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The High Court (Richards J and Master Brightwell) has handed down judgment in AFM and SAG-AFTRA & ors v Secretary of State [2025] EWHC 3262 (Ch).
The case is one of the final Francovich damages claims before the domestic courts. The proceedings concern the right of musicians to “equitable remuneration” when sound recordings they have performed on are broadcast or communicated to the public in the UK. The Claimants contend that UK’s system of ‘material reciprocity’ was incompatible with EU law requirements.
The first set of claimants are trade unions and the trustees of a fund that administer royalties for the unions’ members. These claimants issued Francovich proceedings in their own name on behalf of their members. Their claims were struck out in a previous judgment of July of this year, with the Court concluding that English law did not permit trade unions to claim Francovich damages for losses suffered by its members.
The second set of claimants are individuals who seek to represent a class of c.30,000 performers in a representative capacity. In its July judgment the Court concluded that these claimants’ original proposals failed to satisfy the requirements of CPR 19.8 because they would require an individualised assessment of damages.
In its recent judgment the Court has again rejected the Claimants’ updated CPR 19.8 proposals. The judgment makes clear, following Lloyd v Google, there is no general principle that, provided the members of the relevant class have consented, a representative of that class is not automatically entitled to seek damages on a top-down or global basis under CPR 19.8 without any need for individual class members to be joined as claimants. Instead, the Court has concluded that a “top-down” or global assessment of loss is only appropriate where individualised factors do not impact the overall quantum. The Court also explained that use of the “broad axe” did not alter these conclusions, especially in the context of a class that may contain members who have not suffered any loss.
The Court went on to consider the possibility of “bifurcated” representative proceedings, but refused to allow the claim to proceed on this basis because it was not reassured that individual performers would bring claims following a common issues trial. However, it has given the Claimants the chance to contact a sample of performers to provide this reassurance.
Ewan West KC and Will Perry acted for the Secretary of State.