An offshore perspective: The English Commercial Court’s decision in the SKAT “cum-ex” case and Dicey Rule 3

In April this year, Mr Justice Baker of the English Commercial Court dismissed proceedings brought by the Danish national tax authority (SKAT) against over 100 defendants in connection with more than DKK2.5 billion in tax refunds that SKAT alleged it had been induced to repay by misrepresentations: Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others [2021] EWHC 974 (Comm).

SKAT’s claim failed, at the trial of a preliminary issue, on the grounds that it was offensive to “Dicey Rule 3”, a rule which disallows claims for the enforcement, directly or indirectly, of the penal, revenue and public laws of foreign states. Our understanding, at the time of writing, is that SKAT has obtained permission to appeal the decision to the Court of Appeal.

This article considers the decision from an offshore perspective, by reference in particular to Cayman Islands and British Virgin Islands jurisprudence.

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