In a reserved judgment in Jinxin Inc v Aser Media Pte Ltd and others [2022] EWHC 2431 (Comm), handed down following a 3-day case management conference, Peter MacDonald Eggers KC sitting as a Deputy Judge of the High Court considered two applications brought by the Sixth and Ninth Defendants.
The action is one in which the claimant seeks rescission of an SPA under which it acquired shares for a price in excess of $660 million, or damages in the same amount. The claimant contends that certain of the defendants made false representations on which the claimant relied and which induced the claimant to enter into the SPA, including a representation that the target company had not engaged in any anti-competitive activities.
The Sixth and Ninth Defendants were granted an order striking out certain pleas in the Particulars of Claim, on the grounds that the relevant passages referred to material which would be inadmissible at trial by reason of the principle in Hollington v Hewthorn [1943] KB 57. The claimant had pleaded the conclusions of the Italian Anti-trust Authority (IAA), and of a Swiss criminal court.
The claimant contended that the IAA decision was admissible on the basis that these were ‘competition proceedings’ within the meaning of the Competition Act 1998. The judge rejected that contention, holding that the claim did not arise by reason of any alleged infringement of competition law, but only by reason of alleged fraudulent misrepresentations in that regard and, closely allied to this, the defendants were not alleged themselves to have infringed any competition law.
The claimant conceded that the conclusions of the Swiss criminal court were inadmissible, but argued that it was legitimate to plead those conclusions so as to demonstrate that Counsel had complied with their duty when alleging serious misconduct. The judge rejected this argument, and doubted the earlier decision of HHJ Paul Matthews in Crypto Open Patent Alliance v Wright [2021] EWHC 3440 (Ch) where it was held that it was permissible to plead inadmissible material in order to comply with the requirement in the Chancery and Commercial Court Guides that “where an inference of fraud or dishonesty is alleged, the facts on the basis of which the inference is alleged must be fully set out”.
The judge also considered the Sixth and Ninth Defendants’ application for a split trial. Following a closely-reasoned analysis of the pros and cons of such an order, the judge ultimately concluded that no split should be ordered. He directed, instead, that a 21 week trial of all issues should be listed to begin in January 2025.
Laurence Rabinowitz KC, Simon Colton KC and Sophie Weber appeared for the Sixth and Ninth Defendants, instructed by Allen & Overy. You can read the full judgment here.