Skatteforvaltningen (The Danish Customs And Tax Administration) (“SKAT”) v Solo Capital Partners LLP (in special administration) & Ors

In complex litigation, the court may direct that representative sample transactions determine issues at trial where the pleaded trading models and selection process provide a sufficient basis for representativeness. Such a direction should preserve a controlled opportunity to add or adjust samples, while recognising that applications made late may cause unfairness.

Trial length and listing must balance a fair opportunity to present evidence and argument, the stamina of participants, contingencies, court resources, costs and the risk of an incomplete trial. Case management directions may also require defendants to identify any positive case on foreign governing law; absent such a case, the claims may be managed on the basis of English law.

This was a consolidated case management hearing in claims concerning several thousand withholding-tax refund applications. The court considered how sample trades should represent the trading structures and transaction series underlying the pleaded trading models, the length and structure of the main trial, and the identification of the issues each defendant intended to pursue.

The court also considered whether defendants who had not pleaded a positive case on foreign governing law should be treated as advancing such a case. The central issues were the proper scope of the case management directions and how to secure a fair, proportionate and workable trial.

1. Representative samples. The court directed that 25 identified sample trades be treated at the main trial as representative of the trading structures and series of transactions underlying the relevant trading models and sub-variants. The direction did not absolutely preclude a later application to add samples, correct attribution or identify a further variant. Any such application should be made promptly, since delay could make it unfair to permit the necessary preparatory changes.
2. Trial listing. The court varied the listing so that the trial would include the second half of Hilary Term 2025 for closing submissions. In determining trial length, relevant considerations included a fair opportunity for all parties to present and answer evidence and argument, the stamina and endurance of participants, the possibility of mishaps or delay, costs, court resources, the need to reduce uncertainty for planning, and the risk that the trial would not finish within the existing listing.
3. Governing law. Unless a defendant had pleaded, or obtained permission to plead, a positive case that its claims were governed by a system of law other than English law, the claims against it would be determined by reference solely to English law. This was a case management direction clarifying the issues, rather than a determination prejudicing any substantive right to advance a properly pleaded foreign-law case. The judge relied on the substantive analysis discussed in Iranian Offshore and Brownlie (No 2), while acting under procedural case management powers.