Trustees of the AFM and SAG-AFTRA Intellectual Property Rights Distribution Fund v The Secretary of State for Science, Innovation and Technology

Applications to strike out, obtain summary judgment and amend pleadings engage the same merits test: whether the claim or proposed amendment is bound to fail. A court may finally determine a short, severable point of law summarily, but retains discretion to defer difficult issues requiring wider statutory context, policy or factual findings.

Representative proceedings under CPR 19.8 may proceed where class members’ interests do not conflict and the class is objectively ascertainable. However, individual assessment of damages requires firm and workable proposals before such proceedings can progress.

Foreign associational standing does not, without more, permit entities to sue in England in their own names for others’ losses. Claims concerning post-Brexit Francovich damages and audiovisual works raised realistically arguable issues and were not bound to fail.

The claimants, including US labour unions, trustees, and individual performers, seek Francovich damages for alleged failures to provide US performers with full equitable remuneration when sound recordings were exploited in the UK. The Secretary of State applied to prevent representative proceedings, strike out claims brought by the unions and trustees, exclude post-31 December 2020 damages and audiovisual-work claims, and resist amendments.

The court also considered applications to admit expert evidence, amend the Particulars of Claim and amend the Defence. The central issues were the operation of CPR 19.8, the standing of non-performer organisations, the effect of EU withdrawal legislation on Francovich damages, and the prospects of claims involving audiovisual fixations.

1. The court applied the agreed merits test to all strike-out, summary judgment and amendment applications. A claim or amendment should be rejected only if it is bound to fail. A straightforward, severable point of law may be finally determined summarily where the court has the necessary material, but the court retains discretion to defer issues whose determination would risk deciding a preliminary point without the factual and statutory context needed by an appellate court.

2. The individual claimants satisfied the threshold requirement of having the same interest as the proposed class under CPR 19.8. Possible parallel entitlements, copyright ownership and differing damages did not create conflicts of interest. The proposed class was objectively ascertainable; evidential difficulty did not amount to uncertainty. Nevertheless, individual assessment of damages would be required. The claimants had not yet provided a sufficiently firm and workable proposal for a bifurcated process. They were therefore given an opportunity to address those practical matters at a further case management conference.

3. The unions and trustees had no realistic prospect of establishing a right under English procedural law to sue in their own names, for the benefit of US performers, merely because US federal law recognised associational standing. The foreign-law concept was not an inherent attribute of the entities’ status. Comity was not engaged, and permitting the claims would risk subverting CPR 19.8. Their Francovich damages claims were struck out and consequential amendments refused.

4. The court declined to summarily determine whether the withdrawal legislation barred Francovich damages for post-IP-completion-day losses. The interaction between paragraph 4 of Schedule 1 and paragraph 39(7) of Schedule 8 to the European Union (Withdrawal) Act 2018 was difficult and potentially required purposive construction, wider statutory context and further authorities. The proposed amendments were not bound to fail. Paragraph 39(7) was concerned with the existence of rights, not procedural limitation, and did not fall within CPR 17.4(1)(b)(iii).

5. Atresmedia was binding on the High Court and established that an audiovisual recording containing an audiovisual fixation was not a phonogram for the purposes of the Directive. However, the claimants’ alternative causation and construction cases did not depend entirely on showing that decision to be wrong. The National Treatment, Indirect Causation and Scope of Atresmedia amendments therefore had realistic prospects and were permitted. The meaning of “audiovisual work”, including any originality threshold, was not suitable for summary determination.

6. Permission was also granted for the Secretary of State to amend the Defence, provided that the reference to nationals of WPPT contracting parties meant actual nationals. There was little prejudice and sufficient prospect of success for the treaty-construction issue to be considered at trial.

First-instance decision on applications concerning representative proceedings, standing, summary judgment and amendments. The judgment itself does not state any prior appellate history.