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

The conduct element of accessory liability in tort is discussed in Accessory Liability, supra, at pp.188 to 202. As explained from p.194, what precisely the law means by the inducement or procuring of a tort is somewhat obscure on the authorities; but it can be said, negatively, that English law does not consider mere ‘assistance’ to be sufficient, essentially because the firm view is taken that proof that something the defendant did was causative of the commission of a tort by another should not be sufficient, even if it be shown also that the defendant realised at the time that the tort would result from what they did. The general sense, hampered it may be by a lack of a suitable single word of adequate or sufficiently precise meaning, is that the defendant must have not merely caused or assisted, but must have incited, persuaded or encouraged the primary tortfeasor to do that which constituted their tort. The Editors of Clerk & Lindsell admirably attempt a single-word encapsulation, namely that “where one person instigates another to commit a tort, they are joint tortfeasors …” (24^th Ed., para.4-04 at n.12, citing three of the many cases discussed by Professor Davies). They make clear that that case and the case of persons who share in the commission of a tort in furtherance of a common design are the two forms of accessory liability known to the law, for each of which the defendant “must know the essential facts which make the act wrongful, even if the tort is one of strict liability” (ibid at n.13b, citing Lifestyle Equities, supra).

The utility of considering liability issues that would have arisen only if SKAT’s claims had not failed at multiple prior stages, and in truth my ability sensibly to consider such issues, has its limit. As regards the case against Mr Shah, I consider that this point in this Appendix is close to that limit, so in what follows I take things very shortly.

SKAT would have had to establish as regards (i) Syntax, (ii) SCP, or (iii) the USPFs / LabCos, that they had acted fraudulently in relation to a pleaded misrepresentation that SKAT had proved, and by which it had shown that it was induced into paying tax refund claims.

As regards Syntax and SCP, that would have followed from whatever findings I had made concerning Mr Shah’s knowledge and intentions, as the directing mind and will of Syntax from 19 September 2014 (as I would have found, that being the date on which Mr Shah became UBO of 82% of Syntax and effectively took over direction of its operations) and as the directing mind and will of SCP throughout, respectively.

For completeness, I perhaps should add that cases in which a corporate entity has committed fraud through the actions of an individual who was its directing mind and will, and the individual has been held personally liable, have sometimes been analysed as cases of joint tortfeasorship through a common design, the individual being held unable on the facts of the case to avoid personal responsibility for what they did by saying that they were acting for the company in doing it. It would make no difference here if that were the preferred analysis, save that strictly it would qualify my seemingly unqualified rejections, above, of a common design theory for accessory liability on the part of Mr Shah.