Skatteforvaltningen (The Danish Customs and Tax Administration) (“SKAT”) v Solo Capital Partners LLP (in Special Administration) & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 09 June 2023 |
| Neutral Citation | [2023] EWHC 1413 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case Nos. (Consolidated): CL-2018-000297, CL-2018-000404, CL-2018-000590, CL-2019-000487, and CL-2020-000360 |
[2023] EWHC 1413 (Comm)
Mr Justice Andrew Baker
Case Nos. (Consolidated): CL-2018-000297, CL-2018-000404, CL-2018-000590, CL-2019-000487, and CL-2020-000360
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Charles Graham KC, Abra Bompas, KV Krishnaprasad, Sam O'Leary, Matthew Hoyle and Constantine Fraser (instructed by Pinsent Masons LLP) for the Claimant
Nigel Jones KC, Lisa Freeman, Laurence Page (instructed by Meaby & Co Solicitors LLP) for the Sanjay Shah Defendants
Kier Howie (instructed by PCB Byrne LLP) for the Lui Defendants
David Head KC, Hannah Glover and Sophia Dzwig (instructed by DWF Law LLP) for the DWF Defendants
Linos Choo (instructed by DLA Piper) on behalf of Mr Jas Bains
Mr Mankash Jain (in person)
Hearing dates: 7–9 June 2023
CMC RULINGS
(Approved Transcript)
Wednesday, 7 June 2023
(3:02 pm)
I am grateful to all counsel for their consideration in their written skeletons, and in the oral argument today so far, of the important question of identifying sample trades that can be treated, for the purposes of the Main Trial, as representative of the trading structures or series of transactions used by those participating in the various trading models that generated, ultimately, the several thousand WHT refund applications that are the ultimate subject matter of SKAT's various claims.
I am satisfied from the descriptions that have been given and the explanations that have been provided of the pleaded cases as they stand, and the process that has been undertaken on SKAT's side of the selection of candidates, that we now have a list of 25 sample trades that are, in the sense that will matter for the Main Trial, representative of the trading models. That includes in certain instances variants or sub-variants, as identified by SKAT in the run-up to the hearing this week in their amended version of what was originally Schedule 1A to the Particulars of Claim. In that version there are added columns M and N attributing, to adopt a word that has been used, each of the 4,000 or so individual claims to one or other of the pleaded trading models.
In principle – not so as to shut defendants out from coming back and saying, on a particularised basis, that there is more they could and would wish to say – but in principle, on the way in which the case has always been pleaded, were there, on any defendant's side, a case intended to be explored at trial that some other feature not present across the whole of one of the trading models, or a further sub-variant within one of the models, was material to be considered, because either it did, or could in an alternative case, make a difference to questions of ultimate validity of the refund claim, or for other reasons relevant to disputed issues, that ought by now to have been pleaded.
Against all of that background, as it seems to me, it is appropriate and I am in a position to direct that the sample trades identified by SKAT will be taken at the Main Trial to be representative of the trading structures and/or series of transactions underlying the relevant trading models, including their sub-variants where applicable.
On that same basis of never saying never in advance, that is to say not shutting out the making of an application that I would then consider, if it was not agreed, for that list to be altered, either by the addition of what one would hope would be only a few additional samples (but, again, I do not preclude any particular type of application), or by way of adjustment or correction to the attribution on the more detailed spreadsheet, or so as even to identify so that it can be included in a revised version of that spreadsheet some further variant, I am not persuaded that there is shown to be a sufficient likelihood that any such application will need to be made or will prove to be well founded as to build in some further process to be gone through now before directing that, at least as regards the 25 sample trades that have been identified, they will be taken as representative.
The direction will be along these lines, namely that “ the issues in dispute in these proceedings shall be determined at the Main Trial on the basis that the sample trades identified in the sample trades list spreadsheet appended to the order are representative of the trading structures and/or series of transactions underlying each of [ … ] as indicated in columns M and N of the full trades list spreadsheet also appended to this order.”
So that will be a direction that, as regards the trial generally, we are treating the sample trades identified in a first small spreadsheet as — and here I am picking up the terminology Mr O'Leary had used in his draft order — representative of the trading structures and/or series of transactions underlying each of a series of defined terms that will marry up with the revised schedule 1A, which will be terms that can have been defined in recitals within the order. We have made a bit of a habit in this case of lengthy sets of recitals but, in a situation such as this, as it seems to me, that will be a useful way to ensure a clarity and brevity of the primary direction. If you need then to understand the specific content of any part of it, you can go back and pick up the defined term.
The first spreadsheet I have in mind for the purposes of my order, which can be called “the sample trades list spreadsheet”, will be the spreadsheet we have been using at the hearing, listing 25 sample trades, completed in two respects. One is that the additional tabs for Solo 14 and Solo 15 that counsel in their skeleton had anticipated were going to be there but are not yet there need to be added, and the second, at my suggestion, is that the WHT application number for each of the sample trades that will match the numbers they are respectively given in the much longer spreadsheet should be added in as a first column on the left. Then the second, much larger spreadsheet which completes the attribution of the sample trades to their respective populations or sub-populations of the entire WHT refund application cohort, that I have proposed to call in the order “the full trades list spreadsheet”, can be the current draft re-amended schedule 1A, but, at my suggestion with the rows for the 25 sample trades picked out visually by a yellow highlighting fill or the like, so that if anybody is actually using that document, either on a screen or even in a coloured printout, they will jump off the page to the eye.
As I said, that does not in terms preclude an application for all of that to be improved upon, but it is the order I regard as appropriate to make at this stage on the basis that I am sufficiently satisfied by the process that has been undertaken that those 25 are representative to at least an extent that is sufficient to make that a proper order, and I apprehend that will remain so even if one or more of the defendant groups hereafter find that there are either a number (again, I would hope, if it happens at all, a small number) of additional samples, or even some additional subdivision of the models, that would make a future revised version of that spreadsheet even more fit for purpose than it will already have been by the direction that I have now made.
All of that also allows — and in relation to this I am grateful in particular to Mr Jones KC's clarifications that nothing that he was suggesting was intended to cause SKAT a difficulty in relation to asking their expert, Mr Wade, to get on with the job on the current timetable of considering at least the 25 samples — but what I have ordered also has the benefit that that list of 25 becomes a fixed set of sample trades that we will definitely be using, whether or not in due course we also find that we add a few more. If happens at all but happens only at a point when it then becomes necessary for Mr Wade, for example, to deal with them in a supplemental report rather than in his first report, ultimately so be it. If that is what happens, the fact that that would be needed would no doubt go into the discretionary scales as to whether I should allow any such change. But all things being equal, we will all be working on the basis that our preference is to make the set of samples as fit for purpose as we possibly can, and if I am shown that, by the introduction of a few additional samples, or, as I have indicated a couple of times already, even a further sub-categorisation or additional categorisation within the models, then we can have an even better degree of representativeness, well, I am likely to want to approve that change if we can find a way of accommodating it.
However, to repeat, I am not going to provide a set of directions anticipating any such process. The defendants must take their own course as to that knowing, as they will, that notwithstanding everything I have just said about my likely attitude in principle, at the same time the rule is the sooner the better, and the longer any such application is left before being made, the more they risk the possibility that it will have been left sufficiently late as to...
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