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

Damages in representative proceedings under CPR 19.8 may be awarded without joining individual class members where the class’s loss can be calculated reliably on a global or top-down basis and individual circumstances do not affect the overall loss. Where individual circumstances directly affect entitlement or quantum, statistical averaging cannot replace proof of individual loss, absent a statutory collective-proceedings regime. The broad-axe principle permits modest estimation where the individual variation is immaterial, but cannot justify compensation for persons who suffered no loss. A non-party may intervene to make submissions under the court’s inherent jurisdiction or CPR 3.1(2)(p); CPR 19.2(2)(a) governs joinder as a party and does not require that route.

The claimants bring Francovich damages claims under CPR 19.8 on behalf of approximately 30,000 US performers said to have suffered loss from defective implementation of the Directive. An earlier judgment, reported at [2025] EWHC 1944 (Ch), identified difficulties concerning individual assessment of damages and required firm, workable proposals.

At the CCMC the court considered whether the representative claims should continue, whether the March 2026 trial should be adjourned, and whether Phonographic Performance Limited should intervene by written submissions on the Atresmedia issue. The central questions were whether the proposed methods could lawfully and proportionately determine individual loss under CPR 19.8, and whether PPL could intervene without becoming a party.

1. CPR 19.8 issue. The preferred proposal was not viable if the claimants failed on their causation arguments. The Parallel Entitlement Issue and Atresmedia Issue could produce different outcomes for different performers, so damages could not be assessed reliably by applying an average reduction to aggregate damages. The proposal could result in compensation being paid to persons who had suffered no loss.
2. The court explained that Lloyd v Google permitted representative damages where class loss could be calculated on a top-down or global basis without individual assessment. The examples in that case did not support a general power to award average loss where personal circumstances directly affected entitlement. The broad-axe principle did not alter that conclusion. Nor did EMI Records v Riley or Independiente Ltd v Music Trading On-Line UK Ltd establish such a general rule.
3. The first fallback proposal, involving joinder of performers after a liability trial, was legally possible in principle but lacked evidence that sufficient performers would come forward. Proceeding without such reassurance risked an expensive process serving little purpose and was inconsistent with proportionate case management.
4. If the causation arguments succeeded, the claims could proceed by reference to PPL Data. The possible producer/performer adjustment was sufficiently small for the broad-axe principle to overcome it and did not itself make CPR 19.8 unsuitable. The court therefore declined to terminate the representative claims. Instead, it ordered an eight-week sampling and engagement exercise to test the prevalence of unknown parallel entitlement and the number and value of performers willing to be joined. The trial was adjourned.
5. Intervention. CPR 19.2(2)(a) concerned adding a person as a party and did not govern a request by PPL merely to make submissions. The application could be dealt with under the inherent jurisdiction or CPR 3.1(2)(p). PPL’s interests were potentially affected and its submissions were likely to assist on the Atresmedia issue. The intervention application was allowed.

The judgment was given at a Costs and Case Management Conference and was to be read with the earlier judgment reported at [2025] EWHC 1944 (Ch). No appellate history was stated.