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

SKAT’s claim against Lindisfarne for damages for deceit therefore would have failed in any event.

Turning for completeness to Lindisfarne’s time bar defence, had it been liable in deceit, it was common ground that, reclaim by reclaim, any cause of action against Lindisfarne for damages for deceit arose when SKAT paid the claim, but the primary six-year limitation period for bringing proceedings did not begin to run until SKAT, acting with reasonable diligence, could have discovered Lindisfarne’s fraud (s.32(1)(a) of the Limitation Act 1980). Furthermore, it was common ground that if Lindisfarne deliberately concealed from SKAT any fact relevant to its putative right of action for damages for deceit, then SKAT would not be time barred so long as it commenced proceedings within six years of when, acting with reasonable diligence, it could have discovered the concealment (s.32(1)(b)).

The deceit claim against Lindisfarne was introduced by amendment, on terms that preserved any accrued time bar, only on 19 May 2023. As a consequence, the question for s.32(1)(a) was whether if, contrary to my decision, there was deceit by Lindisfarne, SKAT might have discovered that fraud, acting with reasonable diligence, prior to 19 May 2017. The only question for s.32(1)(b) was whether by a letter dated 15 July 2019, Lindisfarne deliberately concealed some fact or facts relevant to SKAT’s right of action against Lindisfarne in deceit, for that purpose assumed to have existed. That was a letter sent by Lindisfarne’s solicitors, on Mr Hogarth’s instructions and with his specific approval as to its contents, in response to a letter from SKAT’s solicitors threatening a deceit claim. The deceit claim was then introduced well within six years of Lindisfarne’s letter, so if it engaged in deliberate concealment, then the claim was necessarily in time under s.32(1)(b).

As regards s.32(1)(a), my finding would have been that the only piece of the puzzle missing for SKAT by early 2016 (never mind May 2017), if it wanted to sue Lindisfarne for deceit, was whether Lindisfarne appreciated at the time that its CANs were generated by trading structures involving the share-less settlement methodology that characterised the Maple Point Model business. I have no doubt SKAT, acting with reasonable diligence, could have obtained evidence that would have confirmed that within 2016, and certainly by mid-May 2017. I would therefore have held that, unless the limitation period was effectively extended by operation of s.32(1)(b), the deceit claim against Lindisfarne was time barred.

Turning to s.32(1)(b), Lindisfarne’s letter of 15 July 2019 included some falsehoods (as I would have considered them if I had found that Lindisfarne had acted fraudulently in the first place), namely that:

But that did not conceal anything relevant, deliberately or otherwise, from SKAT, even though as SKAT rightly submitted the purpose of the letter as a whole, and those particular statements within it, was no doubt to dissuade SKAT from escalating Lindisfarne to be an ‘Alleged Fraud Defendant’ (to use the language of SKAT’s pleadings). At the time, Lindisfarne was already a defendant, but so far as fault-based claims are concerned it was sued only on the basis of allegedly negligent misstatement in breach of a duty of care said to have been owed to SKAT.