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

It was also submitted by the DWF Ds that SKAT, having originally alleged deceit against the Tax Agents, could not rely on a doctrine of action through an innocent ‘agent’ merely by no longer pursuing that allegation, and (by way of Catch-22) neither could SKAT ask the court to find that any party not now before it as a trial defendant had acted fraudulently. I do not agree with either limb of that submission. As to the first limb, if the doctrine propounded by SKAT is sound, its purpose and effect is not to render it necessary for the claimant to prove that the ‘agent’ was innocent, but to render it unnecessary to consider that question, because the defendant will be liable either way, if the premise for liability articulated in the first sentence of paragraph 10 above is proved. As to the second limb, if the liability of a defendant before the court requires, in principle, that some third party not before the court be liable, the third party’s liability simply becomes something the claimant must prove, if it can. The absence of the third party from the legal proceedings may affect the evidence available to the claimant, but is not an impediment as a matter of principle.

I preferred SKAT’s submissions on this point of principle, and I would have directed myself that if on the facts any given trial defendant had deliberately arranged things so that SKAT was induced to act upon a misrepresentation made to it by a Tax Agent, the defendant in effect using the Tax Agent as means by which to achieve their (the defendant’s) goal of causing SKAT to be so misled, the defendant knowing the representation that would be and was made to be false, or not having an honest belief in its truth, then SKAT would have been entitled to damages for deceit against that trial defendant, whether or not the Tax Agent was (also) acting fraudulently.