Adam Clayton, David Evans, Paul Hewson and Laurence Mullan, a firm trading as U2 (plaintiffs/respondents) v Lola Cashman (defendant/appellant)
Equity - Property - Appeal from Circuit Court - Application for injunction directing return of personal memorabilia - Claim that memorabilia had been gifted to defendant - Conflict of evidence
The High Court (Mr Justice Peart); judgment delivered November 15th, 2006.
Where in a case of disputed ownership of goods, the court's task is not to establish the truth, but to determine, as best it can in the face of largely honest yet conflicting evidence, on the balance of probabilities, what happened or did not happen.
The High Court so held in affirming the order of the President of the Circuit Court.
Paul Sreenan, SC, and Eileen Barrington, BL, for the respondents; John Rogers, SC, and Martin Dully, BL, for the appellant.
Mr Justice Peart said that the defendant/appellant (hereinafter referred to as "Ms Cashman") appealed here, by way of re-hearing, against the whole of the judgment of the learned President of the Circuit Court given on July 5th, 2005, following his hearing of the plaintiffs'/respondents' claim made against her as set forth in the Equity Civil Bill issued herein on May 26th, 2004, and his later order for costs made against the appellant on July 20th, 2005. In August, 2001, Ms Cashman placed some items of U2 memorabilia with Christies in London for inclusion in their auction of pop memorabilia which was scheduled to take place on April 30th, 2002. According to the Equity Civil Bill there were 11 such items included in the catalogue, but prior to auction two items were removed from the auction by Ms Cashman, leaving nine items remaining for sale. Those items were listed in the Equity Civil Bill as: a pair of black canvas Converse All Star boots (which belonged to Larry Mullen, the fourth named plaintiff), a pair of black trousers, a pair of silver earrings, a green souvenir sweatshirt, two souvenir mugs, a Christmas decoration, a Stetson hat, two Polaroid photographs, and a photocopy of a hand-written list of U2 songs for use in styling the band.
In their Equity Civil Bill the plaintiffs stated that they were the owners of the disputed items and sought a declaration that they were the owners of these items and that they were entitled to possession of them, an injunction restraining Ms Cashman or her servants or agents from disposing of the disputed items "or any property owned by the plaintiffs or any of them", as well as "an order requiring the delivery up of the disputed items and any further property owned by the plaintiffs or any of them." A defence was delivered by Ms Cashman on December 2nd, 2002, in which she pleaded, inter alia, that the so-called disputed items were "gifted" by the plaintiffs.
Mr Justice Peart said that the evidence had been that when she joined the U2 Joshua Tree tour as their stylist in April, 1987, her opinion of how the band members dressed was not high. She claimed to have been instrumental in designing an image for the band, and has stated that her suggestions were enthusiastically embraced by the band, particularly by Bono. The Joshua Tree tour ended with another concert in Arizona at the end of December, 1987. After that concert, the equipment was packed away into what have been called flight cases so that it could be transported back to Dublin. On her return flight she had 12 cases of luggage, and was charged over $800 for excess baggage. The evidence around this matter was controversial in this case, as the plaintiffs are clearly of the view that much of what she brought home to London in this way was never returned to the band's headquarters in Dublin as should have happened. It appears that in the early weeks of 1988 attempts were made on both sides to renegotiate terms for her continued employment as a stylist, but these foundered, and in April, 1988, her employment ended. Band manager Paul McGuinness stated that she was making excessive demands and also that she had been a very difficult person to work with.
Mr Justice Peart continued to summarise the background of the proceedings and stated that in about August, 2001, Ms Cashman had contact with Christies in London about putting the U2 memorabilia for auction in a forthcoming auction of pop memorabilia on April 30th, 2002. The plaintiffs got wind of the proposed auction at Christies and this was followed by A & L Goodbody, solicitors, writing to Christies on April 22nd, 2002, in which they stated that five of the six items proposed to be auctioned were genuine - they were not the property of Ms Cashman, On July 8th, 2004, proceedings were issued in London in which Ms Cashman sought damages for libel and/or malicious falsehood and/or unlawful interference with the performance of a contract between her and Christies, including special and aggravated damages. She sought also a declaration that she was the owner of the items of memorabilia in question, and other ancillary reliefs.
Messrs. S.J. Berwin, solicitors in London, came on record for the band in these English proceedings and lodged an application in the High Court of Justice there for a declaration that the court had no jurisdiction in respect of the claim and that it was the band's view that this would be more conveniently and less expensively done in the Circuit Court proceedings in Dublin. In due course that application was granted, and a costs order was made against Ms Cashman for a substantial sum.
The Stetson Hat: Mr Justice Peart said that Ms Cashman was of the view that the wearing of a Stetson hat by Bono was her idea as part of the reimaging of the band after her arrival on the tour in April, 1987, but that this was denied by the band, and, as support for that denial, a video was shown to the court in which the band are seen in a hat shop in America purchasing such a hat, and that this video pre-dates her arrival. Fintan Fitzgerald worked in the wardrobe department with Ms Cashman on this tour and he described the Stetson as being a very important piece of stage clothing since they were still filming. It was very important from the continuity point of view. He was not aware of items being gifted to Ms Cashman or other people.
Ms Cashman stated in her evidence that the hat was given to her by Bono and that Bono took off the hat and "plonked it on her head" and that it was no big issue. She said that she asked if she could have the hat and that Bono agreed. In cross-examination, Mr Sreenan asked her when she had stated to anyone for the first time that when the hat was gifted to her it was "plonked" on her head, since she had not given that evidence in the Circuit Court. She replied that she had stated this for the first time at the present hearing.
The 3/4 length trousers: Bono's evidence in relation to these trousers was that he did not give them to Ms Cashman, since they were an important item for continuity reasons related to the on-going filming already referred to. They were, according to him, an important part of the image until the end of 1989. Ms Cashman, on the other hand, has stated in her direct evidence that these trousers were given to her as the tour was nearing an end.
The sweatshirt: She said in her evidence that the sweatshirt was given to her on the same occasion, and in the same circumstances.
The earrings: Bono has stated in his evidence that he never gave Ms Cashman these earrings. He could not recall saying to her, as she alleges, that these earrings would look better on her than on him and that he no longer liked them. It will be recalled that she has stated that there was a photograph of her wearing these ear-rings in a photograph at a dinner party on the tour and in which she is holding one of Edge's (David Evans) children in her arms.
Conclusions: Mr Justice Peart said that this hearing was an appeal by way of re-hearing, and was not an appeal by way of review of the decision of the learned President. The case had much to do with the credibility of witnesses, since the court was presented with evidence about events dating back about 19 years. The court had to make its findings of fact on the basis of the balance of probabilities. Another very important aspect of the case in assessing the balance of probabilities was the overall credibility of witnesses. Ms Cashman had no witness to support or corroborate her evidence and recollections, whereas the plaintiffs had been able to call a number of witnesses in relation to different matters raised by Ms Cashman. The assessment of credibility was a very difficult aspect of judging. But to assist the task, the finder of fact has the benefit of observing the witness in the witness box in addition to hearing the words spoken and reading the relevant documentary evidence and other papers in the case.
In a case such as this, the onus was really on Ms Cashman to satisfy the court that ownership in these goods passed completely to her by the circumstances in which she says the goods came into her possession. This case had not been defended by Ms Cashman on the basis that there was, on account of the length of time that she has been in actual de facto possession of the items for so many years, a rebuttable presumption that they were gifted to her.
Plaintiffs' credibility: Bono was the only band member giving evidence on behalf of the plaintiffs. He has no actual recollection of giving these items to Ms Cashman. The court accepted that he was honest in making that statement. But the court also bore in mind that in the hectic, possibly chaotic and excited moments after a concert has ended, many things might happen that a band member would have no reason to remember after so long.
But the court could not accept simply from the fact that Bono has no recollection of something happened, that it must have therefore happened in the manner described by Ms Cashman. There was ongoing filming and that it was reasonable to conclude that these items had importance in that regard. Peart J. continued to summarise the evidence and said that the court was not satisfied that there was any motive on the plaintiffs' part which results from ill-will or malice.
Ms Cashman and credibility: Ms Cashman needed to discharge the onus of proving her defence to these proceedings, namely that these items were gifted to her by the plaintiffs, and in particular by Bono. Her lack of consistency in her evidence in the court below and in this court was serious and must speak clearly on the question of overall credibility.
The inventory: Mr Justice Peart said that she had said that she returned a large amount of goods to the band's management in Dublin and that she did this through a courier, who, according to her, obtained from a Ms Kelly a signed inventory by way of receipt of these goods. She had not been able to produce this signed inventory, and neither had she given any detail whatsoever as to what effort she made to get information from the courier company. She did not name the company, could not recall to what address she sent the property. This also affected adversely her overall credibility.
Mr Sreenan suggested to her that the reality was that she had taken home some of the band's property after the tour ended, but that, in the many years which have passed since then, she has convinced herself that they were gifts. She denied this. But the court was satisfied that there was probably truth in that suggestion. Mr Sreenan referred also to the fact that she had apparently entered into an arrangement with the publicist, Max Clifford, for the purpose of selling "her story" to a tabloid newspaper for what is called a "five-figure sum". When pressed by Mr Sreenan as to whether she in fact intended to publish more about the band she, somewhat hesitatingly or reluctantly, stated that she did not.
There was evidence of the video showing the band in a hat shop when Stetson hats were being bought, whereas Ms Cashman stated that the idea of such a hat as part of the band's image was her's. There was also the fact that she stated that she introduced Larry Mullen to wearing this type of Converse All Star boots, whereas in the book entitled U2 by U2, there is a picture of him which predates her involvement by some three years or so, and which clearly shows him wearing this type of footwear. This was indicative of a person who is inclined to exaggerate her importance and involvement with the band. The court had already referred to the photograph of Ms Cashman holding a child and in which she is wearing an earring. She stated that it was one of the silver ear-rings at issue in this case, and that this photograph was support for her evidence that they had been given to her. Fintan Fitzgerald had given his evidence of his opinion that the earrings being worn in that photograph are different to those at issue herein. Without the photograph as corroboration, the court was left only with Ms Cashman's evidence that these were given to her as she states. Without corroboration, her evidence in this regard suffered from the same frailty as some of her other evidence which was referred to. It lacked sufficient credibility to reach the level of probability.
Mr Justice Peart stated that to find in favour of Ms Cashman the court would have to be satisfied, in the light of all that evidence and the court's views on credibility, that it was more probable that the account given by Ms Cashman was correct. The court could not be so satisfied. The reason for that was that there are many instances as set forth above in some detail where her evidence lacked credibility, plausibility or probability. The determination was on the balance of probability. For the most part she had convinced herself to the point of honest belief that these goods were given to her, and had developed, sometimes inconsistently as described, a story or recollection in relation to same.
As a matter of probability therefore the court was satisfied that these items remained the property of the plaintiffs, and the court would affirm the order of the learned President of the Circuit Court dated respectively July 5th, 2005.
Solicitors: Philip Lee & Co (Dublin) for the respondents; Delahunt Solicitors (Dublin) for appellant.
Elaine Fahey, barrister