As highlighted in our previous update on this case, in August the Competition Appeal Tribunal (the Tribunal) struck out and summarily dismissed Blur drummer David Rowntree’s application for a collective proceedings order (CPO) against the Performing Rights Society (PRS). The judgment marks the first time a CPO application has been entirely struck out/summarily dismissed. In this article, we explore the Tribunal’s reasons for refusing Mr Rowntree’s application.

The claim

PRS is the UK’s leading collective management organisation for the performing rights in musical works. It collects and distributes performing right royalties for musical works to its songwriter and publisher members. Such royalties are payable whenever a musical composition is performed or broadcast publicly (master royalties, relating to the recording of a composition, may also be payable).

Mr Rowntree (the proposed class representative, or PCR) proposed to bring opt-out collective proceedings on a standalone basis on behalf of a class of PRS songwriter members, alleging that PRS’s policies for distributing royalties in respect of which the correct recipient cannot be identified or that cannot otherwise be correctly distributed (referred to by the PCR as “Black Box royalties", though this is not an official term used by PRS) unfairly favour publishers over songwriters.

PRS typically pays unmatched/unidentified royalties to its members in the same or similar proportions as it otherwise distributes royalties to identified recipients. Mr Rowntree alleged, in essence, that a higher proportion of songwriter royalties sit in these categories than publisher royalties, and that PRS’s policy therefore unfairly over-allocates to publishers royalties that are “owed” to songwriters. According to Mr Rowntree, this constituted an abuse of dominance and/or an anti-competitive agreement in breach of UK and EU competition law. 

Adjournment application 

After the initial CPO hearing in February 2025, during which the Tribunal required the parties to produce evidence on the potential value of the claim, to inform a proportionality assessment, a further hearing was listed in June 2025 to consider proportionality. Shortly before the further hearing was due to take place, Mr Rowntree changed legal representatives and sought an adjournment of the further hearing so that he could amend his claim. 

The Tribunal refused to adjourn the claim ahead of the further hearing. Instead, it heard the application at the commencement of the further hearing and reserved judgment. In the recently handed-down judgment the Tribunal refused that application, calling further delay “unsatisfactory” and noting that the application did not provide substantive reasons nor draft amendments with a proper explanation of their scope, to enable an assessment of whether an adjournment was appropriate. 

Strike out/reverse summary judgment

Collective vs individual claims

PRS argued that Mr Rowntree had failed to articulate a claim that could be brought as collective proceedings – emphasising that such proceedings do not create a new entitlement to bring “collective claims”, but rather allow individual claims that already exist to be brought together and benefit from the procedural advantages of proceeding on a collective basis.

Mr Rowntree’s claim was that PRS had imposed unfair trading terms on its songwriter members, through policies that permitted the distribution to publishers of royalties that were, he argued, “owed” to songwriter members. He suggested, instead, these should be paid to songwriters as a class. This was despite the fact that there was no legal entitlement for any songwriter to be paid royalties for works in which they did not have an interest. PRS argued that Mr Rowntree had not identified a claim in competition law that any individual songwriter was capable of bringing, such that his pleaded claim failed in law and/or had no reasonable prospect of success.

The Tribunal agreed with PRS that it was necessary for the class to be “crafted to consist of members with individual claims”, notwithstanding the established principle that, in collective proceedings, damages can be proved top-down, on an aggregate basis. That being so, the Tribunal considered that the people who have a “prima facie entitlement” to unmatched/unidentified royalties are those people whose work is “performed and for various reasons cannot be identified and therefore paid”. Mr Rowntree, however, sought to bring proceedings on behalf of all songwriter members of the PRS. 

The Tribunal found that Mr Rowntree advanced no reasons capable of supporting the contention that members of the class shared the common feature of being “owed” unmatched/unidentified royalties, nor to support the position that it was unfair and abusive not to pay them such royalties (or a greater proportion of such royalties). As the Tribunal explained, there are a range of ways in which to distribute royalties and, whilst “one method of distribution may be considered preferable to another, [that] does not itself mean exercising a choice is unfair or abusive”. The Tribunal therefore granted PRS’s applications for summary judgment and to strike out the claim.

Microsoft (counterfactual) test/aggregate damages 

In addition to the issues with the type of claim the PCR was seeking to bring, PRS argued that Mr Rowntree failed to present any expert methodology capable of satisfying the so-called Microsoft test¹, as it had failed to formulate a counterfactual by reference to which PRS’s policies and any damages could be assessed.

The Tribunal agreed that the PCR needed to identify the revenues that would have been paid to the class in the counterfactual. It found that Mr Rowntree had not, “even in general terms identified a plausible approach as to how it might calculate the sums that should have been paid to writer members”. In particular, the Tribunal noted that “if works are unknown it is prima facie unknowable, in respect of those works, what proportions of royalties are owed to publishers and to writers”. The Tribunal concluded that the claim was therefore not suitable for an award of aggregate damages. 

The Tribunal noted however that, had the claim not been struck out, it would have been receptive to a request by Mr Rowntree to improve the counterfactual, in light of new information received from PRS (although it considered the defects were unlikely to be easily remedied). 

Proportionality/cost-benefit analysis

The Tribunal also weighed the costs of the proposed collective proceedings against their possible benefits, to determine their proportionality. For the purposes of the judgment, whilst accepting it was not in a position to resolve disputes as to the likely size of the unmatched/unidentified royalties, the Tribunal accepted Mr Rowntree’s position that this could be in the order of £200m across the period covered by the claim. At the same time, the Tribunal emphasised that any damages due to songwriters would only be a proportion of that pot, and that Mr Rowntree was unable to estimate what those damages would be.

The Tribunal looked at the PCR’s anticipated legal costs in the proceedings (estimated to be c.£18m) and the funder’s fee proposed in the litigation funding agreement (estimated at around £100m). While the Tribunal did not rule on the appropriateness of the fee, it considered it to be relevant background to the overall cost–benefit analysis, and noted that the fee in the case might be expected to equal or exceed any damages.

Furthermore, a central concern was that the class was, in a manner of speaking, “suing itself”, as it was not clear how PRS could pay any costs and damages award other than by diverting its revenues away from its members (PRS is a non-profit entity and, as the Tribunal noted, “every pound spent may be a pound less for its members”). Consequently, the Tribunal was not persuaded that the costs–benefit analysis favoured continuation. It indicated however that, had the PCR been “in a position to formulate the counterfactual such that the size of the claim could be better understood”, the Tribunal would revisit the question of proportionality. 

Finally, the Tribunal observed that other avenues existed to resolve the dispute, including making representations to PRS’s governing bodies. The Tribunal noted that it had not been presented with evidence that such routes had been attempted by Mr Rowntree prior to lawyers and funders putting the claim together, nor was it clear that any of the songwriter members on PRS’s governing bodies supported the proceedings. The Tribunal also considered it “unfortunate” that Mr Rowntree had not sought alternative dispute resolution mechanisms, such as mediation, at an earlier stage.

Authorisation

While the Tribunal refused to certify Mr Rowntree’s claim, it did provisionally find that he was a suitable class representative, despite arguments advanced by PRS that there was a potential for conflicts of interest within the class. However, the Tribunal found it surprising that Mr Rowntree had not consulted with his advisory committee when making his change of legal representatives. It also suggested that, if the collective proceedings were certified (i.e. successfully appealed), Mr Rowntree’s suitability to act as class representative “may need to be revisited”. 

Macfarlanes LLP is acting for PRS in the proceedings. 

1 The Microsoft test is based on the Canadian Supreme Court decision in Pro-Sys Consultants Ltd v Microsoft Corpn [2013] SCC 57 and was adopted by the UK Supreme Court in Merricks v Mastercard Inc [2020] UKSC 51 [135] as a helpful guide. This found that the expert methodology must be “sufficiently credible or plausible to establish some basis in fact for the commonality requirement” and “must offer a realistic prospect of establishing loss on a class-wide basis”. “The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question”.