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

As I indicated in paragraph 100 above, one main theme at trial was whether, and if so on what basis, trial defendants who were aware of it believed that the use of balanced share-less settlement loops of the type used in the Solo Model or Maple Point Model, settling to zero, could leave the USPF (or LabCo) with an entitlement to a dividend tax refund from SKAT. In that connection, it is natural to consider, among other things, whether advice was taken on Danish tax law, and if so by whom, on what basis, with what outcome. It is convenient to answer that now on the facts, before turning to deal with the Klar Model to complete this main narrative.

The short answer as regards legal advice, I find, is that none was ever sought on that question, and I conclude that Sanjay Shah, Mr Horn and Rajen Shah, at the time, knew that advice had not been sought on that question and expected that if it had been sought, it would probably have been negative.

The outcome of the Revenue Rule Trial, after SKAT’s successful appeal, is that none of the pleaded claims pursued by SKAT at the Main Trial is regarded as inadmissible in an English court as a claim to enforce, directly or indirectly, Danish tax law or some other sovereign interest of the Kingdom of Denmark. The tax law context is still relevant, as it may bear upon aspects of the case pursued by SKAT, for example: the purport or effect, considered objectively, of the submission of a tax refund claim to SKAT, or of the documents that went to SKAT; the assessment of SKAT’s actions or thinking said to justify a finding of inducement by representations; the investigation of the understanding or intention of those who played some part in the trading that resulted in tax refund claims being made to SKAT, or in the making of those claims.

Further, it is right to keep in mind throughout that the process scrutinised in this litigation was not a business negotiation or commercial transaction, between SKAT and anyone. It was a process created and operated by SKAT as a national tax authority for receiving claims for relief from Danish dividend tax and for a payment accordingly from Danish public funds. Persons considering or interacting with that process might or might not draw any or any clear distinction between questions of having, or not, an entitlement to a tax refund, on a proper understanding of Danish tax law, on the one hand, and questions of understanding and satisfying (or not) what SKAT had decided, or appeared to have decided, to treat as sufficient for it to accept a claim and make a payment.

With that in mind, I summarise not only the private legal advice, to the extent I had evidence of it, sought and received by parties involved in Solo Model or Maple Point Model cum-ex trading, but also, and first, the advice and guidance published at the time by SKAT and by Clearstream.