Commercial Court strikes out inadmissible pleaded reliance on decisions of foreign tribunals – Tom Snelling and Tadhg O’Leary

By Tom Snelling & Tadhg O'Leary

Partner Tom Snelling and Senior Associate Tadhg O’Leary examine the recent ruling in Jinxin Inc v Aser Media Pte Ltd and others, which re-affirms the Commercial Court’s position that decisions of foreign courts are inadmissible as evidence.

Jinxin Inc v Aser Media Pte Ltd and others [2022] EWHC 2431 (Comm) was handed down by the High Court in London last week following a three-day CMC.  The proceedings relate to claims for false representations and recission/damages by which the Claimant seeks to recover a $660m purchase price paid under an SPA (the target, MPS Group, a media sports rights agency, having since become insolvent).  In an interesting judgment, the Commercial Court re-affirms existing authority that, save if certain exceptions apply, decisions of foreign courts are inadmissible as evidence (and, as the Court determined that no such exception applied, the Court allowed the application for parts of the Claimant’s pleading which relied on such judgments to be struck out).  The Court also considered (and ultimately dismissed) an application for a three-part split trial.

Admissibility application

Two of the Defendants sought (successfully) to strike out the Claimant’s pleaded reliance on (a) findings of anti-competitive conduct made by the Italian Anti-Trust Authority (the “IAA”) against MPS Dublin and two other media rights agencies; and (b) findings of the Federal Criminal Court of Switzerland against a former senior FIFA official and an intermediary engaged by MPS London.

Under the principle in Hollington v Hewthorn [1943] KB 587, a decision of a foreign court or tribunal is as a matter of law inadmissible before the English Courts as evidence of the truth of those findings.  As the Court noted, to do otherwise would amount to the court taking account of an opinion based on facts and submissions which may not be known to the Court, regarding matters on which it is ultimately for the Court to make its own decision.

The Court rejected the Claimant’s contention that the IAA decision was admissible on the basis that the proceedings were ‘competition proceedings’ within the meaning of the Competition Act 1998 (which creates a statutory exception to the Hollington v Hewthorn principle).   The judge concluded that the claims brought were in deceit and conspiracy arising by reason of allegedly fraudulent misrepresentations made to the Claimant, not by reason of infringement of competition law.  It was also relevant that the Defendants were not themselves parties to or addressees of the foreign decisions.

The Court also did not consider that the requirement of the Commercial Court Guide to plead full and specific details of, and the factual basis for, allegations of fraud etc. permitted a party to plead inadmissible evidence to establish that it has properly pleaded a case of fraud or dishonesty.  As the Court noted “Any such facts and matters must be proved by way of admissible evidence and/or must themselves be admissible evidence; if the relevant evidence is inadmissible, it is difficult to see how the Court could draw the inference in question.”

However, the Court also noted that (a) while the rulings were inadmissible, the evidence which was adduced before the IAA and Swiss Court was not; and (b) the striking out did not ultimately affect the Claimant’s claims themselves (such that the Judge did question the utility of the striking out).

Split trial application

Separately, the Court considered, and ultimately dismissed, a split trial application.   The Court has discretion to order separate trials for separate issues under the CPR.  The judge considered the guidance from previous authorities as to the circumstances in which a split trial may be appropriate (which ultimately is to balance between the various pros and cons), while also noting that a split trial is a departure from the norm of a single trial and that courts must be wary of the perils that split trials may ultimately leading to increased costs, delays and other unanticipated difficulties.  Both Jinxin and another judgment of the Commercial Court last week (Virgin Aviation TM Ltd & Anor v Alaska Airlines, Inc [2022] EWHC 2391 (Comm)) refer back to the Hildyard J ruling in Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd [2012] EWHC 38 (Ch) that the Court should adopt an “essentially pragmatic balancing exercise in assessing how the case is likely to unfold according to whether there is or is not a split”.

Certain of the Defendants in Jinxin suggested a three-part trial process split broadly into: (a) a first trial to determine what representations were made, and the Claimant’s reliance thereon; (b) a second trial to determine the question of the falsity of the representations and the relevant Defendants’ knowledge, intention and responsibility for the representations; and (c) a third trial to deal with remedies and quantum.

The judge noted he was tempted to accede to the three-part trial application at various points, and wavered in reaching his conclusion.  However, ultimately the Court concluded that there was not a clear justification for ordering the split trial and that (among other considerations) it was possible the first trial would not dispose of the need for the further trials, certain issues were interconnected across the trials, certain witnesses might need to give evidence on multiple occasions and that the split trial (including appeals) could delay the overall disposal of the action.  However, the judge invited the parties to consider the potential suitability of a more “traditional” split trial between liability and quantum issues.

As a result, in Jinxin, the Court demonstrated a case management pragmatism, combined with encouraging parties to work together to resolve issues wherever possible, that has become a hallmark of the Commercial Court’s approach.


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