Michael Green QC
Call date
1987
Silk date
2009
Practice Areas
Michael Green has a broad commercial and civil practice, specialising in:
- Company Law
- Insolvency
- Civil Fraud
- Financial Services;
- Tax; and
- Professional Negligence
Recommendations (Practitioners' Guides)
Recommended in Chambers UK, Legal 500 and Legal Experts in Company and Insolvency.
Comments from the 2008 editions include: ""very straight up and capable"….with his "silky-smooth delivery" commentators believe "he won't remain a junior for much longer." "very impressive.”
Chambers & Partners UK 2009 contained the following praise:
Chancery – “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 Transfer, 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.”
Company – “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.”
Restructuring/Insolvency – “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.”
In the Legal 500 UK 2009 edition, Michael was ranked in the second tier of juniors in the Company section.
Education
University College School, Hampstead
MA, Jesus College, Cambridge
Appointments
Member of the British Association for Sport and Law (2009 -)
Junior Counsel to the Crown (A Panel), 1997 – 2008
DTI Inspector, 1997
Member of Independent Monitoring Board (formerly Board of Visitors) of HMP Wormwood Scrubs
Professional Experience
Michael Green has a wide-ranging commercial litigation practice with particular emphasis and experience in company law, insolvency, civil fraud, financial services and professional negligence (see below). He has also been engaged in more general commercial litigation/advice, such as, a multi-million pound claim for sums due following the management buy-out of a large construction company, advising the Government on the contractual implications surrounding the Stratford Rail Lands needed for the London Olympics, the privatisation of local bus services and the disposal of Naval bases and obtaining an emergency injunction to ensure continued access by a mortgage broker to its database.
In the past year or so, Michael's practice has broadened in the following ways:
- He is handling a number of large and important cases for HMRC and has moved into the tax field: one has recently been heard in the Court of Appeal (judgment awaited) following a successful trial - Re Paycheck Services Ltd: HMRC v. Holland [2008] 2 BCLC 613; [2009] Bus LR 1 – (see below); another concerns alleged tax evasion (an interim jurisdictional judgment in the case has been reported – Stow v. Stow [2008] Ch 461; two transfer pricing cases, one of which has been heard by the Special Commissioners and the other is due to be tried over 12-14 weeks in 2010; and some carousel/MTIC cases.
- He has also acted for HMRC in an unusual claim for compensation in respect of sequestered assets by an acquitted defendant after a 9 month criminal trial for carousel fraud;
- he handled 3 immigration cases in the Court of Appeal for the Home Office (in which Human Rights issues arose);
- he advised a teenager claimant who received one of the largest personal injury awards after he was made tetraplegic in a gymnastics accident (the advice concerned recoverability against the members and their insurers of the unincorporated gymnastics club);
- he has advised the Department of Health on a number of potential claims/litigation concerning large PFI projects.
Recent Practice
Company Law
Between 1997 and 2008 Michael wasone of the Junior Counsel to the Crown (A Panel), advising and acting principally for the DTI/BERR 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. Michael also acted in a significant number of company law cases not involving the DTI, such as shareholder disputes, s.459 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 Paycheck Services Ltd: HMRC v. Holland [2008] BCLC 613; [2008] BCC 37; [2009] Bus LR 1
This case has recently been heard by the Court of Appeal and the judgment will inevitably be an important authority. Michael acted for HMRC against a husband and wife who were said to be de facto directors of 42 composite companies (all in liquidation) and who, as part of a tax avoidance scheme, were said to have paid millions of pounds in unlawful dividends without providing for the companies’ potential liability to higher rate corporation tax. The first instance judgment is an authority on de facto directorship, the test for lawful dividends, whether there is strict liability on directors for paying unlawful dividends, the availability of s.727 Companies Act 1985 and the width of discretion under s.212 Insolvency Act 1986.
Re Morija plc [2008] 2 BCLC 313; [2007] All ER 334
A long-running directors disqualification case in which Michael conducted the trial on behalf of BERR but which ended up as a rare appeal to the Judge from the Registrar’s refusal to grant a defendant permission to act as a director under s.17 Company Directors Disqualification Act 1986 despite his 10-year disqualification.
Dashfield and Shepherd v. Davidson [2008] BCC 222
This was a complicated and highly technical case concerning the operation of the provisions concerning a company’s purchase of its own shares (s.162 Companies Act 1985) and whether the Duomatic principle (unanimous consent of all the shareholders) could apply to override the statutory formalities. Previous first instance authority was not followed by the Judge.
Re Finelist plc; Secretary of State v Swan and ors [2005] BCC 596
High profile and unusual directors disqualification trial concerning "cheque kiting" in a publicly listed company in which the duties of a CEO and non-executive director to find out what was going on and in relation to a Class 1 transaction were examined.
Monnington v Easier plc [2006] 2 BCLC 2283; [2005] EWHC 2578 (Ch)
Case concerning the extent of the Court's jurisdiction under s.371 of the Companies Act 1985 to call a meeting of a company.
Hough v Hardcastle (2006) BCC 8
Unfair prejudice petition in which the Judge considered whether allegations concerning an associated Isle of Man company could be the affairs of an English company for the purposes of s.459 and the application of limitation/laches to such petitions
Domoney v Godinho [2004] 2 BCLC 15
Dispute as to the properly appointed directors of a company - issues included whether the Court can look to the beneficial owner of shares for the purpose of the Duomatic (unanimous consent) principle
In re Drivertime Recruitment Ltd [2005] 1 BCLC 305
Trial of a contested public interest petition concerning the mis-selling of franchises
Secretary of State v Walker [2003] 1 BCLC 363
Disqualification appeal - whether sale of company's assets after insolvency but before liquidation made the directors unfit
Secretary of State v Swan: Re Finelist plc [2004] BCC 877, [2003] EWHC 1780; The Times 18.8.03
Leading authority on the fair procedure to be adopted by the Secretary of State in issuing and pursuing disqualification proceedings
Re Derek Colins Ltd and ors New Law Online 31.7.02
Public interest winding up petition trial concerned with charity support advertising - selling advertising space in charity publications on the pretext that it was a donation to charity, whereas the company only paid 2-3% to the charity concerned.
Re Travel Time Ltd and other companies [2000] 1 BCLC 427
Public interest winding up trial concerned with the timeshare industry - whether cold-calling the public with the offer of a free holiday was deceptive
Secretary of State v Deverell [2001] Ch 340
Important case in the Court of Appeal on the definition of shadow directors - it is now the leading authority - appeared for the Secretary of State.
Re: Aurum Marketing Ltd [1999] 2 BCLC 498
A public interest winding up petition - appeared for the Secretary of State - the particular issue was the personal liability of a director for the costs of the proceedings. Successfully appealed to the Court of Appeal in what is the leading authority on the costs' incidence of public interest petitions.
Re: Funtime Limited [2000] 1 BCLC 247
A directors disqualification case in which the issues were improper preferences and transactions and trading at the expense of the Crown.
Re: Kaytech International plc [1999] 2 BCLC 351
Leading authority on definition of de facto directors and potential liability of non-executive/nominee directors - appeared for Secretary of State in Court of Appeal and in trial below.
Re: Barings Plc [1998] BCLC 590
Acted for a respondent director in disqualification proceedings in which the use of hearsay evidence was challenged.
Re: City Pram & Toy Ltd [1998] BCC 537
Acted for the Secretary of State in this successful appeal in disqualification proceedings concerning trading while insolvent.
Insolvency
There 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 the Inland Revenue 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 Paycheck Services Ltd: HMRC v. Holland [2009] Bus LR 1
See Company section above.
Monecor v. Ahmed [2008] BPIR 458; [2008] All ER(D) 22; Tradition (UK) Ltd v Ahmed [2008] EWHC 2946
Both the trial of this matter and the strike out proceedings have been reported. It was a challenge to an Individual Voluntary Arrangement ("IVA") entered into by a high-profile individual who had personal liabilities of over £20m. The challenge was on the basis of a number of disputed debts that the applicant claimed were contrived in order to get the vote through and a number of alleged material irregularities concerning the Proposal and the conduct of the meeting.
In Re Rodencroft Ltd [2004] 1 WLR 1566
Important case deciding the standing of a contributory to oppose a winding up petition, in this case a public interest petition
National Westminster Bank v. Spectrum [2004] BCC 660
Acted as Counsel for the Inland Revenue for the purposes of its application for permission to appeal to the House of Lords which was granted - this is one of the most important insolvency cases of recent years concerning the effectiveness of banks' fixed charges over book debts.
Re: Cranley Mansions [1994] 1WLR 1610
Acted for supervisor/chairman of voluntary arrangement in case concerning voting rights of creditors and the liability of the chairman.
Re: Land & Property Trust plc [1991] BCC 446
Acted for companies on their applications for administration orders.
Civil Fraud:
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
Extraordinary fraud litigation with continual Court appearances over 2 years including committal to prison of main fraudster for maximum period of 2 years for breaches of freezing and search orders – the trial was ultimately between the innocent victims of the fraud as to the ownership of the fraudster’s interest in a luxury yacht – this gave rise to complicated legal and factual issues concerned with tracing of assets and Rimer J’s judgment is now a leading authority in this field
MacMillan v BIT [1995] 1 WLR 978, [1993] 1 WLR 837; (1995) ICR 385
One of a series of Maxwell-related cases in which Michael was instructed – in all the cases he acted for Lehman Brothers which was sued by various parties as they had unwittingly received Maxwell pension and other assets –the long-running case decided by Millett J concerned constructive trusts, equitable priorities and the conflict of laws.
Derby v Weldon (No 10) [1991] 1 WLR 660
Michael acted for the 1st and 2nd individual defendants in this well-known case (there are a large number of reported interlocutory decisions in it) for a number of years principally in preparation and during the trial – the case concerned alleged fraudulent cocoa dealing on the futures exchange.
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 Transport 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 recently been instructed by the FSA in a large market abuse case. 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:
FSA v Winterflood – (in the Financial and Services and Markets Tribunal)
Acting for the FSA on the reference to the Tribunal in the largest market abuse penalty ever imposed by the FSA. The Tribunal had to decide pure points of law as to whether, because of the FSA’s own Code of Market Conduct, it was necessary to prove an “actuating purpose” on the part of a market maker in order to establish that it had committed market abuse within the meaning of s.118 FSMA 2000.
SIB v FIMBRA [1992] Ch 256
Acted for SIB - ruling on investors compensation scheme.
RE: BIG International New Law Online, 15.9.00
Acting for DTI - public interest winding up and injunctions under Financial Services Act restraining an unauthorised collective investment scheme.
Re: Wimbledon and Merton Democratic Society [1999] The Times 7.1.99. Appeal from decision of the Registrar of Friendly Societies.
Tax
Recently 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. These are in the following areas:
Transfer Pricing
(1) DSG Retail Ltd v HMRC – this was the first contested transfer pricing case heard in the UK under the new legislation. It is therefore an extremely important decision and precedent. Michael successfully acted for HMRC with David Goy QC at the 3 week hearing. Following the untimely death of Tom Ivory QC, Michael was responsible for the cross examination of the factual witnesses.
(2) Michael has since been retained by HMRC on a further massive transfer pricing case that is due to be heard over 12-14 weeks in 2010.
Tax Evasion
Stow v Stow [2008] Ch 461
This case has recently settled (there was due to be a 3 week trial in May 2009 which Michael would have led on). The reported decision concerned the jurisdiction of the High Court to try the matter when it was already before the Special Commissioners. The case concerned alleged tax evasion (Income Capital Gains and Inheritance Tax) by the use of a Nigerian gentleman into whose name substantial assets were said to have been put and offshore trusts.
Carousel Fraud
Michael has been instructed by HMRC in a number of ongoing carousel or MTIC (missing trader intra community) fraud cases in which goods are transferred through various complicated chains of companies and at the end of the chain following a sale to an EU country there is normally a large claim made for a refund of input VAT.
Professional Negligence
Michael has acted in a number of large professional negligence actions, including in the Lloyds litigation, for Arthur Andersen who were defending proceedings brought against them for negligence by names and in a case concerning an alleged negligent failure to advise by accountants in a tax matter. Michael has also acted for solicitors/SIF in a number of professional negligence cases.
A reported case in this area is:
Younger v Saner [2002] EWCA Civ 1077
Appeal in proceedings brought by a woman against a solicitor who had been appointed by the Court as the administrator of her father's estate and in which it was alleged that the solicitor has negligently lost a valuable opportunity to realise a substantial interest in a hotel owned by the estate - Robert Walker LJ referred to Michael's "skilful and well crafted submissions" and "excellent advocacy".