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

The principal events out of which SKAT’s claims arose occurred between 9 and 12 years before the Main Trial. They have been litigated heavily and more or less continuously for much of the period since SKAT temporarily suspended all WHT reclaim payments in late 2015, bringing an end to all Solo Model, Maple Point Model and Klar Model trading activity. That litigation has included these proceedings and civil proceedings of various kinds in other jurisdictions, and criminal proceedings in a number of jurisdictions, including criminal cases in Denmark against some of the trial defendants. By the time of the Main Trial, Sanjay Shah, Mr Patterson and Mr Klar were all in custody in Denmark, although Mr Patterson was transferred during the course of the trial to a prison in this jurisdiction to complete his sentence here.

Mr Klar was convicted after a contested Danish criminal trial. Mr Patterson was convicted on his guilty plea entered at the start of what was to be a joint trial of the charges against him and the charges against Sanjay Shah. Mr Shah spent about 18 months in custody in Dubai fighting extradition to Denmark before being taken to Denmark in early December 2023. He contested the charges against him there, and his criminal trial proceeded in parallel, for him, to the Main Trial here. The conditions in which Mr Shah was held in Dubai were so restrictive as to make effective involvement by him in his defence of SKAT’s claims here all but impossible. The conditions of his detention in custody in Denmark were incomparably different, such that, thankfully, he was able to participate effectively in the final months prior to, and during, the Main Trial here. Given that, and his freedom to engage in the defence of the claims against him prior to May 2022, I was satisfied that the process overall was fair to him, the difficulties of his being in custody notwithstanding, and no application was ever made asserting otherwise so as to seek a dismissal, stay or adjournment of the proceedings against him or any part of them. Mr Shah was found guilty of the criminal charges pursued against him in Denmark, and was sentenced by the Danish criminal court, in early December 2024. He has appealed against that conviction and at the date of this judgment there has been no decision on that appeal.

The Danish criminal proceedings, then, explain why Sanjay Shah and Mr Klar gave evidence at trial remotely, from custody in Denmark. Had Mr Patterson given evidence at trial, that would have applied to him too. The threat of Danish criminal proceedings against the DWF Ds underlay their application, which I granted, to give their evidence at trial remotely from Dubai. At the first pre-trial review for the Main Trial, I refused their primary application which was that for the period scheduled for their factual evidence I should adjourn the trial and take evidence from them in Dubai, as a special examiner having appointed myself to that role for that purpose: SKAT (Sitting in Dubai) [2024] EWHC 19 (Comm).

Rajen Shah spent some time in custody in Dubai, partly on the initiative of the Danish authorities, very shortly before he was due to give evidence in the Main Trial. He was taken into custody in Dubai again just before oral closing argument, with a view to possible extradition to Denmark. Mr Head KC voiced understandable concerns over the fact and timing of both periods of remand in Dubai (the second of which continues at the date of this judgment), and the first resulted in an adjustment to the trial timetable in the interests of fairness to Rajen Shah. As in the case of Sanjay Shah, however, I was satisfied that the process overall remained fair, and no application was made asserting otherwise so as to seek a dismissal, stay or adjournment of the proceedings or any part of them.

In assessing the factual witness evidence, and what conclusions to draw from it, I had well in mind the strong likelihood that recollections may be faulty, both generally but particularly as to matters of detail: see Gestmin SGPS SA v Credit Suisse (UK) Ltd et al. [2013] EWHC 3560 (Comm) and many cases since. That said, in this case much turned more on why things were done, or not done, and in particular with what understanding (if any) of the legal effects of transactions or the workings of Danish tax law. Factual witness testimony as an element of assessing attitudes, working practices, or comprehension, had the capacity to be valuable, therefore, notwithstanding the fallibility of human memory.

I also found helpful, and adopted, the approach to judging a circumstantial case explained by Bryan J in JSC BM Bank v Kekhman et al. [2018] EWHC 791 (Comm) at [78]-[79], citing and in part developing what Teare J said in JSC BTA Bank v Ablyazov [2013] EWHC 510 (Comm) at [197]-[198]. It was also necessary in this case, when applying that approach, and generally, to bear in mind, and I did so, that disreputable though any dishonesty is, business people may engage in dishonest conduct for any number of reasons, and witnesses may fail to tell the whole truth, or may tell lies in their evidence, for different reasons. Contemporaneous dishonesty, or subsequent forensic dishonesty, does not necessarily come from, so as indirectly to evidence, awareness of the truth of some allegation made in legal proceedings; and in any event a finding of dishonesty, of contemporaneous conduct or in the witness box, is likely to be one of many elements in any given case, and does not reverse the burden of proof.

Having made those introductory comments in the main body of this judgment, I have indicated what I made of the factual witnesses who gave oral evidence at trial in Appendix 6, below, taking them in the order in which they were called. In Appendix 6, where I refer to trustworthiness, I refer to the assessment I made of whether, or how far, what was given to the court as their factual witness evidence at trial was an honest account of what the witnesses perceived, when giving evidence, to be their recollection (or lack of recollection) of matters of fact, including, where relevant, matters of their knowledge, understanding, belief, intention or thinking in the past. When judging the facts on the evidence as a whole, in the usual way I have borne well in mind that the testimony of a witness who was trustworthy, in that sense, still may be unreliable in whole or in part; the testimony of a witness who was generally trustworthy, in that sense, may nonetheless have been untrustworthy in certain respects, or in relation to particular topics; and the testimony of an entirely or generally untrustworthy witness may nonetheless be accurate (in whole or in part), respectively trustworthy, on some points.

In the case of some witnesses, what I say in Appendix 6 led me naturally into recording there, rather than only when I consider the factual case alleged against them in Appendix 7, my findings as to their contemporaneous knowledge or understanding of certain matters.

I should also say, for completeness, that when I refer in Appendix 6 to witnesses having adopted their witness statements as their evidence in chief, I mean to refer to their witness statements as may have been clarified or corrected orally in chief.

There was also written factual witness evidence from: