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

I consider it misstates the effect of that question and answer to say, as SKAT contended, that Mr Klar conceded by it a belief at the time that the honest custodian representation would be or was being made. The custodian made no statement to SKAT, and the honest custodian representation, as alleged, was a representation, by the Tax Agent, that the custodian honestly believed the core representations to be true. Therefore, the question to be addressed was whether Mr Klar thought that the Tax Agents were impliedly telling SKAT that the custodians honestly believed the core representations to be true, those being statements not made in terms by any of the CANs and certainly not consisting of “facts stated in the [CANs]”. The answer Mr Klar gave to the very different question put to him did not show me that he would have answered the correct question in the affirmative; and on the whole of his evidence, I am confident he would not have done so.

For the reasons set out above, my findings in relation to Mr Klar are that he was aware of the contents of Salgado CANs and Form 06.003, and envisaged that in the Solo Model and Maple Point Model trading any CANs issued by custodians would be similar; but it did not occur to him, and he did not at the time understand, that any of the representations alleged by SKAT, or representations essentially to any of their effect, were being made to SKAT.

If Mr Klar had understood that something to the effect of the dividend entitlement and dividend payment representations, or the tax representation, was being said to SKAT, he would have believed that SKAT was being told something untrue. As regards the tax ownership representation, Mr Klar’s misguided notion of ‘beneficial ownership’ extended to the idea, in his mind, that a contract to acquire a shareholding was sufficient for Danish tax refund purposes to constitute share ownership. He therefore would have thought, genuinely but wrongly, that if the tax ownership representation was being made to SKAT, it was not being told something untrue.

As with Sanjay Shah and the DWF Ds, I would have considered that there was no real issue over whether Mr Klar intended SKAT to rely on the representations it alleged were made to it, if he had thought that they would be and were being made by the submission of tax refund claims.