High Court: Man fails in application for to answer interrogatories in claim alleging that he wrote U2 song

About this case:

• Citation:
  [2023] IEHC 153
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Brian O'Moore

Delivering judgment in the case, Mr Justice Brian O’Moore noted that the application could be dismissed on the basis that the plaintiff had served the interrogatories without the leave of the court. However, the court went on to consider the substance of the interrogatories and held that it was not appropriate to direct a response to any of them, having regard to the established case law.

Background

The plaintiff, Mr Maurice D. Kiely, issued proceedings against U2 Limited, which is the corporate entity for the band, U2. Mr Kiely claimed that he composed the song A Man And A Woman during a visit to Los Angeles in 1998. He also claimed that he performed the song for Cindy Crawford and, accordingly, the lyrics “address Mrs Crawford and have a special significance for the plaintiff concerning his feelings for her and their relationship…”

The plaintiff claimed that he recorded the song and sent it to himself by registered mail to ensure his ownership of the copyright. Subsequently, Mr Kiely claimed that he became aware that U2 were seeking material for their album How to Dismantle an Atomic Bomb and claimed that he offered the song to the band on certain terms.

It was said that the song could only be used on the album and could never be performed live by the band. It was also said that U2 could not register the song as if they had the copyright.

Mr Kiely claimed that U2 agreed to this. It was said that Mr Kiely and Mr Adam Clayton agreed to the terms in the kitchen of the parish centre in Donnybrook Church. It was said that “a mutual acquaintance” witnessed the conversation and this person would testify for the plaintiff.

Subsequently, it was said that the agreement was not honoured by U2, with the song appearing on another album and being performed live. The plaintiff claimed damages in the sum of €8 million.

U2 provided a full defence which included the positive plea that the band composed the song. An extensive notice for particulars was raised and Mr Kiely provided full replies. Later, Mr Kiely sought for U2 to answer 16 interrogatories in respect of the case.

The interrogatories sought answers to various matters including inter alia whether the band accepted that a cassette tape would show he was the composer of the song, whether the band composed the song, whether Mr Clayton ever attended the church in Donnybrook to meet with the plaintiff and whether Mr Clayton had recorded the plaintiff singing various songs in the kitchen of the Donnybrook parish centre.

Further, the plaintiff asked whether there was any agreement between the parties regarding the song, whether anyone else was present while the alleged agreement was made and whether the assertions in the defence were true. Finally, the plaintiff also asked whether Mr Clayton had ever imported narcotics into Ireland or been in prison for drug offences.

High Court

Mr Justice O’Moore began by noting that there was no dispute as to the relevant legal principles in the case. First, it was noted that the interrogatories were served without the leave of the court which was required pursuant to Order 31 Rule 1 RSC.

Further, the court outlined that interrogatories would only be ordered where only one party had knowledge of matters and could conveniently prove facts which were important to aid the opposing party’s case. Interrogatories must only be used to establish facts in issue and interrogatories which sought mere evidence or opinions were not permissible (see Bula Ltd. v. Tara Mines Ltd. [1995] 1 ILRM 401).

Additionally, the onus was on the applicant to establish in evidence that each interrogatory was appropriate (see Secansky v. Commissioner of An Garda Siochana [2021] IEHC 731.

The court noted that Mr Kiely had submitted that his agreement with Mr Clayton was in the nature of a trust, stating that a “business contract and a trust are quite equal”. The court held that the plaintiff was attempting to “recharacterize his case in order to address the submission on behalf of U2 that leave of the court is sought in respect of interrogatories unless either fraud or breach of trust is pleaded”.

While the court was able to determine the application on the basis that the plaintiff had not obtained the leave of the court to deliver the interrogatories, the court held that it would be a better use of court time to consider the interrogatories on their merits. In so ruling, the court held that the claim might have qualified for admission to the Commercial Court, where interrogatories could be delivered without seeking leave.

In considering the individual interrogatories, the court noted that the questions relating to Mr Clayton’s history with narcotics were “entirely irrelevant” and there was no explanation of why such interrogatories were sought.

Indeed, other interrogatories were also deemed irrelevant or were seeking evidence of the defendant’s position. For example, the recording of songs other than A Man And A Woman had nothing to do with the pleaded case, the court said. 

One interrogatory sought the identification of a witness to the supposed agreement between the plaintiff and Mr Clayton. This offended the decision in Mercantile Credit Co. of Ireland v. Heelan [1999] 2 IR 105, the court said. However, even if this were not the case, Mr Kiely had pleaded the identity of the witness in his replies to particulars.

Further, the court considered an interrogatory which asked, if Cindy Crawford stated publicly that Mr Kiely composed the song, would Mr Clayton deny her assertions. This asked Mr Clayton to speculate on a hypothetical scenario which was not appropriate for interrogatories.

Finally, the court considered that the balance of the interrogatories sought evidence from U2. The plaintiff claimed that he needed the interrogatories in case he was mistaken in his memory of events. He claimed that memories were not proof or evidence of a matter occurring. The judge said this “metaphysical approach” to memory and evidence did not justify a departure from the Bula decision.

Conclusion

The application seeking answers to interrogatories was refused.

Kiely v. U2 Limited [2023] IEHC 153