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

I agreed with the submission by Mr Head KC in response to the application for permission to appeal that my ultimate finding, that SKAT was not induced, and all the individual findings I made in the relevant section of the judgment, were findings on a quintessentially factual issue. They were based on the evidence at trial, taken as a whole, including Mr Nielsen’s and Ms Rømer’s evidence, the market expert evidence, and the documentary evidence. In seeking permission to appeal, SKAT referred in particular to aspects of Mr Nielsen’s evidence that it said had not been challenged and that it submitted I had overlooked. I did not overlook any of that evidence. It was all consistent with the limited administrative function that Mr Nielsen (and Ms Rømer) explained, and I found, that he performed, that had no reference to what, as a matter of fact and legal character, the documents he was processing did or did not convey. It did not establish systemic reliance or begin to outweigh the evidence that enabled me to be clear that even the strong presumption of inducement in fraud was overwhelmed. I tackled the question of inducement on the correct assumption that, contrary to the finding in the judgment, the representations alleged by SKAT were made, objectively speaking, by each tax refund claim.

SKAT suggested that the description of the task that Mr Nielsen performed, given in the judgment at [559] as one way of articulating my finding about it, involved asking a wrong question, identifying a wrong counterfactual. It was suggested that I should have asked whether “if the Tax Refund Forms and supporting Credit Advice Notes containing the Dividend Payment Representation and Tax Representation had not been provided to SKAT, it would have paid out …”. That submission misunderstands the judgment at [559] which, as I just said, was part of my description of the task given to and performed by Mr Nielsen, leading to the relevant, dispositive finding of fact (as regards SKAT’s case of reliance by Mr Nielsen), which was that “… it was not part of his task to give thought to what the tax reclaim documents submitted to SKAT did or did not communicate. His was a clerical task in a bookkeeping department whose functions and responsibilities did not extend to deciding, or even knowing, the criteria upon which SKAT considered that tax refund claims should be paid, or assessing whether those criteria were met, claim by claim, or at all” (judgment at [560]).

In any event, SKAT’s proposed suggested counterfactual takes matters nowhere, unless it meant by it that I was bound to ask what would have happened if either no Form or no CAN had been submitted. I would have said that if for any given tax refund claim there had been either no Form or no CAN, then it would not have been processed by Mr Nielsen, meaning in turn that it would not have been paid. If it was impossible to make a tax refund claim, by an accurately completed Form and a CAN, without making the dividend payment representation or the tax representation (the representations cited in SKAT’s submission), then that might have been a pertinent finding. But that was not the position.