Clifford Chance

On 30 July 2025, the High Court handed down judgment in AFM and SAG-AFTRA & Ors v Secretary of State [2025] EWHC 1944 (Ch), addressing whether four individual US performers could act as class representatives under CPR 19.8. The judgment offers new practical guidance to parties in meeting the necessary procedural hurdles to enable claims to progress as representative actions.

The SAG Case: Facts and Procedural History

The proceedings, brought nine days before the statutory deadline for initiating Francovich damages claims ahead of the UK's departure from the European Union, concern allegations that approximately 33,000 US-based musicians and performers were denied equitable remuneration for the use of their recordings in the UK, due to a divergence between UK and EU law.

The Claimants in the proceedings fall into three distinct groups:

1. The US Labour Unions comprising the American Federation of Musicians ("AFM") and the Screen Actors Guild – American Federation of Television and Radio Artists ("SAG-AFTRA");
2. The trustees of the fund that administers, collects and distributes royalty payments to members of AFM and SAG-AFTRA; and
3. Four individual performers who are members of AFM or SAG-AFTRA.

The Secretary of State's arguments regarding CPR 19.8

Under CPR 19.8, a claim may be pursued by one or more individuals as representatives of others, provided they all share the “same interest” in a claim. The Secretary of State (“SoS”) contested the application of this provision to the four individual performer claimants, asserting that they should not be allowed to act in a representative capacity. The SoS advanced three main arguments in support of this objection:

1. Conflict of Interest between Class Members: The SoS contended that some US performers also possessed producer copyright interests, creating potential intra-class conflicts. This dual status could give rise to competing entitlements, especially if future legislative reforms reshape how rights are divided between performers and producers.

Drawing on Lord Leggatt’s reasoning in Lloyd v Google (see our briefing here), the High Court reaffirmed that the purpose of the "same interest" requirement under CPR 19.8 is to ensure that representatives can be relied on to conduct litigation in a manner that effectively promotes and protects the interests of all class members.

The High Court rejected the SoS's objection, stating there was not a sufficient conflict of interest in the notion of potential parallel entitlement to restrict proceedings being brought on behalf of the class.

2. Class Definition: In these proceedings, the term "US Performers"^[1] was defined to include members (including deceased members) represented by SAG-AFTRA and AFM, who were US nationals or residents, had a US performance incorporated into a phonogram (or "sound recording"), and had a performance published in the US or by a US producer.

The SoS contended that the class definition (as set out at paragraph 45 of the Judgment) was vague and uncertain, pointing to discrepancies between lists prepared by the Claimants and Phonographic Performance Limited ("PPL", the collective management organisation which licenses music users when music is communicated to the public in the UK) to estimate the number and identity of US Performers who could have a claim for Francovich damages.

The High Court acknowledged the existence of evidential difficulties in ascertaining whether an individual satisfies the definition but clarified that they did not amount to ambiguity in the class definition itself. It held that the criteria for identifying US Performers was objectively ascertainable and rejected the SoS's argument that the definition was deficient.

3. Individual Assessment of Damages: The High Court found that individualised assessment of damages would be required in these proceedings. In a scenario where the SoS is found liable, the loss suffered by each US Performer must be calculated based on the equitable remuneration they would have received had the UK law been drafted differently.

The SoS argued that identifying individual class members and assessing damages would be complex and potentially unworkable, given the possibility of parallel entitlements and the logistical challenges of engaging thousands of performers.

The High Court agreed that these were substantial issues, noting the absence of a detailed proposal from the Claimants for managing individualised assessments following judgment. Though the data held by PPL regarding potential class members was helpful, it was insufficient on its own to reliably identify all class members and quantify loss without engagement from individual performers. For instance, performers often appear under pseudonyms, making it difficult to verify claims without direct engagement.

Although the objections raised did not preclude the use of a CPR 19.8 representative action, the High Court acknowledged the substantial practical challenges posed by individualised damages assessments.

In the context of potential limitation hurdles which could prohibit the advancement of arguable claims of US Performers following the UK's departure from the EU, the High Court chose to defer a decision as to whether the claims be permitted to progress as representative claims. Instead, the Claimants were offered an opportunity to return at a further case management conference with firm and workable proposals to address these issues.

Practical Implications

This judgment highlights some of the challenges for parties in large-scale, low-value collective actions in England and Wales, emphasising the importance of clear class definitions, the importance of rigorous assessment of potential conflicts of interest, and the practicalities of individualised damages assessment for representative claims under CPR 19.8. In particular:

• The "same interest" requirement will be interpreted purposively by the courts, focusing on the existence of a true conflict of interest within the class. Arguments as to divergent interests or the possibility of some class members benefiting less than others is not enough to defeat a representative claim.
• Class definitions must be objectively clear, but practical or evidential difficulties in identifying class members do not necessarily bar representative proceedings.
• The need for individualised damages assessment can be a major practical hurdle. Courts may allow representative claims to proceed on common issues but will require claimants to present firm and workable proposals for how individual damages will be assessed and distributed.

While Mr Justice Richards in this instance afforded the Claimants a further opportunity to address procedural challenges, he made clear that representative actions will not be permitted to proceed absent a defined and practicable litigation strategy.

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[1] Paragraph 15 of the Claimants' Draft APOC.