One Defendant’s Deal Doesn’t Let the Other Off the Hook

• In Intellectual Property Rights: Joint liability depends on judicial discretion, not strict English or Roman-Dutch law rules – SC

The Supreme Court has made an important ruling in the long-running copyright case over the late Clarence Wijewardene’s songs. The judges said that if two people are sued together, a settlement or judgment against one of them does not automatically free the other. Instead, the court has the power to look at the facts and decide each person’s responsibility separately.

In this case, Clarence’s widow, Sheela Wijewardene, took legal action against singer Rajiv Sebastian and businessman Sarath Kothalawala, accusing them of using Clarence’s music without permission. Before the trial ended, Sebastian admitted Clarence’s rights, reached a settlement, and agreed to pay Rs. 2 million. That left the case continuing against Kothalawala.

The Commercial High Court later decided that Clarence’s copyrights had indeed been violated. But the court only gave Sheela an injunction to stop further use of the works and ordered costs to be paid. It refused her request for damages, compensation, or to have the infringing CDs and DVDs handed back.

On appeal, the Supreme Court took a closer look. It found that Sebastian had signed agreements with Kothalawala, falsely claiming he owned Clarence’s songs and promising to protect Kothalawala from any legal trouble. These agreements showed that Sebastian was the one mainly responsible for the wrongdoing, while Kothalawala had been misled. Because of that, the Court agreed with the High Court that damages should not be imposed on Kothalawala.

However, the Supreme Court said the High Court was wrong to let Kothalawala keep the infringing material. Since he had reproduced and distributed the works, he was ordered to return the CDs and other copies to Clarence’s estate.

“…as per Sections 3 and 4 of the Civil Law Ordinance, matters relating to Intellectual Property has not been identified as an  area English law applies. In fact, Intellectual Property could not have been in contemplation when the said Ordinance was enacted. Our Intellectual Property Act is statutory law that has been passed by our legislature. However, it is not a codification of any Roman Dutch law principles but might have influenced by English law and various convention and treaties etc. However, as it is our own statute one cannot argue that English law principles should be strictly apply. On the other hand, even though it does not codify Roman Dutch Law, one may argue our Common Law principles should be applied to joint liability issues which principles are different from English law as Intellectual Property is not a subject where English law applies as per Civil Law Ordinance. As per Roman Dutch Law principles judgment against one joint debtor does not bar action against others. – vide Weeramantry, The Law of Contracts Volume 1 Section 563. However, my view is whether a judgment against one bar the action against the others with joint liability falls within the discretion of the court depending on the facts as Section 14 of the Civil Procedure Code provides for the Court to decide respective liability…” – Justice E.A.G.R. Amarasekara

Case No: SC CHC Appeal No. 04/13 [Decided on 23.05.2025]

Before: Hon. E.A.G.R. Amarasekara, J. Hon. A.L. Shiran Gooneratne, J. Hon. Arjuna Obeyesekere, J.