Following the High Court's July judgment in AFM and SAG-AFTRA & Ors v Secretary of State [2025] EWHC 1944 (Ch) (see our blog post here), Mr Justice Richards and Master Brightwell have provided further guidance regarding the practical and legal limits of representative claims in complex, large-scale litigation. 

Background: Where we left off

The claimants in the proceedings are US performers, their unions, and trustees who are seeking damages for the UK's alleged failure to implement EU law resulting in the loss of equitable remuneration for the use of their recordings in the UK. In July 2025, the High Court permitted the claimants a further opportunity to present "firm and workable proposals that deal with all practicalities" for managing representative actions, particularly the need for individualised damages assessments. We considered the implications of that judgment in a previous blog post, which can be found here.

The December Judgment¹

The December judgment follows a November hearing focused on whether the claimants' new proposals were sufficient to allow the claims to proceed under CPR 19.8, particularly given uncertainty as to whether the claimants will be successful at trial on key causation arguments.

Key Issues and the Court's Analysis

1. Individual Assessment of Damages: Still the Stumbling Block

The High Court reaffirmed that the need for individualised damages assessments remains a central obstacle, particularly in light of the claimants' causation arguments. The claimants argued that damages should be decided at a quantum phase after the determination of liability and that the damages be calculated without regard to whether (i) individual performers had alternative entitlements to equitable remuneration (the "Parallel Entitlement Issue") or (ii) certain exploitations fell outside the scope of the relevant EU law (the "Atresmedia Issue").

The court emphasised that, if the claimants are wrong on these points, it would be necessary to investigate the personal circumstances of each performer to determine actual loss, thereby precluding a representative approach under CPR 19.8 absent a robust mechanism for individual assessment. The claimants' proposal to use sampling and statistical reductions was rejected, as it risks awarding damages to individuals who had suffered no loss, contrary to the principles established in Lloyd v Google.

2. Fallback Proposals: Not Yet Workable

The claimants' "fallback approach" should they fail on their causation arguments was that only the 4,925 performers with claims over £500 be contacted after the liability trial and invited to be joined as parties for the quantum stage. They acknowledged it would not be practical to contact all 33,000 performers. The court found this approach problematic, as there was no evidence that enough performers would come forward at a quantum phase, raising concerns about the proportionality and utility of proceeding in this way.

3. If the Claimants Succeed on Causation: A Path Forward

The court accepted that, should the claimants succeed on their causation arguments at the liability trial, damages could be assessed on a common basis using PPL data, with only minimal issues arising from the Parallel Entitlement Issue. It would also not be necessary to consider whether the Atresmedia Issue operates to limit any particular class member's entitlement to damages. In that context, a representative action would be viable.

4. If the Claimants Fail on Causation Arguments: Not Viable

However, if the claimants fail on their causation arguments, neither their preferred nor fallback proposals would provide a workable or principled basis for a representative action. The Court emphasised that awarding damages on a "broad axe" or statistical basis, where individual loss cannot be established, is not permissible under CPR 19.8. The Court suggested the claimants were "effectively asking the court to fashion a collective proceedings regime", without any statutory underpinning.

5. A Further, Final Opportunity

Despite the claimants' failure to present a fully workable solution, the Court declined to bring the representative claim to an end.

Recognising the potential unfairness this would cause the class in the "realistic" scenario that the claimants' causation arguments are ultimately successful, the Court offered the claimants a final, time-limited opportunity of eight weeks to contact a sample of US performers to obtain information regarding their willingness to be joined as parties. The claimants must provide a schedule and analysis to the SoS, demonstrating why the CPR 19.8 process is proportionate having due regard to the costs of pursuing it. Should the Secretary of State disagree that this condition has been satisfied, there may need to be a further hearing.

Practical Implications: The Limits of Representative Actions

The December judgment underscores the High Court's insistence on principled and workable mechanisms under CPR 19.8. The message is clear:

• Statistical or “broad axe” approaches to damages assessment are not a substitute for individual proof of loss in representative actions under CPR 19.8.
• Fallback proposals must be supported by concrete evidence of claimant engagement and must be proportionate in light of the costs and complexity of the litigation.
• The court will not allow representative claims to proceed indefinitely in the hope that practicalities can be resolved later; a clear, workable plan is essential.

¹ [2025] EWHC 3262 (Ch).