The Sex Pistols and the Doctrine of Estoppel
On 23 August 2021, Sir Anthony Mann delivered his judgment in the widely reported case involving former members of the punk band The Sex Pistols.
Sir Anthony Mann’s decision prevents the former band’s frontman, Mr. John Lydon (also known as Johnny Rotten) from stopping the band’s songs being used in a forthcoming television series based on the memoir of one of the band’s former members, Mr. Steve Jones, entitled “Lonely Boy: Tales from a Sex Pistol.”
While media interest in the case concerned Mr. Lydon and his relationship with his former band members, given their impact on pop music and pop culture in the late 1970s and their acquired fame, Sir Anthony Mann’s decision provides succinct guidance on the doctrine of estoppel in England and Wales.
The action was brought by Mr. Jones and his fellow former band member, Mr. Paul Cook, on 22 March 2021. Mr. Jones and Mr. Cook sought orders from the Court to establish and enforce what they said were Mr. Lydon’s obligations pursuant to a Band Members Agreement (BMA).
The BMA was entered into in February 1998 by Mr. Lydon, Mr. Jones, Mr. Cook, Mr. Glen Matlock (formerly of the band) and Mr. Simon Beverley (also a former member of the band and otherwise known as ‘Sid Vicious,’ who died in 1979). The agreement provided a mechanism to enable the band members to agree by way of majority decision how the Sex Pistols’ intellectual property (IP) rights (including publishing and proprietary rights) should be exploited.
The producers of the television series wished to use the Sex Pistols musical material in the series.
Mr. Jones and Mr. Cook were in favour of the proposed television series and proposed exploitation of the Sex Pistols’ IP. Mr. Matlock and Mr. Beverley (through a trustee acting for his artistic estate) supported the claim.
Mr. Lydon resisted the claim. He argued that his former band members were estopped from asserting their claims on the basis that the BMA had never been relied upon in the past and that various band members had always been entitled to veto any particular act of exploitation. Mr. Lydon pointed to over 20 examples of instances which he said supported his case.
The hearing took place in the High Court in London over a period of seven days in July 2021.
In his judgment, Sir Anthony Mann determined that the Claimants were not estopped from enforcing Mr. Lydon’s obligations under the BMA. He concluded that each of the 20 or so examples relied upon by Mr. Lydon did not support any of the assumptions, representations or acquiescence “to get an estoppel case off the ground.”
In arriving at his decision, the judge helpfully set out each of the requirements Mr. Lydon had to establish to succeed in his estoppel position including the elements of:
- estoppel by convention which, in brief, occurs where parties share a common understanding or assumption of a state of affairs which is not necessarily accurate, or where one party acquiesces in the erroneous misunderstanding of the other and it is unjust to go back on the assumption;
- estoppel by representation which happens where one person makes, by words or conduct, a representation of fact to another with the intention of inducing that person to rely upon it and that person does in fact rely on it to his or her detriment; and
- promissory estoppel, which occurs where a person has by words or conduct made a clear and unequivocal promise or assurance to another in connection with their legal relations that is intended to be acted on. That person takes the person at their word and then acts on the promise or assurance. The person giving the promise or assurance cannot then be entitled to revert to their previous legal relations as if no promise or assurance had been made by them.
The judge concluded that in the case of estoppel by convention Mr. Lydon had to demonstrate that he believed that the BMA had no effect and/or that unanimity was required in decisions concerning the Sex Pistols’ IP rights. Furthermore, Mr. Lydon had to demonstrate acquiescence by the other band members of those beliefs – i.e. that the other band members knew that Mr. Lydon thought that the BMA was of no effect or that any member of the band had a right to veto any exploitation of the IP rights.
Mr. Lydon failed to persuade the Court that his former band members were estopped from relying on and giving effect to the majority decision arrived at between them under the BMA concerning the exploitation of the Sex Pistols’ IP rights. Mr. Cook and Mr. Jones were therefore permitted to give such consents as necessary and execute all such licences to give effect to the decisions of the relevant majority.
Sir Anthony Mann’s decision sets out not just an interesting depiction of the relationships between former band members of the Sex Pistols but reemphasizes the difficulties someone wishing to rely on a form of estoppel may have in England and Wales. Mr. Lydon pointed to over 20 examples during the period 2005 to 2018 of instances where decisions were or were not made that he thought supported his case but ultimately the judge disagreed and concluded that Mr. Lydon had offered no evidence at all that persuaded him not to allow the Claimant’s case to succeed.