The Court of Appeal awarded Phonographic Performance (Ireland) Limited (PPI) one-third of the overall costs in the High Court and on appeal after finding that neither side was entirely successful. The award also covers the submissions and hearing on costs held on 29 May 2020.
The costs judgment followed an appeal concerning two preliminary issues. In its earlier judgment, delivered on 3 April 2020, the court considered the issues after a trial at which no facts had been agreed and no evidence had been adduced. The parties each sought the costs of the appeal and High Court proceedings, saying they had been largely successful.
On the first issue, both parties had argued that they held the statutory responsibility for determining equitable remuneration payments to performers. The Court of Appeal rejected both positions, holding that the question could not be resolved as a binary choice. Neither side succeeded on that issue.
On the second issue, the court rejected Recorded Artists Actors Performers Limited’s (RAAP) argument that it was deemed to represent all performers, including those who had not authorised it. However, RAAP succeeded in challenging the High Court judge’s conclusion that RAAP needed an express assignment of rights to act for performers. The appeal court held that a collective management organisation could be authorised through “other contractual arrangements” and that an assignment was not required.
PPI argued that this point had not been contested by it on appeal and was not RAAP’s main argument on the second issue. The Court of Appeal said that argument might have had merit if PPI had conceded the point and agreed that the relevant part of the High Court judgment and order could be varied by consent. Instead, after the High Court decision, PPI insisted that RAAP could represent only performers who had assigned their rights or licensed it to act for them.
In setting costs, the court treated the two preliminary issues as closely connected. It awarded PPI one-third of the overall High Court and appeal costs, rather than the full costs, taking account of RAAP’s success on the authorisation point.