Kiely v U2 Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 23 March 2023
• Neutral Citation: [2023] IEHC 153
• Court: High Court
• Docket Number: [2021 2409 P]

Between

Maurice D. Kiely

Plaintiff

and

U2 Limited

Defendant

[2023] IEHC 153

[2021 2409 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 23 ^rd day of March 2023

1 . This is my decision on an application by the plaintiff, Mr. Kiely, in which he seeks an order directing the defendant, U2, to respond to sixteen interrogatories raised by him. I will refer to the defendant as “U2”, notwithstanding the fact that the defendant is a limited liability company (and not a band). The interrogatories as phrased by Mr. Kiely seek an answer from Adam Clayton of U2, rather than an answer from the company or from the band.

2 . This judgment is arranged under the following headings:-

(i) The claim made by Mr. Kiely;

(ii) The interrogatories sought;

(iii) The law:

(iv) The submissions of the parties;

(v) Decision.

The claim made by Mr. Kiely

3 . The claim made by Mr. Kiely centres on the ownership of the song “A Man and a Woman” which appears on the U2 album “How to Dismantle an Atomic Bomb”. Mr. Kiely claims that in 1998 he composed the song while visiting Los Angeles, that he performed the song in Santa Monica during that visit and did so “in the presence of the iconic American model Cindy Crawford”.

4 . Mr. Kiely goes on to plead that the lyrics of the song “address Mrs. Crawford and have a special significance for the plaintiff concerning his feelings for her and their relationship…”. He pleads that, upon returning to Ireland later in 1998, he recorded the composition, sent it to himself by registered mail, and did so in order “to secure his ownership of the copyright”.

5 . Some years later, Mr. Kiely pleads that he became aware that U2 were sourcing material for the album “How to Dismantle an Atomic Bomb”. He offered the song to U2 for use on the album but on certain terms. These terms were that the song be used only on the album but would never be performed live by U2 nor registered as their own composition “in a copyright office”. This arrangement was reached between Mr. Kiely and Adam Clayton, a member of U2, in the kitchen of the parish centre of Donnybrook Church. Importantly, Mr. Kiely pleads in the statement of claim that:-

“A mutual acquaintance was present in Donnybrook as the plaintiff sang and Mr. Clayton recorded. This gentleman will testify as the plaintiff's witness and will confirm the plaintiff's Pleading”.

6 . Mr. Kiely then pleads that he became aware that the agreement made with Adam Clayton was not honoured by U2, that the song was included in another release (apart from the album “How to Dismantle an Atomic Bomb”), and was performed live by two of the members of U2 “at the Bill Clinton Foundation inauguration at the Hollywood Bowl in Los Angeles”. Mr. Kiely also asserts that U2, in his view wrongfully and in breach of agreement, claimed copyright in the song. He therefore seeks a compensatory award, namely damages of €8,000,000.00. He also seeks €4,000,000.00 in punitive damages against the defendant “given the personal net worth of” the individual band members in U2. A full defence, denying all Mr. Kiely's claims, has been delivered on behalf of U2. There is a positive plea, at para. 4 of the defence, to the effect that:-

“The defendant pleads that the words of the Song were composed by Paul Hewson and the music of the Song was composed by the said Paul Hewson, Adam Clayton, David Evans, and Larry Mullen (the four of whom constitute the band known as ‘U2’)”.

7 . It should be noted that an extensive notice for particulars was raised on behalf of the defendant, and full replies provided by Mr. Kiely. I will return to the details of the particulars provided by the plaintiff in considering one of his submissions, namely that replies to interrogatories are required by him in order to establish the fact and detail of his discussion with Mr. Clayton at Donnybrook, notwithstanding that Mr. Kiely's pleaded case is that he himself participated in that conversation.

The interrogatories sought

8 . Mr. Kiely asked the court to order U2 to answer the following interrogatories:-

(1) Is the defendant U2 Ltd., or more specifically, are any of the band members including you yourself concerned, within the parameters of this legal dispute or otherwise, that this registered letter containing a cassette tape will clearly show beyond a shadow of a doubt that I the plaintiff am the composer of the song AMAAW?

(2) Did the band U2 or any member or members of the band U2 compose the song AMAAW?

(3) Have you, Adam Clayton, ever attended a meeting or assembly of any type whatsoever in Donnybrook, Dublin 4 in the Roman Catholic Church for any reason whatsoever other than for a romantic date or to discuss the music business or any other business at which I, the plaintiff, was also present?

(4) When and where did you, Adam Clayton, first hear the song AMAAW?

(5) Did you, Adam Clayton, record myself the plaintiff in the kitchen of the parish centre of the Roman Catholic Church in Donnybrook, Dublin 4, singing a cover of Bruce Cockburn's song “Nicaragua” in which I substituted the words “Cindy Crawford” for “Nicaragua” in the lines “Don't let them stop you now Nicaragua”?

(6) Did you pass this recording, engineered or otherwise, on to the iconic model Cindy Crawford for her listening pleasure?

(7) Did I the plaintiff sing the song AMAAW in the kitchen of the parish centre of the Roman Catholic Church in Donnybrook, Dublin 4 while you recorded?

(8) Did I offer the song AMAAW to U2 for inclusion on your album “How to Dismantle an Atomic Bomb” if the band found it suitable?

(9) Was there an agreement made after you recorded me singing the song AMAAW between myself the plaintiff, and you, Adam Clayton, concerning the conditions for the use of the song by U2?

(10) Was the payment of a sum of money to me by U2 if these conditions were ever breached at any time whatsoever in the future agreed by you as the basis of a valid business contract with perpetual validity between us?

(11) Was anyone else present in the kitchen at the time I sang AMAAW and you, Adam Clayton, recorded?

(12) Are the assertions made in your Defense document that U2 are the composers of the song AMAAW true?

(13) Have you, Adam Clayton, ever come to the attention of the Gardai concerning the importation of narcotics into Ireland?

(14) Before this time, have you, Adam Clayton, ever spent time in prison for drugs related offences or for any other criminal offences?

(15) Have you, Adam Clayton, ever discussed the song AMAAW with the supermodel Cindy Crawford with reference to myself the plaintiff?

(16) If the American supermodel Cindy Crawford from DeKalb in Illinois and currently resident in California, stated publicly that I composed the song AMAAW in her presence in Santa Monica in 1998, and that my assertions concerning your recording in Donnybrook and my offering the song to U2 for inclusion on HTDAAB were true, would you, Adam Clayton, deny her assertions and continue to insist on the veracity of your own assertions?

9 . It will be seen immediately that certain of these interrogatories have nothing whatsoever to do with the case described in the pleadings, even viewing them as broadly as one can. The interrogatories sought at paras. 13 and 14 of the notice are entirely irrelevant. Mr. Kiely has not explained why such wholly inappropriate interrogatories have been sought by him.

10 . In his replying oral submission at the hearing of the motion, Mr. Kiely acknowledged that “I do appreciate that one or two is (sic) a little bit personal….”. The fact that an interrogatory might trespass on personal or confidential matters is not in itself reason to refuse it. However, the interrogatory must bear some relation to the issues raised in the proceedings. The two which I have selected do not even attempt to meet that threshold. I will return to the other specific interrogatories at the conclusion of this judgment.

The law

11 . Both parties delivered written submissions in advance of the hearing of the motion. In the written submissions on behalf of U2 counsel advanced, by reference to authorities, the following propositions:-

(i) The interrogatories were served without leave of the court, and this is required pursuant to O. 31, r. 1 of the Rules of the Superior Courts 1986.

(ii) Leave to deliver interrogatories will only be given if the moving party establishes: —

“(a) The information sought is relevant to the facts in issue in the proceedings;

(b) The interrogatories are necessary either for disposing fairly of the cause or matter or for saving costs; and,

(c) The interrogatories are not vexatious or oppressive and it would not be unfair to require a party to answer them”.

(Delaney & McGrath, in Civil Procedure (4 ^th Ed. 2018) at paras. 12 – 23)

(iii) In considering the criterion set out at (b) above, the applicable rule is set out by Lynch J. in Bula Ltd. v. Tara Mines Ltd. [1995] 1 ILRM 401 at 405:-

“As I understand the law the basic purpose of interrogatories is to avoid injustice where only one party has knowledge and the ability conveniently to prove facts which are important to be established in aid of the opposing party's case, such opposing party not having such knowledge nor the ability to prove the facts either at all or without undue difficulty”.

(iv) “Interrogatories to be allowable must be as to facts in issue or facts reasonably relevant to establish facts in...