CL-2018-000297, CL-2018-000404, CL-2018-000590, - [2025] EWHC 2979 (Comm)

It is true, as SKAT submitted, that in the judgment at [521], I set out my conclusion as to whether any of the representations alleged by SKAT was made, objectively speaking, by ‘Form + CAN’, properly interpreted in context. Adding what I said at [524], to which it was not suggested that there could be any challenge on appeal, that conclusion was fatal on its own to all of SKAT’s claims.

Since the test I applied was the test SKAT proposed and articulated (not that it was in dispute), that conclusion is, I think, correctly characterised as a conclusion of fact, not law. It was closely bound up with the factual context, some elements of which that SKAT suggested were favourable to its case were highlighted by SKAT’s submission in support of permission to appeal. As Mr Head KC submitted in response, the material context was an important part of the trial, to which the DWF Ds in particular fairly paid substantial attention in argument (although they were not alone in that). He was correct also to submit that I largely accepted his detailed submissions on that topic.

My findings about the factual context included important findings about what CANs were well understood not to state, and that a tax authority such as SKAT would have known as much. None of them is realistically susceptible to challenge on appeal, nor did SKAT propose that it could seek to challenge them. But in the absence of any such challenge, I did not consider it realistic to propose that my conclusion as to whether the representations alleged by SKAT were made might be wrong.

I therefore would have refused permission to appeal on Ground 1 in any event. I would also have refused permission to appeal on Ground 1, come what may, as regards the dividend payment representation, because SKAT was seeking by Ground 1 to divorce it from the dividend entitlement representation, contrary to the case it pursued at trial. In my view, it is neither open to SKAT, nor arguable by it, that the dividend payment representation it alleged was made, given that (as Ground 1 now concedes) the dividend entitlement representation was not.

As regards the honest custodian representation, SKAT by Ground 1 in my view again sought to reinvent the case it ran at trial. At trial, it conceded and averred that the only relevant direct representor to SKAT was the Tax Agent, so if there was to be a credible case for a representation to SKAT concerning the custodian’s honesty, it was and could only be a case that the Tax Agent made some such representation. I would therefore have refused permission to appeal on Ground 1 in any event as regards primary claims based on the alleged honest custodian representation.

Finally, I note that the case SKAT was proposing to take to the Court of Appeal on representations was, in a significant sense overall, different from the pleaded case it pursued at and through a very long trial. I found it not inconvenient to identify, analyse, and reach conclusions upon, SKAT’s case that representations were made, by describing as separate representations, the tax ownership representation, the dividend entitlement and payment representations, and the tax representation (as set out in the judgment at [457]). It was no coincidence that I set them out in that order, however.

There was a real sense, on the pleaded case and on the case opened and pursued through the testing of the factual witnesses by SKAT, that

It seems to me there is a real risk that now to entertain, on appeal, primary claims that proceed on the basis that, as held at trial, the tax refund claims submitted to SKAT did not represent that the Tax Agent’s client had been the tax owner (or any kind of owner) of shares and did not represent that the client had received a dividend entitlement, as Danish tax law would have it, yet made the dividend payment representation and the tax representation, is to entertain a materially different case than SKAT brought to and pursued at trial. If I had thought that on its own terms there was anay real substance to Ground 1, I would have wanted that to be addressed further by the parties before making a decision whether to grant or refuse permission to appeal on it.