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

As to whether any representations were made, and if so what representations, it was uncontentious at trial that in law a representation is a statement made to the representee on which it is intended and entitled to rely as a positive assertion by the representor that the matter stated is true. That means a question can arise as to the characterisation of a statement, not just as to its meaning: “Until one has decided that, in the circumstances of the particular case, [a] statement should be treated as a representation rather than, say, a contention or argument, any question of liability for misrepresentation cannot arise” (per Neuberger LJ, as he was then, in Kyle Bay Ltd t/a Astons Nightclub v Underwriters [2007] EWCA Civ 57, at [32]).

SKAT put its case on the basis that the representations it alleged were made by the documents submitted to it, construed objectively in their context, for which purpose the question to be asked was what impact the content of the documents, given their context, might be expected to have upon a reasonable representee in the position and with the known characteristics of the actual representee (applying the test stated in Casa di Risparmio della Republica di San Marino SpA v Barclays Bank Ltd [2011] EWHC 484 (Comm), per Hamblen J, as he was then, at [215]). In the present context of claims, using the Form Scheme, to be paid a refund of Danish dividend tax, the only possible putative representee was SKAT itself. It is thus convenient (and shorter) to speak simply of SKAT, acting reasonably, rather than of the reasonable representee in the position and with the known characteristics of the actual representee, namely SKAT.

A representation may be implied where although no statement to the effect of the representation is made expressly nonetheless clear words and/or conduct on the part of the representor convey such a statement in the equivalent objective sense, namely (here) that SKAT, acting reasonably, would be expected to take from what was said and/or done that something was being stated to it on the truth of which it was intended to rely as a positive assertion of the truth of the matter stated. I gave a very brief summary of the law as to that in SKAT v Goal Taxback [2020] EWHC 1624 (Comm), [2020] 4 WLR 98, at [114]-[115]. There were submissions in closing argument by reference to, among others, DPP v Ray, supra, Gordon v Selico [1985] 2 EGLR 79, Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15, Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] EWCA Civ 355, [2018] 1 WLR 3529, The C Challenger, SK Shipping Europe Ltd v Capital VLCC 3 Corp et al [2022] EWCA Civ 231, and various first instance cases considering implied representations alleged in the context of banking transactions. In my judgment, those submissions did not affect the accuracy or sufficiency for present purposes of my short summary.

SKAT pleaded that the representations it alleged were “partly express and partly implied”, but the only conduct on which SKAT relied was the submitting of the documents so as to make, as SKAT put it, “an application for the refund of tax supposedly withheld from dividends supposedly received on the Danish shares identified in the application”. It was plainly the case in each instance that a claim was being made, by the submitted Form and supporting materials, for a refund of Danish dividend tax; and that is the pleaded context in which those documents fall to be construed. As a result, there is no meaningful distinction here between asking what the documents would have conveyed to SKAT, acting reasonably, given their terms and the context, and what was impliedly stated to SKAT by submitting a dividend tax refund claim with those documents in support, by way (in either case) of a positive statement as to the truth of some matter upon which it was intended that SKAT should rely.

There can be liability in deceit where a statement is made, intending thereby to convey a falsity that, on that objective approach, would not be said to have been conveyed. No such case was pleaded here, however, and it was accepted by SKAT that if, objectively, the tax reclaim documents submitted to it did not convey the falsities it alleged, then all of its pleaded claims failed. Specifically, SKAT accepted in closing argument that on the case pleaded and pursued at trial, each claim it pressed against each trial defendant (a) required it to establish one or more of the pleaded representations, and therefore (b) failed in limine if, objectively, none of the pleaded representations was made. The first part of that is true because the many causes of action other than for damages for deceit that were pursued by SKAT all required deceit to have been committed, as alleged by SKAT, save only that there was a claim against Lindisfarne for damages for negligent misstatement, but that was still founded upon the same set of alleged representations said to have been made to SKAT (or a sub-set of them). For example (as to the general point, not the specific point about Lindisfarne), unjust enrichment claims were pressed, but only on the basis that SKAT had paid claims under a mistake induced by the fraud it alleged, if it proved that fraud; or again, knowing receipt, dishonest assistance and proprietary claims were made based on alleged constructive trusts, but the trusts alleged were trusts said to arise in respect of the proceeds of the fraud SKAT alleged, if it proved that fraud.

I noted at paragraph 104(ii) above that almost all of the 4,170 tax reclaims in the case were made on Form 06.003, the then current form published by SKAT for the purpose. To the extent SKAT pleaded reliance on the contents of the Form, it did so by reference only to Form 06.003. It would not be appropriate to entertain a case that any of the pleaded representations was made when Form 06.008 was used, if it was not made when Form 06.003 was used. Furthermore, if a pleaded representation was made when Form 06.003 was used, but only because of language in that Form that was not in Form 06.008, in my view any claim based on that representation in the Form 06.008 cases should be dismissed even though the equivalent claim for Form 06.003 cases would not fail in limine in that way.