If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.
My review of Skatteforvaltningen v MCML Ltd (Rev1) [2025] EWCA Civ 371 is a touch overdue, seeing as I promptly reported its outcome, immediately read the judgment (it is a majority one, which perhaps explains the lengthy discussion by Nugee LJ (who found himself in the minority), and wrote up on outline on the same day. But then I got distracted.
Good summary is available from MCML’s successful counsel here.
The Court of Appeal (who as I predicted granted permission to appeal after the judge initially refused PTA) has in essence overturned the attempt at resurrecting the relevant claim with a different qualification, applying issue estoppel (arising from a principle of law). This outcome IMO is right: see my critical comments of the attempt at resurrecting the claim here.
Nugee LJ would have allowed the appeal on the ground of issue estoppel save for a very small number of claims which are based on transactions not pleaded in the 2018 proceedings; but would dismiss the appeal so far as based on abuse of process. Newey and Popplewell LJJ agree with him on abuse of process, but on issue estoppel they allowed the appeal in relation to all the claims.
All three reject the arguments based on abuse of process. Henderson v Henderson abuse essentially precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. It is now seemingly accepted that SKAT’s requalification of a tax claim to a fraud claim was justified essentially due to its not being able to be properly aware of the fraud element due to the sheer size of the relevant discovery material which contained the indication of fraud.
However Newey J and Popplewell LJJ held (all three LJJ nb referring to Indian and Australian authorities) that issue estoppel provides MCML with a complete defence to the proceedings, and that issue estoppel can arise from determinations on points of law as well as points of fact.
As Casemine neatly summarise here,
the determination made by Andrew Baker J – that SKAT’s private law claims were in substance aimed at enforcing the Danish state’s sovereign right to tax (and thus fell under the foreign revenue rule) – was fundamental and should bind the parties in subsequent litigation.
Geert.
https://x.com/GAVClaw/status/1909167174263914789