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

That is a complex passage, mixing matters of Danish public law with matters of Danish private law on restitution or unjust enrichment and matters of practical advice and Danish procedural law (rules of evidence in court proceedings). The sentence in Prof. Waage’s paragraph 72 that I have emphasised, read in isolation, might be thought to imply that unless and until revoked, SKAT’s decisions to accept and pay tax refund claims could be relied on as providing a legal basis justifying receipt and retention within Mr Hoyle’s explanation and generalisation of the English law trusts doctrine requiring rescission in contract cases before a trust may arise. However, in my view Prof. Waage’s evidence, quoted above, taken as a whole, is to the opposite effect, and the reference to putative reliance being placed by a defendant on an unrevoked payment decision is a comment about forensic practicalities or evidence, not a proposition of substantive Danish public law.

Therefore, if SKAT’s analysis of the rescission requirement in contract cases is correct, the doctrine giving rise to that requirement would have no application here. Then, under English law, a constructive trust would exist in respect of the proceeds of the fraud alleged by SKAT, had it proved that fraud, whenever those proceeds came into the hands of one of the fraudsters, even if that was long before SKAT’s July 2016 revocation of decisions to accept and pay the subject tax refund claims.