Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and many others

Hearing dates:

, 16, 17, 18, 22, 23, 24, 25, 30 April 2024; 1, 2, 3, 7, 8, 9, 13, 21, 22, 23, 24 May 2024; 4, 6, 7, 10, 11, 12, 17, 18, 19, 20, 21, 24, 26, 27 June 2024; 2, 3, 4, 5, 8, 9, 10, 11, 17, 18, 19, 22, 23, 24, 25 July 2024; 2, 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 25 October 2024; 4, 5, 6, 7, 11, 12, 13, 25, 26, 27, 28, 29 November 2024; 2 December 2024; 24, 25, 26, 27, 28 February 2025; 3, 4, 5, 6, 10, 11, 12, 13, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 31 March 2025; 1, 2, 3, 4, 7, 8, 9, 10 April 2025

Approved Judgment

This is a reserved judgment to which CPR PD 40E has applied. Copies of this version as handed down may be treated as authentic.

A. Introduction

A.1 Overall Summary

This litigation concerned share trading on cum-ex terms, Danish dividend tax, and the approach of the Danish customs and tax administration (‘SKAT’) to the processing and paying of claims for dividend tax refunds between mid-2012 and mid-2015. The final trial in these proceedings, on which this is the judgment, was the trial of claims pursued by SKAT concerning 4,170 of the dividend tax refund claims that were submitted to it and paid by it during that period. The aggregate amount paid by SKAT in response to those 4,170 claims was just under DKK12.1 billion (c.£1.4 billion at today's exchange rate).

An equity trade is on cum-ex terms if it is traded, i.e. entered into, on or before a dividend declaration date, for settlement, i.e. performance, after the record date for that dividend. In October 2021, in an interview for a German television documentary, Sanjay Shah said of the Danish cum-ex scandal and his part in it: “… just going back to what happened in Denmark, why would they pay out for years and years and then, after four years of payments, they say, “Oh, we made a mistake, or we were cheated”? If there's a big sign on the street saying, “please help yourself”, then me or somebody else would go and help themselves”.

This judgment determines whether SKAT was cheated in the sense that is relevant to this litigation. That is to say, it determines whether Sanjay Shah and others practised upon SKAT the deceit it alleged by its pleadings in this court. On the evidence put before the court at trial, and without forgetting that SKAT bore the burden of proof, one alternative to emerge was that Sanjay Shah and others were able to and did help themselves to a fortune because SKAT's processes were so limited as to fit Mr Shah's street sign analogy, not because they needed to or did practise deceit upon SKAT as it alleged.

Sanjay Shah is one of several trial defendants convicted in Denmark on criminal charges arising out of the activities considered in this judgment. A New York federal jury has awarded SKAT US$500 million in damages against a number of parties involved in some of those activities. There are also some judgments in favour of SKAT in Dubai. None of those decisions is relevant to whether any of the trial defendants in these proceedings is liable as alleged by SKAT. That falls to be judged by reference to the claims pursued by SKAT at the trial in this court, all of which are governed by English law, and upon the evidence and argument put before this court at that trial. Those claims, and that evidence and argument, may or may not be the same as or similar to the criminal charges or civil claims brought in other jurisdictions under systems of law other than English law, or the evidence and argument put to those other courts; and even if all was the same or materially similar, the decisions of judges or juries in other jurisdictions as to what had or had not been proved are inadmissible opinions about the facts in this court, which must reach its own decision.

SKAT accepted that if it made a financial recovery pursuant to any of the decisions elsewhere, credit would have to be given for that if remedies fell to be considered here, but that is a different point. Any such recovery might reduce the loss ultimately suffered by SKAT at the date of this judgment, or it might involve a transfer or restoration to SKAT...