Bass guitarist Adam Clayton should not be ordered to answer “inappropriate” questions put to U2 Ltd by a Dublin musician who alleges he wrote one of the songs on the band’s 2004 album.
Mr Justice Brian O’Moore on Friday refused to order U2 Ltd to answer on oath pre-trial questions, known as interrogatories, that Maurice Kiely wanted answered as part of his claim seeking €12 million damages.
Mr Kiely is suing U2 Ltd, a limited liability company, alleging the song A Man and A Woman was written by him in 1998 and unlawfully included on U2’s album How to Dismantle an Atomic Bomb.
Dublin-registered U2 Ltd denies all of his claims. It says Bono, otherwise known as Paul Hewson, wrote the lyrics and all four band members composed the music.
In his ruling, Mr Justice O’Moore set out how Mr Kiely says he performed the song in Santa Monica in the presence of American model Cindy Crawford.
Mr Kiely pleads that the lyrics of the song address Ms Crawford and concern his “feelings for her and their relationship”, said the judge.
Mr Kiely alleges U2 was short of material for its 2004 album and he claims he entered into an oral agreement with Mr Clayton, U2’s bass guitarist, in the parish centre of Donnybrook Church allowing use of the song on the album on certain terms.
Mr Justice O’Moore said the terms, as alleged by Mr Kiely, were that the song would only be used on the album and would never be performed live by U2 or registered as their own composition.
A “mutual acquaintance” present in Donnybrook will testify to confirm this, Mr Kiely claims.
Mr Kiely wanted the court to order U2 Ltd, and specifically Mr Clayton, to answer interrogatories including one asking whether the band members are “concerned” that an alleged 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”.
He also asked: “When and where did you, Adam Clayton, first hear the song?”
There was another question asking if Mr Clayton recorded Mr Kiely in Donnybrook singing a cover of Bruce Cockburn’s song Nicaragua in which he substituted the word "Nicaragua" with the words “Cindy Crawford” in the lines “Don’t let them stop you now Nicaragua”.
Did Mr Clayton pass on a recording of the song to Ms Crawford or ever discuss the song with her with reference to Mr Kiely, he further asked. He also questioned whether, if Ms Crawford stated publicly that Mr Kiely composed the song, Mr Clayton would deny her assertions.
'Inappropriate' questions
Mr Justice O’Moore said certain of the interrogatories have “nothing whatsoever to do with” Mr Kiely’s case, while “each and every one” is “inappropriate”.
During the hearing of his motion seeking orders to compel replies to interrogatories, senior counsel for U2 Ltd, Kelley Smith SC said Mr Kiely says he has “no knowledge of the facts, per se,” and has “only memories of occurrences he believes have taken place”.
Ms Smith, instructed by Simon Murphy and Barry Cahir of Beauchamps, said Mr Kiely claims he needs responses to the questions “to establish these perhaps mistaken memories of what took place” in the Donnybrook church.
Giving his decision, Mr Justice O’Moore said Mr Kiely should have secured court permission to serve U2 Ltd with his interrogatories. For this reason alone the motion could be dismissed, he said.
However, treating his application as an application for leave to deliver interrogatories, Mr Justice O’Moore said it would fail because of the nature of the questions.
U2 is not required to answer interrogatories to “sustain and confirm” Mr Kiely’s memory, he added. Further, the judge said, Mr Kiely’s memory does not seem to be as infirm as he suggests when considering very detailed accounts he has given of matters including going for coffee with Ms Crawford “on the corner of Santa Monica Boulevard and 3rd Street”.
The interrogatories are inappropriate and not ones the court should compel U2 Ltd to answer, Mr Justice O’Moore added.
