evidence can be obtained only if the special examiner is also the judge hearing the action, that I should be that special examiner.’


And so, last September, one of the High Court’s most senior judges found himself hearing evidence in Villa Lita – a grand neo-classical villa complete with marble floors – in Havana’s Vedado district. The arrival of a troupe of English solicitors, barristers and a judge in the tropical heat of Cuba prompted wry asides from some of their brethren, but Mr Justice Lindsay’s methodology is applauded by Caroline Kean, a media partner with Cheltenham-based media firm Wiggin: ‘I think Mr Justice Lindsay’s original judgment was right, and I would be surprised if it was overturned. In today’s world, the courts and judges should be prepared to operate flexibly if they are to ensure that justice is to be given the best chance to be done and seen to be done.


‘Mr Justice Lindsay has not tried to assume a jurisdiction to himself, nor to preempt any jurisdiction of the Cuban authorities, but by appointing himself special examiner has, in a very practical way, given elderly, blind and old witnesses the opportunity to be heard in circumstances most conducive to their giving credible evidence that can be tested appropriately.’


The denouement of this saga remains to be seen, but it is certain to have an impact on the music industry. As Mr Hanson puts it: ‘With world music continuing to grow in popularity, the case will clearly have ramifications for the music industry, particularly companies looking to sign up musicians in developing countries where there may be a perceived imbalance in the bargaining position of the parties.’


There may yet, then, be a need for a special examiner in another tropical country, but barristers uneasy in the heat can take comfort in what could be another new precedent: in Havana, Mr Justice Lindsay allowed them to abandon their wigs and gowns.


Alex Wade is a freelance journalist