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

SKAT noted that Mr Kenning was, by background and experience, a tax attorney in the US, with prior experience of div-arb trading (although there was no detail concerning that experience in evidence). It submitted that he “would therefore have known that SKAT would not pay out WHT refunds without the submission of documentation showing that the applicant owned shares and had received dividends on which it had suffered a withholding of tax”. Except that it perhaps encompasses the tax representation alleged by SKAT, a finding to that effect would not be a finding that Mr Kenning thought the representations alleged by SKAT, or statements to their essential effect, would need to be made to SKAT. I do not accept the submission on the facts anyway. An experienced US tax lawyer with at least some knowledge of div-arb trading would have no a priori reason to know or have any particular assumption about how any given national tax authority, in this case SKAT, approached tax refund claims.

The allegation of accessory liability through assistance pursuant to a common design would add nothing on the facts, as regards Mr Klar’s possible liability for deceit.

SKAT also alleged that Mr Klar was liable, as an accessory, for deceit in respect of all tax refund claims paid by SKAT that were generated by Solo Model trading in 2013, 2014 and 2015, and all tax refund claims paid by SKAT that were generated by Maple Point Model trading. The basis of liability alleged was the provision of more than minimal assistance in an alleged common design to defraud SKAT. Without doubt, Mr Klar provided more than minimal assistance, through Amalthea and Cork Oak for Solo Model trading during 2013 to 2015 inclusive and through Sherwood and Potala for Maple Point Model trading. If my findings of fact had led to conclusions that SKAT was misled into paying tax refund claims, as it alleged, and that Mr Klar was privy to a common design to deceive SKAT, liability would have followed. But they did not.

I have not lengthened this Appendix with any hypothetical consideration of SKAT’s further or alternative claims against Mr Klar.