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

Fecha: 02-Oct-2025

For its part, Lindisfarne submitted, by way of positive case against the imposition of any duty of care, that

215.

For its part, Lindisfarne submitted, by way of positive case against the imposition of any duty of care, that:

(i)

It produced CANs and full monthly reports for its clients, not for SKAT. That is true up to a point, but it only produced the CANs, in addition to full monthly reports, so that via the Tax Agents they would go to SKAT.

(ii)

Lindisfarne “had no knowledge of, or involvement in, the WHT reclaim process and it expected both its clients and SKAT to take such steps as necessary to satisfy themselves of their entitlement to a WHT refund (if any).” That overstates the depth of Lindisfarne’s ignorance, since it realised that its CANs routinely went to SKAT and that full trading records or monthly accounts very probably did not. Nonetheless, I accept the submission as to Lindisfarne’s expectation. I find that is what Messrs Baker and Hogarth expected, and in my judgment it was a reasonable expectation.

(iii)

Lindisfarne “did not make any representations to SKAT in its DCAs. Any representations were made by the [clients] only, which appear to have divorced the DCAs from the Monthly Reports.” It is true that Lindisfarne did not itself make representations to SKAT in or by its CANs, and that any representations made to SKAT were in fact made by (strictly) the Tax Agents acting expressly on behalf of the clients; but that is not itself a significant factor in the present context given the purpose, known to Lindisfarne, of issuing the CANs. It is not true that the clients (or the Tax Agents) ‘divorced’ the CANs from the monthly reports. The CANs were asked for and issued, as Lindisfarne appreciated, to go to SKAT on their own, not married to the monthly reports.

(iv)

SKAT had a policy not to approach third parties, such as Lindisfarne, for information – the submission implicitly being (this was not spelt out) that Lindisfarne did not know or have reason to know that at the time. This was a misplaced submission. It was based on evidence given by Mr Ekstrand, which was somewhat surprising but I have no reason to doubt it, that there was a policy of that sort that applied to the suspected fraud investigation in late 2015 and 2016. I could not find that there was any such policy relating to SKAT’s ordinary processes; the BT Opera episode discussed in the main body of this judgment (at paragraph 582ff) is to the contrary, and SKAT had a specific statutory right under s.69B of the Danish WHT Act to require the provision of information;

216.

The submission for Lindisfarne, in conclusion, was that it was not reasonably foreseeable to it that SKAT would rely on its CANs:

“a.
without the Monthly Reports;
b.
without appropriate context from the clients/agents in the WHT Applications;
c.
without making further enquiries to satisfy itself of any entitlement for a refund; and
d.
in relation to matters on which the DCAs did not purport to express any view, such as tax matters (the DCAs [being], quite obviously, not tax vouchers).”

217.

It will be apparent from the foregoing that I do not accept point (a). However, points (b) to (d), which do not require point (a), are correct. It reasonably did not occur to Lindisfarne that its CANs might be regarded by SKAT as sufficient to establish entitlement to anything under Danish tax law. That would have been my conclusion in any event, but all the more so since SKAT did not use the established method of requiring formal tax vouchers if it was looking to financial institutions to certify anything for them. It was reasonable for Lindisfarne to think that express disclaimer language was not needed.

218.

I would therefore have dismissed in any event SKAT’s negligence claim against Lindisfarne. The question of breach would not have arisen, but my finding on the facts would have been that it was reasonable for Lindisfarne not to identify as a possibility that its CANs might be thought to convey any statement to the effect of the tax ownership representation, the dividend entitlement representation, or the dividend payment representation. My further finding would have been, on balance, that it was reasonable for Lindisfarne not to realise that its CANs might be taken to convey a statement to the effect of the tax representation. I consider that Lindisfarne ought to have seen that its CANs might be thought to convey that the payment credit in the net amount reported related to an entitlement of some kind to the gross dividend amount stated, which could mislead since there was no such entitlement under the transactions being cleared and settled by Lindisfarne. But that is not the breach of duty alleged, since it does not translate to the tax representation (or its essence).