Ali Malek QC and George McPherson successful for ED&F Man in SKAT revenue rule appeal

Ali Malek QC and George McPherson (instructed by Rosenblatt) have successfully acted for ED&F Man in the revenue rule appeal brought by the Danish Tax and Customs Authority (SKAT) in its £1.5 billion claim against more than 100 defendants to recover payments made by way of tax refunds. SKAT’s claim is one of the biggest ever to be brought in the Commercial Court.

Following a 3 day hearing in January before the Court of Appeal (Sir Julian Flaux C, Phillips LJ and Stuart-Smith LJ), ED&F Man was the only defendant (among over 100) to defeat SKAT’s appeal, which otherwise succeeded. SKAT’s claim against ED&F Man was worth approximately £70m.

SKAT was attempting to overturn the decision of Andrew Baker J that all of SKAT’s claims were inadmissible pursuant to Dicey Rule 3, the conflict of laws “revenue rule” which bars claims in this jurisdiction which have the object of enforcing the revenue laws of a foreign State.

On appeal, SKAT sought to argue against ED&F Man that (i) the English court had jurisdiction to determine the claim because (as the Judge had held) it was a ‘civil and commercial matter’, and not a ‘revenue matter’, under the Brussels Regulation Recast and (ii) the existence of such jurisdiction precluded the operation of Dicey Rule 3 (which SKAT accepted would otherwise apply to bar its claim against ED&F Man). The Court of Appeal dismissed SKAT’s appeal against ED&F Man on the first ground, on the basis that SKAT’s claim against ED&F Man was a ‘revenue matter’ outside the scope of the Brussels Recast Regulation. The Court held that the second ground was academic.

The outcome of the appeal brings to an end ED&F Man’s 4 year involvement in this mammoth case.

Since 2018, Ali Malek QC, Matthew Hardwick QC and George McPherson have been instructed by Anthony Field, Justin Nimmo, Luther Kisanga, Tom Spiller and Charlotte Woodward at Rosenblatt.

Read the judgment in full.