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

In re-examination, Mr Choo asked Mr Bains about some oddities of behaviour during cross-examination. Mr Choo drew attention to what had appeared to be difficulty in focusing on and answering simple questions, and frequent instances of talking to himself. In response, Mr Bains identified as neurodiverse, with a self-talking habit, a mild form of ADHD, and mild autism (with obsessive compulsive tendencies rather than a deficiency in social skills). There was no evidence of any formal diagnosis of ADHD or ASD, nor did Mr Bains suggest there had been any, although the suggestions of mild ADHD and mild autism had come, he said, from a qualified psychiatrist with whom he had lived for a time when he was in London. Mr Bains said that he had always seen those traits as making him “just a little bit eccentric” with a tendency to “lose focus quite easily, quite often”.

That would not be a sufficient basis for a finding of fact, on the balance of probabilities, that Mr Bains is affected by a particular neurodiversity condition; but any relevant burden of proof here is on SKAT, and in my view what Mr Bains said for himself, assessed with the benefit of the court’s general experience of dealing with mental health issues as they arise in civil and criminal litigation, makes it appropriate to give Mr Bains the benefit of doubt, so that (i) I treated the self-talking behaviour witnessed in court as normal for Mr Bains, irrelevant to any assessment of the honesty or quality of his evidence, and (ii) I have exercised special caution before taking non-responsive answers, digressions, or other failures to deal adequately with questions, as evasiveness or unwillingness to give straight answers.

Bearing all of that in mind in Mr Bains’ favour, I regret to say that I did not find him very satisfactory as a witness. There was a distinct pattern of clear, helpful and careful answers to easy or non-contentious points, and argumentative or non-responsive answers when questions moved towards sensitive, contentious matters, particularly from the start of the second day of cross-examination – Mr Bains was cross-examined for Days 64, 65 and 66, and the morning of Day 67, of the Main Trial. This built to a number of inventions – so obvious as to be, frankly, a bit shameless and embarrassing – including that: he thought CANs were trade confirmations, not payment credit advices; Sanjay Shah had told him that the cum-ex net settlement model discussed and developed at Solo in early 2012 had not been implemented and he (Mr Bains) did not realise that the CANs he signed (of which there were 189) related to trading under that model; he would not have been able to understand a Danish tax law opinion on the validity or invalidity of the tax refund claims the Solo Model trading was set up to generate; and he asked for but was refused a copy of Hannes Snellman’s opinion (the truth on that being, I am confident, that he never asked for it).