On 28 June 2010, the High Court gave judgment on various issues following BSkyB's success in establishing liability against EDS for fraudulent misrepresentation, including the question of whether the incidence of taxation should be taken into account in calculating the damages payable (BSkyB v HP Enterprise Services UK Ltd [2010] EWHC 862).

Mr Justice Ramsay held that the quantum of the damages should be reduced to reflect a change in corporation tax rates, which meant that BSkyB would have paid 30% on earned revenues but only 28% on the relevant damages.

That taxation should be taken into account in calculating damages in the context of loss of earnings in personal injury claims was established by the House of Lords decision in British Transport Commission v Gourley [1956] AC 185. However, in Deeny v Gooda Walker [1995] STC 439 the High Court held, in respect of damages awarded for loss of profit in a negligence case, that taxation was not to be taken into account. One reason given was that consideration of the individual tax positions of claimants would increase the length and expense of the trial.

In Amstrad plc v Seagate Technology Inc (1998) 86 BLR 34, a case concerning damages for loss of profit caused by breaches of contract, the High Court applied Gourley and did not follow Deeny in holding that the change in the rate of corporation tax should be taken into account in assessing damages, as this was necessary to prevent the claimant recovering more than the loss which it had suffered.

In the BSkyB case, Mr Justice Ramsay favoured the approach taken in Amstrad. He considered that any difficulty in assessing BSkyB's actual tax position should not bar the calculation being made. Accordingly it was held that "an allowance should be made for the difference between the corporation tax treatment which the lost benefit would have received and the corporation tax treatment which the sums awarded as damages are likely to receive".