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Principle of Hollington v Hewthorn applied in the CAT


On 17 February 2023 the Competition Appeal Tribunal (Mrs Justice Bacon DBE,  Justin Turner KC and Professor Mason) granted Qualcomm's application to strike out a passage of the Reply in collective proceedings brought by the Consumers' Association (known as Which?).  

In its proceedings Which? claims aggregate damages totalling approximately half a billion pounds on the basis of an alleged abuse of dominance in relation to Qualcomm's patents and chipsets used in 4G iPhones and Samsung Galaxy smartphones in the UK.  In support of its claim, Which? made extensive reference to findings in judgments and decisions of foreign courts and regulators.  In its Reply, Which? contended that reasoned findings made in those proceedings could be taken into account in proceedings before the CAT.  Qualcomm applied to have this allegation struck out on the basis that it offends against the long-standing rule derived from the case of Hollington v Hewthorn that factual findings made by another decision-maker are inadmissible in a subsequent trial. 

In its ruling, the CAT held that it was not bound by the rule in Hollington v Hewthorn, in particular given the wide discretion in relation to evidence that it has under its procedural rules. However, the CAT considered that it was appropriate to adopt the same principle in these proceedings on the basis of the key reasoning underlying the principle in Hollington's case, namely, that the findings of fact at trial are to be made solely by the appointed judge or tribunal. The CAT agreed with Qualcomm that it would be inappropriate to put the parties to the expense of adducing potentially voluminous evidence at trial as to the circumstances of the prior foreign proceedings. The CAT reasoned that its task is not to second-guess the quality of the assessment of other decision-makers but to evaluate the body of evidence before it. 

The ruling is here.

Daniel Jowell KC, David Bailey and Emma Mockford appeared for Qualcomm Inc. (instructed by Norton Rose Fulbright LLP and Quinn Emanuel Urquhart & Sullivan (Brussels)).