Michael has a broad commercial and civil practice, with a slight Chancery bias.
Commercial dispute resolution Company Financial services Fraud: civil International arbitration Offshore Restructuring/insolvency T ax
Michael’s expertise and variety of practice is demonstrated by the following selection of recent cases in which he has been instructed. In the past year or so, Michael’s practice has taken on a distinctly
international flavour with appearances in the Court of the Cayman Islands and Uganda.
Company/Insolvency/International: Re Cybernaut Growth Fund LP, Cayman Islands Grand Court – T his was a winding up petition on just and equitable grounds brought in the Cayman Islands against an investment fund that had invested heavily in China. Michael acted for the petitioners, Partners Group AG, a massive global investment management firm with $39bn under management. It was essentially a fight between the limited partners as to whether the $300m fund should be wound up voluntarily by the general partner or compulsorily by the court. In a contested trial, Michael succeeded in obtaining a winding up order. T he Respondents appealed and Michael was instructed to appear before the Cayman Islands Court of Appeal in November 2013, but the appeal was withdrawn the day before the hearing and the matter settled. T here were also issues as to whether a winding up petition should be stayed pending an arbitration. International T ax: Michael has been admitted to the Ugandan Bar for the purposes of arguing the biggest case in financial terms to be heard in the Ugandan High Court.
LONDON & SINGAPORE
Michael Green QC
Call Date: 1987 | Silk Date: 2009AREAS O F EXPERTISE
Company/Insolvency: Farepak Food and Gifts: Secretary of State v Fowler and ors – T his was the high-profile disqualification proceedings arising out of the collapse of Farepak in 2006. T here were 7 defendants contesting the proceedings and Michael was acting for the two executive directors most in the firing line, instructed by DAC Beachcroft LLP. After a number of interlocutory skirmishes, the case came on for trial before Peter Smith J in May 2012. Michael conducted almost the entire cross- examination of the
Secretary of State’s witnesses and largely destroyed their case. At the end of his evidence the Secretary of State withdrew the proceedings against all of the Defendants and agreed to pay indemnity costs. T he Judge issued a statement criticising the Secretary of State and saying that no justified complaint could be made against the Defendants.
T he Financial Reporting Council also brought disciplinary proceedings against one of Michael’s clients, Mr Rollason. After a heavily contested strike out application, the matter was settled just before the
substantive hearing.
Company: Metro Baltic Horizons v James and ors – T his is a large company law case to be heard in the Isle of Man. It concerns an AIM listed company formed to invest in real property in the Baltic states. T he
Company is now suing the directors, investment managers and other advisors for losses it claims to have suffered from the collapse in property prices. Michael is instructed by Gibson Dunn on behalf of the non-executive directors.
Financial Services: Willford v FSA [2013] EWCA Civ 677; [2012] EWHC 1417 (Admin) – Michael was acting for the FSA/FCA in the only disciplinary proceedings arising out of the credit crunch. Mr Willford applied by way of judicial review to challenge the decision of the Regulatory Decisions Committee of the FSA to discipline him. It was a novel application that succeeded before Silber J but this was reversed by the Court of Appeal in an important precedent. Michael was instructed on the substantive proceedings in the Upper T ribunal but the matter settled before coming to trial.
Company/Insolvency/T ax: Re Paycheck Services Ltd: HMRC v. Holland [2011] Bus LR 111; [2010] 1 WLR 2793 Michael was instructed by HMRC at the trial of this matter, in the Court of Appeal and then in Supreme Court. T he Supreme Court judgment is the lead authority on the test for de facto directorship where a trading company uses a corporate director. T he difficulty of the issue led to a strong divergence of opinion among the Supreme Court Justices who held by a bare 3-2 majority against HMRC. Michael has particular expertise in the area of shadow and de facto directorships having been involved in the two main previous Court of Appeal decisions on this:Secretary of State v Deverell [2001] Ch 340; and Re: Kaytech International plc [1999] 2 BCLC 351.
Financial services: Appearing in the Court of Appeal (with Bankim T hanki QC) on behalf of the FSA in Winterflood v FSA [2010] Bus LR 1622. T his was an appeal by Winterflood from the decision of the Financial Services and Markets T ribunal in the most serious market abuse case investigated by the FSA and concerned whether the test for market abuse required a mental element and the interaction between the Act and the Code of Market Conduct.
Financial services: Betton v FSA [UKUT] (FS) – Conducted the trial for the FSA in a related market abuse case to Winterflood concerning the same share ramping scheme. T he FSA’s decision to prohibit and fine Mr Betton was upheld by the Upper T ribunal.
T ax: DSG Retail Limited v HMRC [2009] UKFT T 31 – instructed by HMRC in the first transfer pricing case to be heard in the UK, concerning Dixons’ extended warranty business. T his has become an extremely important precedent. Following the success of this case, Michael was then instructed by HMRC, through Hogan Lovells, on a massive transfer pricing and CFC case concerning pharmaceutical giant, Astrazeneca. T he case settled shortly before what would have been a 15 week trial. As a result of his expertise in this area, Michael has appeared for the last two years on the transfer pricing panel at the T ax Dispute
Resolution and Litigation Summit.
Commercial dispute resolution/International arbitration: Michael has acted for the court-appointed Receiver in the infamous, long-running, Masri litigation. Masri v Consolidated Contractors International Co Sal [2011] EWHC 409 (Com) and Consolidated Contractors (Oil and Gas) Co SAL v Canadian Nexen Petroleum Yemen [2011] EWHC 837 (QB). T he Receiver was directed by the Court to begin arbitration proceedings against the Canadian oil company that operated a concession in Yemen as part of Mr Masri’s attempts to enforce his $100m judgment. T he international arbitration was expedited and heard in Geneva where it had to consider complex multi-jurisdictional issues involving Yemeni, Lebanese, Canadian as well as English law in what was a ground-breaking attempt by the English Receiver to gain control of foreign assets by arbitration.
Insolvency: Michael, instructed by Clydes, acted for the successful applicant in Minmar (929) Ltd v
Khalatschi[2011] BCC 485 which has caused a stir among insolvency practitioners. Michael persuaded the Chancellor to set aside the appointment of administrators because of the directors’ failure to hold a proper board meeting and for a failure to serve notice on the company pursuant to Insolvency Act 1986 Sch B1 para 26. T he latter point has meant that many administrations are now invalid and numerous consequential applications to court to correct the position have had to be made.
Consumer credit: Log Book Loans Ltd v OFT [2011] UKUT 280 (AAC). Michael acted successfully for the appellant companies in relation to one discreet but important point of law, namely whether a bill of sale attested by an employee of the grantee is valid under the Bills of Sale Acts. T his perhaps arcane area of law was vital for the appellant companies because all their thousands of bills of sale had been executed in this way. T he Upper T ribunal allowed the companies’ appeal from the First T ier T ribunal.
Michael has been recommended over the years in both Chambers and Partners UK Guide and Legal 500 for:
Company
Restructuring and Insolvency T ax
Here is a selection of the comments from the directories:
“He is very good with clients and his cross-examination skills are formidable” (Chambers and Partners, 2014) “He is very bright, very pragmatic and very good on his feet” (Chambers and Partners, 2014)
“T ax avoidance and transfer pricing expert, Michael Green QC, “an excellent advocate, with a clear and authoritative delivery” (Legal 500).
“the “praqmatic and client friendly” Michael Green QC of Fountain Court Chambers. Green has recently been handling substantial tax avoidance/evasion and transfer pricing cases on behalf of HMRC, and is praised for his commercial perspective. He is “incredibly effective in court.” (Chambers and Partners UK Guide)
“Michael Green QC “Is prepared to grapple with difficult issues and roll his sleeves up.”” (Legal 500)
“Market sources find Green an “impressive, very intelligent and likeable practitioner”” (Chambers and Partners UK Guide)
“..well supported in the market is new silk Michael Green QC of Fountain Court Chambers. Highly regarded for his pragmatic approach, Green has been advising HMRC on various issues arising out of companies in administration, involving the liability of the administrators to account to HMRC for post-administration VAT .” (Chambers and Partners UK Guide)
“Fountain Court’s Michael Green is “intelligent and excellent when handling clients.” He continues to act for the Department of Business, Enterprise and Regulatory Reform and Official Receiver in winding-up and
directors’ disqualification proceedings. In the past year he has dealt with the winding-up of First Solution Money T ransfer, BuyBulgaria and Nationwide Legal Services. He also handles work for HMRC, particularly in the area of tax evasion, and is known for being “commercially minded, efficient and practical.” (Chambers and Partners UK Guide)
“Michael Green of Fountain Court Chambers is another junior with a notable practice, whom sources describe as a “fantastic practitioner with great knowledge immediately at his fingertips.” (Chambers and Partners UK Guide)
“Michael Green of Fountain Court Chambers is described as “the perfect mixture of practicality and
intelligence.” Modest and pleasant to work with, he impresses clients as he is “commercially minded and very helpful in his opinions”(Chambers and Partners UK Guide.
“very straight up and capable“….with his “silky-smooth delivery” commentators believe “he won’t remain a junior for much longer.” “very impressive.” (Chambers and Partners UK Guide)
University College School, Hampstead MA, Jesus College, Cambridge
Junior Counsel to the Crown (A Panel), 1997 – 2008 DT I Inspector, 1997
Member of Independent Monitoring Board (formerly Board of Visitors) of HMP Wormwood Scrubs Chancery Bar Association
Commercial Bar Association Revenue Bar Association
British Association of Sport and Law
EDUCATIO N
Admitted to the Bars of the Cayman Islands and Uganda
Michael’s background in commercial chancery chambers has led to him specialising and being instructed in various types of commercial litigation often involving elements of company/insolvency law, financial services and/or tax. Michael has substantial trial experience and the principal focus of his practice is on advocacy, both written and oral, for which he has a strong reputation whether it is factual or expert cross examination or arguing complex legal issues in the appellate courts. As can be seen from his recent practice, Michael has been instructed in a diverse range of matters, a number of which have been high-profile and have become important reported cases.
Michael recently acted on behalf of the executive directors in the high-profile disqualification case brought by the Secretary of State in relation to the Farepak Christmas savings business. Michael conducted almost all of the cross examination of the Secretary of State’s witnesses and this directly led to the collapse of the case. In the Judge’s concluding remarks, he said that the directors are “rightly to be vindicated” and that no justified complaint could be made against them.
Michael has also recently been acting on company/insolvency and tax cases overseas, including in the Cayman Islands on a contested just and equitable winding up petition, in the Isle of Man in proceedings for breach of directors’ duties in relation to an AIM listed investment fund, and in Uganda on a massive tax case against the Uganda Revenue Authority.
Michael was for many years a junior on the T reasury A Panel and he acted for and advised Government departments including HMRC, DBIS, the Home Office and the Department of Health in relation to areas such as directors disqualification, public interest winding up, tax evasion, health service PFI projects, the London Olympics, the disposal of Naval bases and immigration. He continues to be instructed by the Government, HMRC and regularly by the FSA/FCA.
Company
Between 1997 and 2008 Michael was one of the Junior Counsel to the Crown (A Panel), advising and acting principally for the DT I/BERR, now DBIS, in public interest winding up petitions (based on
disreputable/fraudulent trading including illegal lotteries, money circulation, timeshare, whisky and many other scams), directors’ disqualification proceedings (both following insolvency and investigation) and company investigations, some of which have been reported and are high-profile. Since a large number of these cases fight, Michael gained extensive experience of conducting trials himself (without a leader) and cross-examining in relation to issues of dishonesty and commercial probity. In silk, Michael has continued to act in such cases. Michael has also acted in a significant number of company law cases not involving the Government, such as shareholder disputes, s.459 (s.994 Companies Act 2006) unfair prejudice petitions and the proper conduct of meetings.
In addition, in 1997 Michael was appointed under s.177 of the Financial Services Act 1986 to conduct a confidential but wide-ranging insider dealing inquiry.
Major reported cases in this field are as follows:
Re Cybernaut Growth Fund LP; Cayman Islands Grand Court, judgment 9.9.13
Re European Home Retail; Farepak Food and Gifts Ltd; Secretary of State v Fowler and ors; Statement of Peter Smith J 21.6.12 as to collapse of Secretary of State’s case
Re Paycheck Services Ltd: HMRC v. Holland [2011] Bus LR 111 (Supreme Court) [2009] Bus LR 1 (first instance); [2010] Bus LR 259; 2 BCLC 309 (Court of Appeal).
Re Canterbury Travel (London) Ltd; Collins v Collins [2010] All ER (D) 133 Re Morija plc [2008] 2 BCLC 313; [2007] All ER 334
Dashfield and Shepherd v. Davidson [2008] BCC 222
Re Finelist plc; Secretary of State v Swan and ors [2005] BCC 596
Monnington v Easier plc [2006] 2 BCLC 2283; [2005] EWHC 2578 (Ch) Hough v Hardcastle [2006] BCC 8
Domoney v Godinho [2004] 2 BCLC 15
In re Drivertime Recruitment Ltd [2005] 1 BCLC 305 Secretary of State v Walker [2003] 1 BCLC 363
Secretary of State v Swan: Re Finelist plc [2004] BCC 877, [2003] EWHC 1780; The Times 18.8.03 Re Derek Colins Ltd and ors New Law Online 31.7.02
Re Travel Time Ltd and other companies [2000] 1 BCLC 427 Secretary of State v Deverell [2001] Ch 340
Re: Aurum Marketing Ltd [1999] 2 BCLC 498 Re: Funtime Limited [2000] 1 BCLC 247 Re: Kaytech International plc [1999] 2 BCLC 35 Re: Barings Plc [1998] BCLC 590
Re: City Pram & Toy Ltd [1998] BCC 537 Financial services
As well as Michael’s appointment under s.177 of the Financial Services Act 1986 to conduct an insider dealing inquiry, he has advised on a considerable number of matters in this field, including the Department of T ransport concerning the lawfulness of a tender process under FSMA, the FSA concerning the Second Company Law Directive, an issuer in relation to a proposed IPO, the FSA concerning Northern Rock and
more particularly on the scope of the “market abuse” provisions. He has acted on behalf of the FSA in one of its largest market abuse cases, one aspect of which went to the Court of Appeal (see below) and in relation to an attempted challenge by way of judicial review to a decision of the RDC. As the work in this field is predominantly advisory or within disciplinary tribunals, there are few reported decisions, but Michael was involved in the following:
Wilford v FSA [2013] EWCA Civ 677; [2012] EWHC 1417 (Admin) Winterflood v FSA [2010] Bus LR 1622 (Court of Appeal)
Betton v FSA [2010] [UKUT] (FS) SIB v FIMBRA [1992] Ch 256
RE: BIG International New Law Online, 15.9.00
Re: Wimbledon and Merton Democratic Society [1999] T he T imes 7.1.99. Restructuring/insolvency
T here is a thin dividing line between Michael’s Company Law and Insolvency work, in that the numerous disqualification and public interest winding up cases that he has done could be classed in either area. In Insolvency, Michael has acted in some cases for HMRC seeking to recover sums following liquidation from directors of companies who have unlawfully or fraudulently avoided tax. Michael has also advised and acted in relation to claims for the recovery of assets of insolvent companies (preference, transactions at undervalue, wrongful trading and misfeasance claims) and in relation to the powers of liquidators and receivers.
Reported insolvency cases include:
Re Cybernaut Growth Fund LP; Cayman Islands Grand Court, judgment 9.9.13
Re European Home Retail; Farepak Food and Gifts Ltd; Secretary of State v Fowler and ors; Statement of Peter Smith J 21.6.12 as to collapse of Secretary of State’s case
Re Instant Access Properties Ltd; Secretary of State v Gifford [2012] 1 BCLC 710 Minmar (929) Ltd v Khalatschi [2011] BCC 485
Re Paycheck Services Ltd: HMRC v. Holland [2011] Bus LR 111 (Supreme Court); [2009] Bus LR 1 (first instance); [2010] Bus LR 259; 2 BCLC 309 (Court of Appeal).
Monecor v. Ahmed [2008] BPIR 458; [2008] All ER(D) 22; Tradition (UK) Ltd v Ahmed [2008] EWHC 2946 In Re Rodencroft Ltd [2004] 1 WLR 1566
Re: Cranley Mansions [1994] 1WLR 1610 Re: Land & Property Trust plc [1991] BCC 446 T ax
Michael has been instructed by HM Revenue & Customs in a number of large matters which has led to him acquiring considerable expertise in some quite specialised areas of tax litigation. T hese are in the
following areas: International Tax
Michael is instructed by an international oil and gas company in relation to its tax position in Uganda. Michael has been admitted to the Ugandan Bar to argue the appeals in the High Court and possibly beyond.
Transfer Pricing
(1) DSG Retail Ltd v HMRC [2009] UKFT T 31 – the first contested transfer pricing case heard in the UK under the new legislation.
(2) Michael was subsequently retained by HMRC and Hogan Lovells on the next massive transfer pricing case to be litigated with pharmaceuticals giant, AstraZeneca. T he trial was scheduled to run for 15 weeks in mid 2010 but settled shortly before. T he case would have involved extensive factual and expert evidence covering many years of trading. It also concerned the CFC rules.
(3) Michael has participated in a transfer pricing panel discussion at the T ax Dispute Resolution and Litigation Summits in 2010 and 2011
Tax evasion
Stow v Stow [2008] Ch 461 – T he substantive case settled following a mediation – there was due to be a 3 week trial which Michael would have led on.
Carousel fraud
Michael has been instructed by HMRC in a number of carousel or MT IC (missing trader intra community) fraud cases
VAT
Michael has advised HMRC on a number of administrations and liquidations in relation to VAT received by the office-holder.
Michael has considerable experience of heavy civil fraud claims and the accompanying complex interlocutory activity. Inevitably some such cases do not progress beyond the preliminary stages and therefore are not reported. For instance, Michael has recently advised and acted in cases concerning fraudulent employees/directors misappropriating assets and business opportunities in which search, freezing and Norwich Pharmacal orders were obtained. Major reported cases in which Michael has been involved include:
Shalson v Russo [2005] Ch 281, [2003] EWHC 1637, The Times 3.9.03; also contempt proceedings [2002] EWHC 399
MacMillan v BIT [1995] 1 WLR 978, [1993] 1 WLR 837; (1995) ICR 385 Derby v Weldon (No 10) [1991] 1 WLR 660
Fountain Court Chambers Fountain Court, Temple London EC4Y 9DH [email protected] LO NDO N Tel: +44 (0)20 7583 3335 Fax: +44 (0)20 7353 0329 DX: 5 LDE SING APO RE
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