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

Fecha: 02-Oct-2025

F.2.2 The Pleaded Case

F.2.2 The Pleaded Case

539.

Before dealing further with the facts, I now summarise how SKAT’s case as to inducement was pleaded. References in what follows are to the Particulars of Claim unless otherwise indicated.

540.

At paragraph 20, it was alleged that “… SKAT in fact understood … the [core representations] to have been made, given: (i) the terms of the … Form completed by the Agents …; (ii) the terms of the covering letter provided by the Agents …; and (iii) the terms of the [CAN(s)] provided with the … Form …; and (iv) the fact that such documents were being submitted to SKAT as part of [an application] seeking to reclaim WHT deducted by a Danish company in respect of a dividend purportedly received by the [named client].” Paragraph 22 added (so far as material) a plea that SKAT in fact understood the honest custodian representation to have been made in each instance, given the terms of the CAN(s) and the fact that the CAN(s) “were being produced for the purpose of being submitted to SKAT as part of [an application] seeking to reclaim WHT deducted by a Danish company from a dividend purportedly received by the [named client] on shares owned by it.”

541.

In respect of both of those pleas, in the Further Information to which I referred when considering whether, objectively, the representations were made, SKAT pleaded thus, as to whether its case was that any natural person at SKAT “was actively aware” of the representations alleged: “It is SKAT’s case that Mr Sven Nielsen was actively aware of the representations at the material times.” In a different set of Further Information Responses, in answer to a Request served by the SSDs, SKAT said its case was that Mr Nielsen at the time had a conscious understanding that the CANs he dealt with conveyed what SKAT alleged that they conveyed (by the preparatory plea quoted in paragraph 456 above). The RFIs anticipated argument at trial over whether liability for deceit requires contemporary conscious awareness on the part of the claimant of the allegedly deceitful misrepresentation; so they did not ask in simpler, more traditional terms, by whom (which individual(s)) SKAT alleged that it “in fact understood” at the time that each representation was being made. Nonetheless, the Responses left no doubt that SKAT’s case that it in fact understood the representations to be being made was confined to a case that Mr Nielsen had that understanding, and the trial was conducted on that basis.

542.

At paragraph 25, it was alleged that, “In reliance on the [representations alleged] (and acting under a mistake of fact induced thereby), SKAT paid DKK12.091 billion, which it would not otherwise have done”, with brief particulars breaking the figure down into the aggregate amounts respectively paid to each of the four Tax Agents (DKK4.282bn to Goal, DKK3.043bn to Syntax, DKK1.22bn to Koi, and DKK3.544bn to Acupay). At paragraph 63, it was said that the fraudulent misrepresentations made to it (as SKAT alleged) “were material and were likely to induce, and in fact induced, SKAT to pay DKK9.025 billion … in respect of the Solo WHT Scheme, DKK2.745 billion … in respect of the Maple Point WHT Scheme, and DKK321 million … in respect of the Klar WHT Scheme, which it would not otherwise have done. Paragraph 25 above is repeated.”

543.

SKAT was asked by the DWF Ds to clarify the plea at paragraph 63 by giving “full particulars of the allegation that [the alleged] misrepresentations [and each of them] [(i)] were “material”; and [(ii)] “in fact induced” SKAT to make the payments alleged.” In response, SKAT pleaded, respectively, that:

(i)

“The allegations that the representations were “material” is a matter of law, to be the subject of submissions in due course.”

(ii)

“The representations caused SKAT to make the payments alleged, which it would not otherwise have done. This will be addressed further in evidence.”

544.

The case opened by SKAT at the Main Trial was that:

(i)

the ultimate question was whether any representations, if proved, caused SKAT to make payments in response to tax refund claims;

(ii)

they “evidently did” since the tax reclaim process required documents that made those representations to be submitted to SKAT and, “Quite simply, SKAT would not have made the payments but for the signed and completed [Forms] supported by CANs containing the [representations] … . Further, if Mr Nielsen had been told that the [Tax Agent’s clients] did not own the shares, receive the dividends or suffer the withholding of tax in the WHT Applications, he would have rejected them.”;

(iii)

if there is a requirement of conscious awareness of a representation:

(a)

the representations SKAT alleged were actively present in Mr Nielsen’s mind and materially influenced his decision to accept the tax refund claims;

(b)

Mr Nielsen relied on those representations by taking information from the completed Form and supporting CAN(s) and entering it into the 3S system at SKAT for it to generate a report that resulted in payment of the claim;

(c)

alternatively, Mr Nielsen relied on the representations in a “quasi-automatic” sense (i.e. subconsciously) as contemplated by Cockerill J in Leeds City Council, supra, at [113], [148], and in Loreley, supra, at [388];

(d)

if necessary, there was reliance by SKAT through Mr Nielsen’s claim processing activity even if that was purely mechanistic. Although SKAT did not spell this out, that was of necessity an alternative case of conscious design, an allegation that the ex hypothesi mechanistic and unthinking task delegated to Mr Nielsen (unthinking, that is, so far as concerns the issue at hand) was the means by which SKAT chose to deal with tax refund claims under the Form Scheme because the view was taken that a correctly completed Form, if supported by a CAN, would make to SKAT the representations alleged.

545.

SKAT thus opened four alternative cases:

(i)

a primary case that in substance simply invoked the presumption of inducement (paragraph 544(ii) above), but polluted slightly by positing what would have happened if Mr Nielsen had been given full disclosure of the true position rather than what would have happened if there had been no representation;

(ii)

a first alternative case that, consciously aware of them as representations made by the reclaim documents, Mr Nielsen relied on them each time he decided to put a claim through the 3S system so it would be paid (paragraph 544(iii)(a)/(b) above);

(iii)

a second alternative case that Mr Nielsen could be said to have relied on the representations subconsciously, putting together the fact that they were made by the documents (objectively considered) and Mr Nielsen’s understanding of what gave rise to an entitlement to a tax refund (paragraph 544(iii)(c) above);

(iv)

a third alternative case of systemic reliance, completed by Mr Nielsen’s mechanistic processing (paragraph 544(iii)(d) above).