Independiente Ltd. & Ors v Music Trading On-Line (Hk) Ltd. & Ors

Under CPR Rule 19.6, a representative claim may proceed where the claimant and represented persons have a common interest, a common grievance and relief that is beneficial in nature to all of them. The rule is a flexible tool of convenience and does not require prior authority from every represented person. The court should apply it consistently with the overriding objective. A representative claim should not be prohibited merely because it may increase the length or cost of the proceedings. The relevant comparison includes the aggregate cost and delay of separate proceedings. In copyright proceedings, common issues may arise where the alleged infringements result from the same method of dealing, even though different copyright owners or works are involved.

The claimants owned or exclusively licensed UK copyright in sound recordings. The defendants operated an online business supplying genuine CDs from Hong Kong to customers in the United Kingdom. The claimants alleged infringement through importation, possession in the course of business and issue to the public.

The claimants sought to sue on their own behalf and as representatives of other members of the BPI and PPL owning or exclusively licensing UK sound-recording copyright. The defendants applied under CPR Rule 19.6(2) to prevent the representative claim, arguing that the claimants lacked authority and did not share the same interest as the represented persons. The central issues were whether CPR Rule 19.6(1) applied and, if so, whether the court should exercise its discretion to prohibit representation.

1. The defendants’ application under CPR Rule 19.6(2) was dismissed. The claimants were entitled to proceed both individually and representatively. No questionnaire or lesser order was required.

2. The requirement of the same interest under CPR Rule 19.6 is the same as under the former RSC Ord 15 r 12. It should be applied flexibly and consistently with the overriding objective. The relevant questions are whether the claimant and represented persons have a common interest, a common grievance, and relief that is beneficial in nature to all of them.

3. Those requirements were satisfied. The pleaded claim concerned UK copyright owned or exclusively licensed by any relevant member. The alleged supply method was common to all the sound recordings. Unless copyright ownership, subsistence or consent was put in issue, the factual and legal issues would be identical across the represented class. The possibility that the class might fluctuate did not prevent commonality.

4. The absence of specific authorisation from each represented member was irrelevant to the operation of CPR Rule 19.6. The rule itself supplied the authority for a person who fell within its scope. The arrangements concerning costs, damages and internal authority were matters between the claimants, BPI, PPL and the represented members, rather than matters for the defendants.

5. Injunctive and pecuniary relief was beneficial in nature to the represented members. The possibility that recovered sums might be accounted to BPI did not alter that character. Nor did the breadth of the injunction justify prohibiting representation, since the statutory presumptions under section 105 of the Copyright, Designs and Patents Act 1988 could make relevant copyright ownership apparent.

6. The fact that representative proceedings might be longer and more expensive than proceedings brought only by the individual claimants was insufficient. The proper comparison was with the aggregate time and expense of separate claims by every relevant member, against which the representative procedure produced considerable savings.

First-instance decision. The judgment records no appeal or earlier decision in the same proceedings.