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

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeMr Justice Andrew Baker
Judgment Date22 Jun 2021
Neutral Citation[2021] EWHC 1683 (Comm)
Docket NumberCase No: CL-2018-000297

[2021] EWHC 1683 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Rolls Building, Fetter Lane, London EC4A 1NL

Before:

Mr Justice Andrew Baker

Case No: CL-2018-000297

Between:
Skatteforvaltningen (the Danish Customs and Tax Administration)
Claimant
and
Solo Capital Partners LLP (in special administration) and many others
Defendants

Michael Fealy QC, Jamie Goldsmith QC, Sam O'Leary, Abra Bompas, James Ruddell & James Fox (instructed by Pinsent Masons LLP) for the Claimant

David Head QC, Tom De Vecchi & Sophia Dzwig (instructed by DWF Law) for Anupe Dhorajiwala, one of the DWF Defendants

Hearing date: 16 June 2021

Approved Judgment

This is a reserved judgment the application to which of paragraph 2.3 of CPR PD 40E is unnecessary and is therefore hereby dispensed with. Copies of this version as handed down may be treated as authentic.

Mr Justice Andrew Baker Mr Justice Andrew Baker
1

On 27 April 2021, I handed down judgment following the trial of a preliminary issue, [2021] EWHC 974 (Comm) (‘the Revenue Rule judgment’). I concluded that Dicey Rule 3 applied so that at common law all of SKAT's claims fell to be dismissed and that the court was not precluded by the Brussels-Lugano regime from applying Dicey Rule 3 to dismiss claims against Brussels-Lugano defendants (see the judgment at [4] and [20] for how I defined those various terms). By Order of that date, I dismissed all of SKAT's claims and adjourned consideration of consequential matters generally to a hearing on 6 May 2021, with the interim relief obtained by SKAT (a worldwide freezing order and proprietary injunction, ‘the WFO’) to continue until that hearing.

2

At the hearing on 6 May 2021, I granted SKAT permission to appeal on the Brussels-Lugano issue but refused permission to appeal on the applicability of Dicey Rule 3 at common law. I continued the WFO, in the event without objection (and in the case of various WFO respondents, including Mr Dhorajiwala, by consent), until a further hearing date of 16 June 2021 when there would be substantive consideration of SKAT's application for its continuation or a stay upon its discharge. The particular hearing dates chosen, 6 May and 16 June 2021, were chosen because they were convenient to the court and the parties since they had been reserved for hearings in the litigation not now required following the dismissal of SKAT's claims and gave the parties time to discuss matters and exchange evidence for an orderly disposal of the case. As regards what to do with the WFO, it was explicit from Mr Dhorajiwala in particular (through his skeleton argument for the hearing on 6 May 2021) that the further time between 6 May and 16 June was needed before the parties could fairly be in a position to ask the court to give any consideration to the point.

3

SKAT for its part explained in its skeleton argument for the hearing on 6 May 2021 that it would seek a continuation or deferred discharge of the WFO:

(i) pending appeal, if I granted permission to appeal, by reference to the approach summarised by Floyd LJ in Novartis AG v Hospira UK Ltd [2013] EWCA Civ 583, [2014] 1 WLR 1264, at [41],

(ii) for a brief period to enable SKAT to take the question of interim relief to the Court of Appeal without the protection of the WFO being lost in the meantime, following the approach of Warren J in Metropolitan Housing Trust Ltd v Taylor et al, unreported, 20 October 2015, if I did not.

4

In the event, for all but two of the respondents to the WFO (Mr Dhorajiwala and Ms Bhudia), the question of whether and if so on what terms any interim relief should continue pending proceedings in the Court of Appeal was resolved without the need for any ruling beyond (where requested) an approval of proposed terms for consent orders. Ms Bhudia is now a litigant in person and presented no argument to the court on the point. However, she did refer in correspondence to particular circumstances that, she said, would create specific hardship for her if the WFO were continued. Mr Fealy QC drew that to my attention and volunteered in the draft Order he put forward a term to meet that concern so as to avoid taking up time arguing over it.

5

This judgment therefore now sets out my reasons for the decision I made at the hearing in relation to the WFO as against Mr Dhorajiwala, which I also applied to Ms Bhudia subject to the point mentioned in the previous paragraph. My decision, following the approach taken in Metropolitan Housing v Taylor, was that the WFO will be discharged as against Mr Dhorajiwala, without further order, at 5.00 pm on Friday 30 July 2021, giving SKAT just over 6 weeks, if so advised, to seek interim relief from the Court of Appeal.

6

Mr Dhorajiwala is domiciled in Dubai. Therefore, in his case SKAT's claims stand dismissed without permission to appeal. By a timely Appellant's Notice dated 21 May 2021 (Court of Appeal Ref. 2021/0956), SKAT has lodged an appeal, including the necessary application to the Court of Appeal for permission, against inter alia Mr Dhorajiwala (who is the 20 th Defendant to the second of the consolidated Claim Forms, CL-2018-000404). Within that appeal, SKAT has issued an Application Notice dated 11 June 2021 seeking from the Court of Appeal interim relief by way of a continuation of the WFO (or the deferral of its discharge) against inter alia Mr Dhorajiwala pending determination of its (proposed) appeal. I envisage that some substantial work may now be required on SKAT's side to refine the material the Court of Appeal may need to consider, so as to confine that application to Mr Dhorajiwala (and Ms Bhudia).

7

In Metropolitan Housing v Taylor, at [2], Warren J referred to Ketchum International plc v Group Public Relations Ltd [1997] 1 WLR 4, Erinform Properties Ltd v Cheshire CC [1974] 1 Ch 261, and Novartis, supra, concluding (and I agree) that: Those cases establish … that this Court should not grant an interim injunction pending appeal where the applicant has lost before it unless a number of conditions are fulfilled, as summarised in Novartis at [41]. That applies even where the order appealed against is the refusal or discharge of a freezing order.”

8

As I understand it, that was the position in that case. That is to say, the substantive decision Warren J had made had been to refuse or discharge a freezing order after full inter partes argument. I do not agree with a submission made by Mr Fealy QC that the approach adopted by Warren J, to which I shall turn in a moment, should be limited by that context. True it is that in that context the decision against the freezing order applicant, in respect of which it has been refused permission to appeal, will itself have concerned whether a freezing order should be granted. That does not detract, however, from the force...

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