David Alexander de Horne Rowntree v Performing Right Society Limited & Anor

Fairness in an alleged abuse involving the distribution of unidentified royalties must be assessed comparatively. The claimant must identify a realistic, non-infringing counterfactual distribution rule, stated at least in general terms. An unknowable perfect-information distribution cannot serve as the comparator. Statistical evidence that one group is more likely to suffer data failures does not itself establish unfairness, bias or entitlement. Competition law is not a general law of consumer protection and does not require a dominant undertaking to achieve the best outcome for customers or a subgroup. Where no plausible counterfactual is advanced, the claim may be struck out or summarily dismissed as unsustainable.

The appellant, a songwriter member of the PRS, sought an opt-out collective proceedings order under the Competition Act 1998. He alleged that the respondents had abused a dominant position under section 18 by distributing unidentified or black box royalties pro rata between writer and publisher members, allegedly favouring publishers.

The Competition Appeal Tribunal granted reverse summary judgment or struck out the claims and refused certification: [2025] CAT 49. The appellant challenged the Tribunal’s approach to class commonality and the arguability of unfair trading conditions. The respondents also relied on certification concerns. The central issue was whether the pleaded distribution system disclosed a reasonably sustainable abuse of dominance claim.

1. The appeal was dismissed. The Tribunal’s order granting summary judgment or striking out the claims was upheld. It was unnecessary to determine the remaining certification issues.
2. The Court accepted that the respondents were dominant and that the distribution rules might affect trade within the United Kingdom. The relevant question was whether pro rata distribution of unidentified royalties was capable of amounting to unfair trading conditions under section 18 of the Competition Act 1998. The Court adopted the general approach described in London & South Eastern Railway Ltd v Gutmann [2022] EWCA Civ 1077 and Gutmann v First MTR South Western Trains Ltd [2025] CAT 64. It agreed that abuse is broad but not unlimited, that competition law is not general consumer protection, and that a dominant undertaking is not required to organise its business for the best outcome for customers or a subgroup.
3. Fairness could not be assessed against the theoretical distribution that would have occurred with complete information. The data failures were the very reason that the royalties could not be matched, making the true distribution unknowable. Since the PRS had to adopt some method of sharing the funds, the actual pro rata rule had to be compared with a realistic non-infringing counterfactual. The appellant had advanced no such rule, even in broad terms. The possible per capita approach was not a plausible comparator because it could disadvantage many songwriter members.
4. The assumed statistical fact that writers were, in aggregate, more likely than publishers to be affected by data failures did not establish unfairness. Probabilities did not amount to individual or class entitlements. Writer members were not a uniform class, and the PRS distributed royalties by reference to individual works and interests rather than class membership.
5. The Court also held that no properly pleaded case had been advanced under section 18(2)(c). The caution applicable to summary disposal in genuinely novel or developing areas of law did not assist the appellant because no such issue had been identified. The absence of a realistic counterfactual fatally undermined the claim.

1. Court of Appeal (Civil Division): The appeal was dismissed and the Tribunal’s order was upheld: [2026] EWCA Civ 814.
2. Competition Appeal Tribunal: The claims were struck out or dismissed by reverse summary judgment, and certification for collective proceedings was refused: [2025] CAT 49.