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

a clear purpose of the Lindisfarne CANs (in fact, their sole purpose) was to be provided to SKAT as part of tax refund claims made by or on behalf of the respective clients to whom they were issued;

Lindisfarne knew and understood that its CANs at the very least might well be provided to SKAT as part of such claims (and in fact, Lindisfarne understood at the time that they would be provided to SKAT with any tax refund claims made, and expected such claims to be made, knowing as it did that the generation of such claims was the entire commercial purpose of the trading);

Lindisfarne chose not to include any disclaimer against reliance, or in particular against third party reliance, in its CANs, no doubt (SKAT said) because such a disclaimer would prevent them being used to support tax refund claims;

it was reasonably foreseeable to Lindisfarne that SKAT would rely on its CANs, since they were, and would appear to SKAT to be, formal confirmation of facts within Lindisfarne’s first-hand knowledge and not within SKAT’s, issued by an FCA-regulated UK custodian without any words of qualification;

the Lindisfarne CANs could not to Lindisfarne’s knowledge be checked by SKAT even SKAT wanted to do so, since they recorded matters which occurred solely within Lindisfarne’s own transaction records.

Lindisfarne intended SKAT to rely upon the core representations, as (SKAT said) without such reliance it would not receive the majority of its anticipated profits from acting as a custodian in relation to the Maple Point Model trading; and

Lindisfarne knew or ought to have known that SKAT would suffer losses if the core representations were false in that it would then have made ‘refund’ payments that would not have been made if Lindisfarne had exercised due care and skill so that those representations would not have been made.

the sole purpose of the Lindisfarne CANs, as SKAT submitted, was to be provided to SKAT as part of tax refund claims made by or on behalf of the respective clients to whom they were issued;

Lindisfarne did understand at the time, as SKAT claimed, that its CANs would be provided to SKAT with any tax refund claims made, and did expect such claims to be made, knowing as it did that the generation of such claims was the purpose of the trading;

Lindisfarne did not include any express disclaimer against reliance, or third party reliance in particular, but I do not accept SKAT’s submission that that was because such a disclaimer would prevent them being used to support tax refund claims. There was no basis in the evidence for such a finding. In my view, Lindisfarne had no reason to suppose that if its CANs included an express disclaimer they could not have been used, and (through Messrs Baker and Hogarth) its actual thinking at the time was that an express disclaimer was not needed because its CANs were evidently not ‘tax vouchers’ of the kind to which I referred in paragraph 453(v) of the main body of this judgment;

Lindisfarne’s CANs were, and would appear to SKAT to be, payment advices issued by an FCA-regulated UK custodian to its clients, without any words of qualification, but that does not make it foreseeable to Lindisfarne that SKAT would rely on the CANs as evidence of the nature or basis of the reported payments, when they were evidently not tax vouchers of the type tax authorities require when seeking to have financial institutions certify things for them;

it was not known to Lindisfarne, nor should it have been, that in relevant respect its CANs could not be checked by SKAT because they recorded matters which occurred solely within Lindisfarne’s own transaction records. SKAT could readily have chosen only to pay claims supported by details of, and evidence confirming, the trading underlying the CANs, against which to check any notion the CANs might have conveyed as to the nature and basis of the reported payments. That said, it was obvious to Lindisfarne – and I find it did realise at the time – that full trading records, or even full account statements, were very probably not going to SKAT in the ordinary course of things, because otherwise there would be no point to the CANs and they would surely not have been asked for;

Lindisfarne did intend SKAT to rely upon its CANs as confirmation that the client’s account had been credited with the net amounts shown, and I think it fair to say that Lindisfarne was aware that the majority of its anticipated earnings from acting as a custodian in relation to the Maple Point Model trading would only be realised if the trading worked in the practical sense that SKAT accepted and paid the resulting tax refund claims. But that does not mean Lindisfarne intended SKAT to rely upon its CANs as evidencing the nature and basis of the reported payments, and I find that Lindisfarne did not so intend. (That is not, I add for completeness, inconsistent with the fact that Lindisfarne realised that SKAT was not routinely demanding full trading records or monthly accounts);

it is an obvious truth that Lindisfarne could reasonably have appreciated that SKAT would suffer loss if it paid out on tax refund claims that were not valid under Danish tax law, but in my judgment Lindisfarne had no reason to suppose that SKAT was or might be relying on Lindisfarne taking care over what it said in its CANs in order to avoid suffering such loss.