Skatteforvaltningen v Solo Capital Partners LLP & Ors

Mr Justice Andrew Baker : Introduction

1. After a long trial conducted between 9 April 2024 and 10 April 2025, I gave judgment in these consolidated Claims on 2 October 2025: [2025] EWHC 2364 (Comm). The orders to be made on that judgment and applications consequential to it were considered at the judgment hearing, which took up two full days.

2. The judgment concluded that SKAT had not made good any of the claims it pursued at trial upon which liability was in issue, and quantified SKAT’s entitlement under a default judgment against one defendant (Syntax GIS Ltd).

3. The order dated 3 October 2025 made on the judgment and consequential applications (‘the Order’) defined the ‘Liability Defendants’ as the trial defendants identified in paragraph 30 of and Appendix 1 to the judgment, other than Syntax and the six defunct corporate defendants referred to in the judgment at [612]. Paragraph 1 of the Order, then, gave judgment for the Liability Defendants, and each of them, dismissing all claims against them in these proceedings, and finally dismissed all of those claims.

4. One application made at the hearing was an application by SKAT, the scope of which I identify below, for permission to appeal that general dismissal of its claims. I refused that application, stating my sufficient conclusion for that purpose that there was, in my view, no more than a fanciful prospect of success for SKAT in seeking to overturn the conclusion in the judgment that it had not been misled.

5. Pursuant to CPR 52.12(2)(a), I directed that any appellant’s notice for an appeal by SKAT against paragraph 1 of the Order was to be filed in the Court of Appeal within 28 days after I handed down further reasons in writing for my refusal of permission. This further judgment, handed down remotely, sets out those further reasons. By my calculation, the last date for SKAT to file any appellant’s notice against paragraph 1 of the Order is therefore now 12 December 2025.

6. I decided to use written reasons to be handed down later for a fuller explanation of my decision to refuse permission to appeal, firstly, so as not to take up time at the hearing, at which there was much else to deal with and a strong general interest in dealing with everything (if possible) without a further hearing. Secondly, I wanted to reflect on how much more I could and should say about SKAT’s proposed grounds of appeal. Thirdly, the proposed appeal for which SKAT sought permission cast something of a spotlight on some of the issues raised at trial with which I did not deal in the judgment, either at all or fully, because they did not arise for determination, SKAT’s claims having failed for logically prior reasons.

7. In relation to that third aspect, SKAT encouraged me to consider supplementing the judgment in the interests of at least reducing, if not eliminating, the scope for an appeal to result, if successful, in some need for further proceedings in this court. It was also recognised by SKAT that if I felt it appropriate to supplement the judgment, that might affect the prospects of there being any successful appeal and, therefore, might be relevant to the final decision that SKAT must make on the extent of and grounds for any appeal for which it now seeks permission from the Court of Appeal, if it does make such an application. The Proposed Appeal

8. The application by SKAT for permission to appeal was for an appeal with limited scope, as compared to the scope of the claims pursued by SKAT at trial. Thus, SKAT sought permission to appeal against: (i) the dismissal of its claims for damages for deceit against (only) Sanjay Shah, Mr Horn, Rajen Shah, Mr Klar, Mr Patterson and Mr Jain (to whom I shall now refer, collectively, as the ‘primary respondents’), and then: (a) in the case of Mr Patterson and Mr Jain, only its deceit claims alleging deception by the dividend payment representation or the tax representation; and (b) in the case of Sanjay Shah, Mr Horn, Rajen Shah and Mr Klar, only its deceit claims alleging deception by the dividend payment representation, the tax representation or the honest custodian representation; (ii) the dismissal of its claims for: (a) unjust enrichment, against 45 of the Liability Defendants, identified in Appendix 3A to the Order, and (b) proprietary remedies, against 39 of the Liability Defendants, identified in Appendix 3B of the Order, in each case so far (if at all, and only) as that claim was made at trial upon the basis of SKAT’s claim to have made payments induced by deception on the part of one or more of the primary respondents.

9. I shall refer to SKAT’s claims for damages for deceit against the primary respondents within the scope of the application for permission to appeal as the ‘primary claims’. I shall refer to the Liability Defendants identified in Appendix 3A and/or Appendix 3B of the Order as the ‘secondary respondents’, and the unjust enrichment and proprietary claims against them within the scope of the application for permission to appeal as the ‘secondary claims’. I note for completeness (it had no impact on any decision I had to make) that all six primary respondents are also secondary respondents appearing in both Appendices.

10. The limitation of the secondary claims expressed at the end of paragraph 8(ii) above is a consequence of the fact that SKAT pursued unjust enrichment or proprietary claims at trial only if and to the extent that it established that it had been induced by fraud to pay invalid tax refund claims. The judgment, given effect by the general dismissal of all of SKAT’s claims, determined against SKAT that it had not been so induced. There is theoretical room, therefore, for SKAT to pursue unjust enrichment or proprietary claims further only if and to the extent that it overturns that determination. It only seeks to do so by, and to the extent of, its proposed appeal in respect of the primary claims.

11. I should also make clear that the only proprietary claims in respect of which SKAT sought permission to appeal were what might be called pure tracing claims. That is to say, its claims alleging that, even in the absence of any relevant guilty knowledge, dishonesty or fault on their part, a secondary respondent today holds some asset or assets on constructive trust for SKAT, because in equity their interest in that asset can be traced back, according to SKAT, to the payment by it of one or more tax refund claims under a mistake induced by the fraud (as alleged) of one or more of the primary parties. Claims alleging knowing receipt or dishonest assistance, made at trial, were not to be pursued further.

12. Finally as to the scope of the appeal for which I was asked to grant permission, in my view it is not open to SKAT to seek to pursue Mr Horn in the Court of Appeal on an allegation that he practised deceit by the honest custodian representation. SKAT’s claims against Mr Horn founded upon that alleged representation were withdrawn in closing on a concession that it was not fair to seek judgment against Mr Horn on them (judgment at [471]). I would have refused permission to appeal come what may, therefore, in respect of the dismissal of deceit claims against Mr Horn founded upon that representation. The Proposed Grounds

13. The grounds upon which SKAT sought permission to appeal were these: (i) Ground 1: I was wrong to conclude (in the case of each) that (a) the dividend payment representation, (b) the tax representation, and (c) the honest custodian representation, were not conveyed, objectively, by ‘Form + CAN’, read together in their context of an application for a refund of withheld Danish dividend tax. (ii) Ground 2: I was wrong, in the case of each primary respondent, to conclude that he did not understand (a) the dividend representation, or (b) the tax representation, to have been made to SKAT by the tax refund documents submitted to it, and/or I was wrong, for each of Sanjay Shah, Rajen Shah and Mr Klar, to conclude that he did not understand (c) the honest custodian representation to have been made to SKAT by those documents. (As formulated by SKAT, the second part of Ground 2, concerning the honest custodian representation, was said to apply also to Mr Horn, but I would not have allowed that even if I had otherwise granted permission on Ground 2: see paragraph 12 above.) (iii) Ground 3: I was wrong to conclude (in the case of each) that (a) the dividend payment representation (if made), (b) the tax representation (if made), or (c) the honest custodian representation (if made), did not induce SKAT to pay (any of) the invalid tax refund claims that were the subject of its claims. (iv) Ground 4: I was wrong to reject the secondary claims, and each of them, on the ground that SKAT had not been induced by fraud to make any relevant payments, since (and then to the extent that) in accordance with Grounds 1 to 3 I ought to have found that SKAT had been so induced, and in the case of the unjust enrichment claims I was also wrong to hold that they were bad in law in any event because they did not relate to enrichment at the expense of SKAT.

14. Thus it was Ground 4 that gave rise to the third aspect of the decision to prepare what are now these written reasons as a fuller explanation of my decision to refuse permission to appeal (paragraphs 6-7 above). Ground 4, if well founded, would take SKAT only as far as saying that my judgment did not provide sufficient justification for the dismissal of the secondary claims if, on the basis of Grounds 1 to 3, I was wrong not to find that the primary claims, or at least some of them, had been made good at trial. That would not establish that any of those secondary claims was well founded. The judgment does not hold that but for the failure of the primary claims, and the ‘not at SKAT’s expense’ point for the unjust enrichment claims, the secondary claims, or any of them, would have succeeded.

15. Against any given primary respondent, SKAT would have to succeed on all of Grounds 1, 2 and 3, for there to be a successful appeal against the dismissal of SKAT’s primary claims against that respondent. Against any given secondary respondent, SKAT would have to succeed on all of Grounds 1, 2 and 3 against one or more of the primary respondents, and then on Ground 4 against that secondary respondent, for there to be a successful appeal against the dismissal of SKAT’s secondary claims against that respondent. If SKAT were to succeed on Grounds 1, 2 and 3 against one or more, but not all, of the primary respondents, then success on Ground 4 in respect of any given secondary claim would require SKAT first to show that the subject matter of that claim (benefit or asset) represented, directly or indirectly, the proceeds of one or more of the primary claims that had thus been upheld on appeal.

16. I find it convenient now to deal with the Grounds raised by SKAT in reverse order. Ground 4

17. Ground 4 recognises that each secondary claim for unjust enrichment required SKAT to show not merely that it made a payment or payments under a mistake of fact induced by fraud, but also that the given secondary respondent against whom the claim was made was enriched at SKAT’s expense. That element of the common law unjust enrichment claim, as confirmed and explained in ITC (Investment Trust Companies v Revenue and Customs Commissioners [2017] UKSC 29, [2018] AC 275), on any view confines the cause of action. How tightly it does so is the issue that divided HHJ Bird in Tecnimont and HHJ Paul Matthews in Terna Energy (Tecnimont Arabia Ltd v National Westminster Bank plc [2022] EWHC 1172 (Comm); Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1419 (Comm)).

18. On that division, I sided with HHJ Paul Matthews (judgment at Appendix 7, [43]), which favoured SKAT. I do not consider there to be a realistic argument that the legal test I therefore applied (ibid, [44]) was incorrect. SKAT did not contend by or under Ground 4 that I misapplied that test, on the facts, if it is the correct test, nor would I have said that there was any realistic argument to that effect. (For completeness only, I should note that at Appendix 7, [45], I contemplated the possibility in principle that an unjust enrichment claim against a corporate Godson D in relation to its own tax refund claims would not have failed on the ITC point; but SKAT in fact made no such claim at trial.)

19. I also do not consider it sensibly arguable that the judgment at Appendix 7, [42], misreads Lord Reed’s remark about tracing claims in ITC at [48]. In any event, that remark concerns only a situation in which a defendant holds an asset into which the claimant can trace an interest, in other words (in this case) an asset shown to be now held by a secondary respondent in respect of which SKAT has a valid pure tracing claim, to which any possible unjust enrichment claim could add nothing anyway.

20. As regards the secondary claims, therefore, I would have refused permission to appeal in respect of unjust enrichment claims come what may.

21. The question to consider next is how far it is practicable and proper to go to supplement my trial judgment with further findings of fact, reasons or conclusions, in relation to issues not addressed in that judgment because they did not arise. I was referred by Mr Graham KC to Greenwich Millennium Ltd v Essex Services plc [2014] EWCA Civ 960, [2014] 1 WLR 3517, at [7], per Jackson LJ (with whom Beatson and Gloster LJJ agreed), and School Facility Management Ltd v Governing Body of Christ the King College [2021] EWCA Civ 1053, at [2] and [22], per Popplewell LJ (with whom Nicola Davies and Dingemans LJJ agreed).

22. In School Facility Management, Popplewell LJ merely recited as procedural fact that in a judgment granting permission to appeal, Foxton J had addressed the issue raised by the appeal much more fully than he had in his original judgment, amplifying his reasons for being against the appellant on it. It is evident from the circumstances summarised by Popplewell LJ, and by Foxton J in his permission to appeal judgment, [2020] EWHC 1477 (Comm), [2020] 1 WLR 4825, at [6]-[8], that no point was taken, before him or before the Court of Appeal, as to whether Foxton J should have done so. School Facility Management therefore establishes no relevant principle.

23. In Greenwich Millennium, Jackson LJ said that he had wondered whether it was legitimate to take into account the amplification by Coulson J (as he was then), in his judgment refusing permission to appeal, of the reasons for his original decision, and had concluded that it was. It is not apparent that an issue was raised about that, however, so again I do not consider that Greenwich Millennium is authority for any particular rule on the point.

24. Jackson LJ in turn referred to English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. That case is an important authority on the nature and extent of a court’s duty to give reasons explaining its decisions, and on the approach to be taken to an appeal on the ground that a court has not given adequate reasons. In giving the judgment of the court, Lord Phillips of Worth Matravers MR at [24]-[25] endorsed and encouraged the limited notions that: (i) in an application to a first instance court, for permission to appeal on the ground of inadequate reasons, that court may and should provide additional reasons if it agrees with the complaint, in which case it should then refuse permission to appeal on that ground (assuming it considers that it has thus cured the defect); (ii) in an application to an appeal court, for permission to appeal on the ground of inadequate reasons, if it appears to that court that the application is well founded, it should consider remitting the case to the first instance court, within the permission to appeal application, with a targeted invitation to provide further reasons that the appeal court can take into account in deciding the application.

25. In the present case, Ground 4 does not complain of an absence of adequate reasons. Nor is there any suggestion, as part of Grounds 1 to 3, that my decisions as to how many of the issues raised by secondary claims had to be considered have any impact on the soundness or otherwise of my dismissal of the primary claims. Therefore, English v Emery Reimbold decides nothing as to whether it might be proper for me now to amplify my reasons for dismissing the secondary claims, and if so how far I should or should not go in that respect.

26. As in all three of those Court of Appeal authorities, none of the secondary respondents raised any objection before me to SKAT’s invitation that I consider supplementing the trial judgment as regards the secondary claims. In the absence of any contest on the question, or (therefore) any substantial consideration of it in argument, I have adopted the approach that I have a discretion whether to supplement the trial judgment in relation to the secondary claims, and if so how far to go, by dealing with issues to which they would or might have given rise had they not failed for the reasons given in that judgment. In exercising that discretion, in my view it is proper to have regard to the following considerations (not intended to be a complete or prescriptive list): (i) the starting point that a final judgment (whether it is a judge’s approved transcript of an oral judgment, or a written judgment handed down after having reserved) is intended to be a court’s definitive word on the decision it has made and the reasons why it has made it; (ii) the capacity of supplementary findings or reasons to limit further the scope of any appeal, or to reduce the chances of a successful appeal requiring further proceedings at first instance to work through the consequences. Either of those ends would serve the overriding objective of dealing with the case justly, since that includes ensuring, so far as practicable, that it is dealt with expeditiously, using no more than an appropriate share of the court’s resources (CPR 1.1(2)(d)/(e)); (iii) whether, or the extent to which, the setting out of supplementary findings or reasons would merely commit into final written form further findings, or reasoning, in fact considered as part of deciding the case originally and preparing the trial judgment (albeit not set out, or not set out fully, in that judgment), or would involve considering points fully or finally for the first time only because of the intimated desire to appeal; (iv) the nature of any supplementary findings or reasons that might be set out, as that may bear on the appropriateness of setting them out. For example, if they would have involved, had they appeared in the original judgment, no more than a decision, obiter, or an application, obiter, to the facts found in that judgment, of a point of law, on the one hand it might be said that the judge should not see it as problematic to deal with it, but on the other hand it might be said that there is no need to deal with it as the appeal court which will be well placed to do so, if required. Or again, a judge may find it artificial or unrealistic to try to identify what findings of fact would have been made if prior findings of fact had been made that were not made, particularly if at the logically prior stage it is not merely that the prior findings now to be assumed were not made, it is that contrary findings were made.

27. That last aspect is a significant factor for the secondary claims in the present case. I considered that “[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” (judgment at Appendix 7, [116], emphasis added). That was said in the specific context of SKAT’s case against Sanjay Shah, but it was not a concern confined to that case. I do not regard it as appropriate to attempt now to decide (more strictly, to decide how I would have decided) points of fact that will only need to be decided (in order finally to determine one of more of SKAT’s claims) if findings of fact in the judgment are now overturned on appeal, where the exact nature or scope of the point, or the correct resolution of it, might be influenced by the different, and ex hypothesi inconsistent, findings of fact that it would then be said I should have made.

28. Many of the secondary respondents were litigants in person at trial, and might again be litigating in person for any proceedings before the Court of Appeal. I consider that favours, other things being equal, a more expansive willingness to deal with further points of law, where I can do so by reference to the facts found in the judgment or limited further facts I consider that I can sensibly make now, rather than (in effect) to say that it is sufficient to do justice overall that a respondent can raise points in the Court of Appeal, if necessary by respondent’s notice.

29. Taking those matters into account, I have decided to supplement the trial judgment, as regards the secondary claims, to the following extent, but no further.

30. Firstly, for a good number of the secondary respondents, the subject matter of the secondary claims against them was exclusively: (i) in unjust enrichment claims, money paid to them (or to corporate entities of their) for their work at Solo or their participation (through corporate entities) as contracting parties in Solo Model and/or Maple Point Model trading; (ii) in proprietary tracing claims, assets (if any) held by them that were traceably derived from such payments. However, if such a secondary respondent is neither a primary respondent nor a corporate entity whose directing mind at the material time was that of a primary respondent, then on the premise upon which the appeal proposed by SKAT would proceed, that secondary respondent earned in good faith, under for them valid and enforceable contractual arrangements, all that came to them (directly or indirectly), so there could be no possibility of an unjust enrichment claim or of a constructive trust over their retained traceable assets (if any). I do not consider it arguable, as Mr Graham KC contended in the only answer put forward for SKAT, that if the secondary respondent participated in some element of what I called the collateral dishonesty in the case, e.g. obfuscatory invoicing, that would deny them the otherwise sound defence of having honestly given good consideration entitling them to receive and retain (as against SKAT) what was paid.

31. For that further reason, I would have refused permission to appeal come what may in respect of the secondary claims against the following secondary respondents, and each of them: (i) any corporate SSDs that were not Sanjay Shah entities at the time of the material events, except where the unjust enrichment or proprietary claim was made in respect of the acquisition of an (indirect) holding in Varengold Bank or Dero Bank; (ii) Mr Dhorajiwala; (iii) Lindisfarne; (iv) Mr Bains; (v) Ms Bhudia; (vi) Mr Devonshire; (vii) Mr Fletcher; (viii) Mr Godson; (ix) the Körner Ds; (x) Mr Murphy; (xi) the Oakley/Mitchell Ds; (xii) Mr Preston; (xiii) Mr Smith; (xiv) Mr Knott; (xv) Mr Hoogewerf.

32. Secondly, as regards SKAT’s proprietary claims, my approach in the case of Liability Defendants would have been consistent with my approach to that claim against Syntax (trial judgment at [626]). If by the end of the long and thorough trial process, SKAT pursued only a claim for hypothetical declaratory relief, rather than relief in respect of identified assets, I would have required strong good reason specific to that respondent’s case why I should not refuse declaratory relief and therefore dismiss the claim. In my discretion, I would have refused declaratory relief on that basis, and therefore I would have refused permission to appeal in any event as regards proprietary claims, as against (using the short names set by Appendix 1 to the trial judgment, which I note (as reminder to SKAT’s representatives) do not match exactly the short names used by SKAT in its written submissions at trial): (i) Ganymede; (ii) Elysium Holdings; (iii) Elysium Property Holdings; (iv) Trillium Holdings; (v) the Oakley/Mitchell Ds; (vi) the Körner Ds; (vii) Mr Godson; (viii) Mr Fletcher; (ix) Mr Preston; (x) Mr Devonshire; (xi) Mr Bains; (xii) Mr Knott; (xiii) Mr Hoogewerf.

33. Thirdly, I would have refused permission to appeal in any event as regards SKAT’s proprietary claim against Mr Smith concerning a property in Rayleigh, Essex. It was purchased using money from Mr Smith that SKAT said it could trace back to tax refund payments it made in response to refund claims generated by Solo Model trading. It is owned (with ordinary registered title) by Mr Smith’s wife and children. SKAT did not allege that that was a device to conceal Mr Smith’s interest or that this was a tainted gift that SKAT had some entitlement to unravel.

34. I would have said that there was no reason to find that the house in Rayleigh was not intended to be the gift it appeared from the legal title to have been, and that Mr Smith has no equitable beneficial interest in the property. I would not have regarded that as a finding there was any realistic prospect of SKAT overturning on appeal. In the Smith family’s circumstances, to the extent I had evidence of them, I would not have agreed with SKAT that there was an implied intention as a result of Mr Smith’s having funded the purchase, and subsequently having contributed to household bills, repairs and improvements, that he have an ownership interest in the house. There was no evidence for the existence of an express agreement that he be a co-owner. Ground 3

35. 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.

36. 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]).

37. 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. Ground 2

38. Mr Head KC also submitted rightly, in my view, that my findings that the primary respondents neither realised nor intended that the ‘Form + CAN’ tax refund applications with which they had any involvement would make to SKAT any of the representations it alleged, were quintessential factual findings with which it was fanciful to suppose that the Court of Appeal might interfere.

39. They involved a careful and thorough examination of all of the evidence, good and bad for SKAT and for each individual defendant. Grounds 2 & 3

40. I considered that, in substance, SKAT was seeking by Grounds 2 and 3 just to re-run on appeal factual cases that it did not prove at trial, and that there was not more than a fanciful prospect of a conclusion that it might meet the appellate test it acknowledged, as stated for example in Henderson v Foxworth Investments Ltd et al [2014] UKSC 41, [2014] 1 WLR 2600 at [67], per Lord Reed JSC. Ground 1

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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 (i) the essential claim made by SKAT was that by the tax reclaim documents, as submitted to make a claim for a tax refund, the Tax Agent stated to SKAT that its client had been the tax owner of shares on the dividend declaration date, and that (ii) SKAT then claimed that the Tax Agent therefore told SKAT that its client had, in the eyes of Danish tax law, received a dividend in respect of which it had received a payment in an amount net of tax and therefore, in turn, told SKAT that the Danish company had withheld tax from the payment received by the client (in the sense unpacked in the judgment at [509]-[511]).

48. 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. Other Compelling Reason?

49. Although it was not pressed in oral argument, the skeleton argument on behalf of SKAT for the judgment hearing also invited consideration of whether permission to appeal should be granted, even in the absence of a realistic prospect of success, pursuant to CPR 52.6(1)(b). That rule allows for permission to appeal on the alternative ground that there is some compelling reason, other than the existence of a realistic prospect of success, why an appeal should be heard. SKAT submitted that the grant of permission on that ground “may be appropriate where it is in the public interest for an issue to be considered by the Court of Appeal, such as the importance of providing remedies for alleged high value, international fraud on a friendly foreign state”.

50. The Shah Ds and the DWF Ds responded, robustly, that: (i) per the DWF Ds, SKAT’s submission was “extraordinary”, akin almost to a form of political pressure, since it proposed that absent realistic reason now for saying that SKAT had suffered any of the actionable wrongs it alleged at trial, it should be allowed to pursue an appeal because “[it] is an aggrieved state … [that] is ‘friendly’ and alleges fraud”; (ii) per the Shah Ds, the case “was and has remained pleaded that SKAT [brought] this claim in a private capacity … . … it would be a strange function for this Court to decide that all claims brought by SKAT in its private capacity had failed and then grant it permission to appeal when there are no substantive grounds to do so … out of a desire to fashion a remedy apparently unavailable to private litigants … because the losing party is a friendly state (and thus … not a private party at all)”.

51. I would assume in SKAT’s favour that it did not intend to apply or suggest political pressure. However, I have sympathy with the DWF Ds’ submission that for SKAT to put forward, as it did, that its status as, in truth, the Kingdom of Denmark (acting by its tax authority), a “friendly foreign state”, should result in special treatment on permission to appeal, has something of that appearance. On the substance of the point, I agreed with both responsive submissions that the size and international nature of the fraud SKAT alleged is no reason, let alone a compelling reason, why an appeal should be entertained in the absence of a realistic prospect of success.