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

Mr Hoyle accepted that the notion was not limited to contracts, acknowledging that there could be other legal rights, for example statutory rights or rights under a trust, that justified receipt and retention. In the present case, payments were made by a public law body implementing decisions made by it, tax refund claim by tax refund claim, to pay in purported exercise of its public law rights and obligations. The normal doctrine of public law is that the purported exercise of such rights and obligations has legal effect in accordance with its terms unless and until quashed or set aside. Prof. Waage’s agreed expert evidence included his opinion on “the effect as a matter of Danish public law of SKAT’s purported rescission and/or reversal of payments … by declarations made by it in 2016”, which he set out in these terms:

“70.

It is the decision to make the payment that would be revoked (as a public law, administrative act). I should note that a Danish court does not in any sense effect the revocation as a judicial act. The revocation would be an administrative law decision made by SKAT itself (although as a public law act, revocation may be challenged before the Danish courts).

71.

The reversal of the payments would be achieved by SKAT bringing a private law claim for the restitution (i.e. reversal) of the payment made pursuant to the decision. The private law claim would typically be a monetary restitution claim or a claim seeking compensation for unjust enrichment.

72.

The principal effect as a matter of Danish law of SKAT’s purported revocation of its earlier payment decisions would be that SKAT could more easily bring a private law claim for the restitution of the payment. If SKAT had revoked its earlier payment decision, then SKAT would need only to point to that revocation as justifying its claim to be entitled to restitution of the payment – unless, of course, the recipient challenged the validity of the revocation in the … same proceedings. Once SKAT had revoked its earlier payment decisions, those earlier payment decisions could no longer be relied on by the defendants as a valid basis for the recipients of the supposed refund payments to retain them [emphasis added]. (I note here that payment decisions do not themselves give rise to obligations, without more. Thus an unexecuted payment decision would not in itself entitle the intended beneficiary of that decision to payment. It may, however, serve as evidence that SKAT was under an obligation to make the payment in question.)

73.

However, it would also be open to SKAT to bring a private law claim for the restitution of the payments without first taking the public law step of revoking them. It could do so by proving to the court that the original payment decision had been procured by fraud or made by mistake or was otherwise invalid and that the circumstances justified the court ordering restitution of the payment.

74.

It is important to note that, even without a decision to revoke the payment decision, SKAT always retains the option to file a private law claim in all cases. This means SKAT could always present an argument to the court that the recipient had no valid claim to be paid and that the money should, therefore, be repaid. In this scenario, there would not be a public law or administrative act in the form of a revocation decision revoking the initial (incorrect) payment decision upon which SKAT could and would centre its claim.

75.

If SKAT chose to proceed without revoking its earlier payment decision, it might find that the situation was more complicated than it needed to be, for instance, when trying to prove to a judge that SKAT had a valid claim for restitution. It is generally easier to refer to a validly revoked decision (which necessarily means there was no valid basis for payment) than to ask the judge to determine the validity of the payment in the private law action. However, if there is sufficient evidence that there was no basis for the original payment (because the original payment decision was invalid), and thus that SKAT is indeed entitled to a refund, there would be no need for the administrative law step of a decision to revoke. The court would determine on the available evidence that the payment had been procured by fraud or made by mistake or that the recipient for some other reason had no right to retain it, with the result that SKAT was entitled to the restitution of the payment made and would rule accordingly.”