and at page 537 Lord Denning MR considered Third Party proceedings as independent of the
main action and which may continue even after a settlement between the Plaintiff and the
Defendant. He held:
“I turn now to the point of procedure. It was said that in consequence of the settlement,
the original action is dead, and being dead, there is nothing on which the Third Party
proceedings can bite. I cannot agree with this contention. It is answered by reference to
s 39(1)(b) and (2) of the Supreme Court of Judicature (Consolidation) Act 1925 and RSC
Ord 16, r 4(3)(b). As I read those provisions, once the action itself is settled, the Third
Party proceedings can proceed in just the selfsame way as if they had been started by a
separate action. It is not necessary to bring a new action.”
Furthermore Salmon L.J at 539 is of the view that the proceedings between the Plaintiff and
Defendant do not necessarily prejudice trial of proceedings between the Defendant and Third
Party. He held:
“They will be fully entitled to raise in their defence to Third Party proceedings that the
Defendants were not to blame at all. They can also raise the defence that they, the third
parties, were not to blame.”
In this suit the Third Party was heard on the question of whether the Defendant is liable and the
Plaintiff addressed this issue from that perspective as well. Notwithstanding the question of a
right to indemnity if any is a matter between the Defendant and the Third Party and will abide
the outcome of the question of whether the Defendant is liable. I will start with the matter
between the Plaintiff and the Defendant with the participation of the Third Party. If the first issue
of whether the Plaintiff enjoyed copy right is resolved the rest of the issue would more or less be
determined.
Written Submissions:
The Plaintiff‟s Counsel submitted that this case is about those who seek to benefit from what is
not theirs. He submitted that SMS Media Ltd was brought into this suit by the Defendant as a
third-party and the Plaintiff is unaware of leave having been granted to the Defendant to add a
third-party. Usually leave to issue Third Party notice is issued ex parte on the motion of the
Defendant and before the Registrar. According to the amended plaint filed on 30 July, the
Plaintiff's action is based on four pleaded ring tones even though there are at least three other
Plaintiff‟s ring tones that surfaced during the course of the trial and Counsel proposed to stick to
the ringtones as pleaded.
Whether or not the Plaintiff has any rights in the subject caller tunes/ringtones?
The Plaintiff's Counsel submitted that the primary claim against the Defendant is rooted in the
infringement of his copyright under the Copyright and Neighbouring Rights Act 2006. The
Decision of Hon. Mr. Justice Christopher Madrama
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