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

In my judgment, it reads too much into that answer to say that Mr Shah agreed anything by it as to what precisely, on its own or when submitted to SKAT, a CAN would state as regards the nature or meaning of the ‘tax’ amount stated in it. On the more general point (the natural sense of a CAN), Mr Shah did not in his evidence make anything of the possible point of distinction that I noted in the wording of the SCP CANs (their narrative statements describing what they were reporting), but I should also note that Mr Rabinowitz KC put the case to Mr Shah in relation to that on the basis that the SCP CANs “used ambiguous language …, like payment that represents the dividends”, although no case of the deliberate use of ambiguity in order to deceive was pleaded.

In my judgment, Mr Shah did not focus on the precise language of CANs. He regarded them as generic documents, and he was obviously aware at the outset of Solo Model trading that the SCP CAN had been copied from the form of CAN issued by Merrill Lynch in the Broadgate transaction, which involved cum-ex trades in which the payment will have been a dividend compensation payment. Further, I accept the evidence of Mr Horn, Rajen Shah, and Mr Klar to the effect, in each case, that they thought the CAN merely recorded and reported the basis on which the net amount to be credited had been calculated. I do not accept that Sanjay Shah was as removed from the detail or reliant on others, particularly (at the time) Mr Horn and Rajen Shah, as he (Sanjay Shah) tried to portray in his evidence. However, I think it unlikely that he had a decidedly different understanding of what a CAN was, and what it did and did not state, than they had.

Overall, on balance, I was not persuaded that Mr Shah thought at the time that the tax representation, or its essence, would be made, or was being made, by the tax refund claims submitted to SKAT.