CL-2018-000297, CL-2018-000404, CL-2018-000590, - [2025] EWHC 2364 (Comm)

Applying those principles, SKAT submitted that “Lindisfarne owed [SKAT] a duty to take reasonable care [to ensure] that the Core Representations and Custodian Honesty Representations were accurate” (my emphasis). I do not think that is meaningful as regards the honest custodian representation. That is a representation allegedly made to SKAT, when a tax refund claim supported by a Lindisfarne CAN was submitted to it, that Lindisfarne honestly believed the core representations to be true concerning the payment credit reported by the CAN. What it means to propose that Lindisfarne owed a duty to take care to ensure that a representation about its honesty in respect of other representations was true is, to my mind, elusive. It makes sense to contemplate a duty to take care over the accuracy of a CAN that might be broken because of a careless failure to realise that the CAN as issued would convey something that Lindisfarne did not honestly believe to be true as much as it might be broken by a careless failure to realise that something Lindisfarne thought would be so conveyed was untrue. But that is not to contemplate a duty of care owed by Lindisfarne as to the accuracy of a representation about its own honesty.

As regards the core representations, then, the formulation of the alleged duty of care seems meaningful, but it is nonetheless unusual. The duty of care alleged is tied to, and assumes the existence of, the core representations. I think that is unorthodox, but the factors put forward by SKAT in support of imposing the duty of care indicate that it was deliberate. In what follows, I should emphasise, I am only summarising those factors, as put by SKAT, not saying whether their presence on the facts was made good at trial.