British Academy of Songwriters, Composers and Authors Musicians' Union & Ors, R (on the application of) v Secretary of State for Business, Innovation and Skills & Anor

A quashing order may be limited to prospective effect where the court considers that retrospective invalidity would affect persons who were not represented and would create complex private-law consequences. Public-law unlawfulness does not itself establish private-law liability or determine the rights of private parties. Those issues should ordinarily be resolved in litigation involving the affected parties. A reference to the Court of Justice is inappropriate where the national proceedings no longer contain a live dispute requiring an answer and the proposed questions would be hypothetical. The court may nevertheless preserve a procedural route for a future reference if a genuine dispute later crystallises.

The claimants challenged the introduction of a private-copying exception under section 28B of the Copyright, Designs and Patents Act 1988. In the substantive judgment, British Academy of Songwriters, Composers and Authors Musicians' Union & Ors v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin), the court held that the consultation process leading to the Regulations was unlawful.

This ruling determined the consequential issues: whether the Regulations should be quashed, whether quashing should operate retrospectively, whether questions concerning the meaning of harm should be referred to the Court of Justice, and how costs should be allocated.

1. The Regulations were quashed in their entirety. The unlawfulness arose from a defect in the collection and evaluation of evidence during consultation. The order therefore covered all rights and obligations introduced by the Regulations, including the analogous exception for performing rights in Schedule 2 paragraph 1B of the Copyright, Designs and Patents Act 1988.

2. The court had power to limit the temporal effect of a quashing order. Although invalid subordinate legislation will ordinarily be treated as retrospectively void, prospective-only relief may be appropriate. The question was especially sensitive because numerous people had relied on section 28B while it was in force.

3. The court quashed the Regulations prospectively and declined to rule whether they were void ex tunc. Retrospective consequences raised complex issues in private litigation between copyright owners and alleged infringers, who were not parties to the judicial review. Public-law unlawfulness did not itself establish private-law liability. Future defendants could raise issues such as estoppel, legitimate expectation or fair use, depending on the pleaded case.

4. No reference was made to the Court of Justice. Once the Regulations had been quashed, there was no live dispute requiring an answer on harm. A reference should not be made merely because an issue is important or interesting, or to create a platform for hypothetical future proceedings. The parties were instead granted liberty to apply if a genuine dispute later arose.

5. Costs were awarded on an issue-by-issue basis. The claimants obtained their costs on Issues I and IV, the Secretary of State obtained costs on Issues II, III and V, and the Secretary of State obtained his costs against the intervener attributable to Issue VI. Costs were subject to detailed assessment if not agreed.

The claim was determined at first instance in the Administrative Court. The substantive judgment held the consultation process unlawful: [2015] EWHC 1723 (Admin). This ruling dealt with remedy, temporal effect, reference and costs.