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

SKAT also alleged that each CAN itself made to SKAT the core representations set out in paragraph 457 above, plus an implied representation that the CAN was an honest and accurate statement by the custodian issuing it of the facts set out in it (the ‘honest custodian representation’). The Further Information clarified that the honest custodian representation alleged by SKAT was in fact only, and more narrowly, a representation that the custodian had issued the CAN with an honest belief as to the truth of the core representations as (allegedly) made by the CAN. In final argument, having reviewed the trial transcripts, SKAT withdrew reliance on the honest custodian representation against Mr Horn, because in Mr Horn’s case Mr Graham KC said that he had not dealt with it sufficiently in cross-examination.

In my judgment, it was a misguided and unnecessary complication for SKAT to plead representations made to SKAT by CANs as some separate or additional case. It was always said by SKAT, rightly so, that any representations made to it as a result of what was stated in a CAN were made because of the content of the CAN, interpreted as a document received by SKAT in support of a claim for a Danish dividend tax refund. A question might arise whether a custodian issuing a CAN could have a primary liability arising from what it stated to its equity buyer client by issuing a CAN to it, if the CAN was submitted to SKAT. But that does not mean that focusing on a CAN, to the exclusion of the tax reclaim form with which it was submitted, is a worthwhile exercise when considering what, if any, representations were made to and relied on by SKAT. In my judgment, it is not, indeed it is not in truth a meaningful exercise. As the DWF Ds put it in their written closing submissions, “It makes no sense to speak of any representation to SKAT that could arise from a [CAN] other than as part of a WHT Application, given that each [CAN] was only ever received and read by SKAT together with the other WHT Application documents that accompanied it”.

SKAT also pleaded implied representations that the Tax Agent’s named client had an honest belief as to the truth of the core representations, as (allegedly) made by the tax refund claim documentation, and that the signatory of a CAN (where the CAN was signed) believed the representations (allegedly) made by the CAN to be true (including the alleged honest custodian representation). In its written closing submissions, SKAT withdrew reliance on either of those as a representation said to found any cause of action. It was said that SKAT did not concede that those further alleged representations were not made, or could not have founded a claim, but considered that they could not add anything. I make no comment on that. All that matters for my purposes is that the further alleged representations were not pressed in closing, so I do not need to deal with them.