Judicial review or ordinary action?

Phonographic Performance Ltd v Department of Trade and Industry and another ChD TLR 27 August

It was accepted that the UK Government had failed to implement an EC Directive requiring it to ensure that a single equitable remuneration was paid by the user if a phonogram published for commercial purposes, or a reproduction of such a phonogram, was used for broadcasting by wireless means or for any other communication to the public. On that basis the claimant was entitled to recover damages sustained within the six years immediately preceding the issue of proceedings by ordinary action. Counsel for the Crown accepted that the claim might be brought by ordinary action but submitted that the cause was sui generis and based on a core allegation that the UK should have amended the Copyright, Designs and Patents Act 1988, which was inherently a public law claim that ought to be pursued in proceedings for judicial review. Counsel contended that the failure to do this was an abuse of process and the claim should be struck out. The claimant conceded that the claim could have been brought by judicial review but contended that it was a private law claim that the claimant was entitled to bring by ordinary action.