Jinxin Inc v Aser Media PTE Limited & Ors

A split trial is exceptional and requires a real and substantial advantage over a single trial. The court must undertake a pragmatic balancing exercise, considering cost, efficiency, evidential overlap, witness burden, delay, appeals and fairness. A possible saving is insufficient where interlocking issues may require findings to be revisited.

Findings of another court or tribunal are generally inadmissible as evidence of their truth. Paragraph 35 of Schedule 8A to the Competition Act 1998 creates a confined exception. It applies to a claim by a person suffering loss from a competition infringement against the person found to have committed that infringement. Inadmissible findings cannot be pleaded merely to demonstrate a proper basis for alleging fraud or dishonesty.

The claimant alleged that fraudulent written representations induced its acquisition of a media sports rights group. It also claimed unlawful means conspiracy. At a case management conference, several defendants sought three trials dealing respectively with representations and reliance, falsity and the defendants’ responsibility, and remedies.

The same defendants also sought to strike out pleaded references to findings of an Italian competition authority and a Swiss criminal court. The claimant accepted that the Swiss decision was inadmissible but argued that the Italian decision was prima facie evidence under paragraph 35 of Schedule 8A to the Competition Act 1998. The court had to decide whether splitting the trial offered sufficient procedural advantage and whether the statutory exception to the rule in Hollington v Hewthorn applied.

1. The split trial application was dismissed. A direction for separate trials is outside the norm and requires a real and substantial advantage. The governing exercise is pragmatic and considers costs, trial management, witness inconvenience, complexity, prejudice, the practicality of the proposed division, duplication, delay, appellate consequences, settlement and the fair and efficient disposal of the whole action.

2. The proposed first trial offered potentially substantial savings. Nevertheless, it was unlikely to dispose of every pleaded representation. Questions of meaning, reliance and inducement were interlocked with falsity, the representors’ intentions and the claimant’s knowledge. Findings at a later trial could undermine assumptions made at the first trial and require reliance or inducement to be reconsidered. Witness evidence might also be duplicated, and successive trials and appeals could cause substantial delay. Those disadvantages outweighed the possible saving: paras 35–50.

3. The Hollington v Hewthorn application was allowed. Findings of fact made by another court or tribunal are generally inadmissible as evidence of their truth. The trial judge must determine the case on the evidence received in the present proceedings. The evidential material placed before the foreign bodies remained potentially admissible: paras 56–58, 74.

4. Paragraph 35 of Schedule 8A to the Competition Act 1998 did not make the Italian authority’s decision admissible. A competition claim requires a cause of action arising from the competition infringement, whatever legal form that cause of action takes. Paragraph 35 contemplates a claim by the person suffering the resulting loss against the person found to have committed the infringement. The present deceit and conspiracy claims arose from alleged fraudulent representations, and the defendants were not the undertakings against which the competition finding had been made: paras 76–85.

5. A pleader may consider inadmissible material when deciding whether there is a proper basis for alleging fraud. That does not permit the material itself to be pleaded. The facts supporting an inference of fraud or dishonesty must be capable of proof through admissible evidence. The references to the Italian and Swiss decisions were therefore struck out, without affecting pleas concerning evidence given before those bodies: paras 87–91.

not stated in the judgment.