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

It was my assessment at trial that, through the fog of his feistiness in the witness box, the penny was starting to drop for Mr Hogarth that there was at least an argument that Lindisfarne CANs may have been capable of being misleading (cf paragraphs 20 to 22 of Appendix 6, above). I am satisfied, however, that that was not a thought he had at the time. On balance, I was likewise satisfied that Mr Baker did not consider at the time that the CANs said anything that might be misleading. His disreputable conduct in November 2015 gave me real pause for thought over that (see paragraph 24 of Appendix 6), but on the evidence as a whole I think the better view is that that was an aberration, out of character, and was not done because of any belief Mr Baker had that there had been anything deceptive about Lindisfarne’s CANs.

In my ruling at the end of the Main Trial on the unavailability to SKAT of an argument to found liability upon reckless indifference as to meaning, I reserved judgment on that point in the case of Lindisfarne (see paragraphs 2 to 6 above). I do not need to take a final view on the procedural fairness of considering such a liability in its case, however, because my finding of fact is that Messrs Hogarth and Baker in fact paid honest attention to what CANs in the format proposed would state and did not conclude that they would or might be misleading. Even if they should reasonably have come to a different view (a question to which I return, below, because as an alternative to deceit SKAT sought damages against Lindisfarne for negligent misstatement), there is no room for a finding of reckless indifference as to meaning, i.e. that Lindisfarne did not care whether its CANs would or might mislead SKAT.