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

Fecha: 02-Oct-2025

SKAT submitted that those and other cases were best viewed not as establishing a series of specific doctrines of attribution, but as illustrations, each ultimately on their own individual facts, of a

13.

SKAT submitted that those and other cases were best viewed not as establishing a series of specific doctrines of attribution, but as illustrations, each ultimately on their own individual facts, of a legal maxim that he who acts through another acts himself (which not so long ago might have been cited by an English judge, without giving a translation, as “qui facit per alium facit per se”). On that view, the key concept is that of agency, but not (or not limited to) agency by agreement for one legal person to represent or act on behalf of another (as here the Tax Agents’ agencies to submit tax refund claims on behalf of clients). The concept, SKAT said, was agency in the more general sense of instrumentality or means through which power is exerted or an end is achieved. A decision on the particular facts of any given case that D set out to cause C to be deceived (tricked by a false representation), using R as the means by which the misleading statement would be delivered to C that D wished C to receive, is necessary, on SKAT’s argument, to ensure that responsibility is not attributed, leading to primary liability in deceit, merely on a finding that D acted in some way that was causative of a misstatement being made by R to C. Such a decision should also be sufficient, SKAT submitted – the huge variety of human activity and the related limitless ingenuity of the dishonest make it unrealistic to require or to formulate anything more specific as the applicable principle.

14.

On that view of the law, in the well-known case of D making a representation to R, intending R to pass it on to C, the representation made by D to R is merely the means by which D achieves their intention, namely that C be deceived by a misrepresentation made to C by R. The liability attaches to the intent to deceive C by misrepresentation, achieved by D through R, not to the precise means by which, with that intent, D achieved the deception.

15.

Submissions were made on that by the Shah Ds and the DWF Ds that other trial defendants adopted. Summarising broadly, they submitted that:

(i)

there was no such overarching, single principle, but a series of specific, circumscribed situations in which liability has been recognised;

(ii)

one such situation is where a company director, acting fraudulently, directs, procures or authorises the company to make a false statement to the claimant (see C Evans & Son Ltd v Spritebrand Ltd [1985] 1 WLR 317, at 325-330, referred to by Foxton J in 4VVV), but that is not a true example as it was said in Lifestyle Equities CV v Ahmed et al. [2024] UKSC 17, [2025] AC 1, to be a case of accessory liability;

(iii)

another is what I referred to in paragraph 9 above as the well-known case of a representation by D to R, intending R to pass it on to C, but that did not apply to a defendant who, whatever else they may have done to bring about the result, made no representation to R (and the Shah Ds submitted that European Real Estate Debt Fund v Treon, supra, does not take the law any further than that);

(iv)

the only other is where D has manifestly approved of or adopted R’s representation to C (which the Shah Ds submitted required that D’s involvement should be apparent to C), in which D would have a primary liability if acting fraudulently: Bradford Third Equitable Building Society v Borders [1941] 2 All.E.R. 205 at 211B.