Michael Green
Call Date
1987
Practice Areas
Michael Green has a broad commercial and civil practice, specialising in:
- Company Law
- Insolvency
- Civil Fraud
- Financial Services; and
- Professional Negligence
Recommendations (Practitioners' Guides)
Recommended in Chambers UK, Legal 500 and Legal Experts in Company and Insolvency; comments from this year's editions (2007/8) include: ""very straight up and capable"....with his "silky-smooth delivery" commentators believe "he won't remain a junior for much longer" "very impressive".
Education
University College School, Hampstead
MA, Jesus College, Cambridge
Appointments
Junior Counsel to the Crown, (A Panel) 1997
DTI Inspector, 1997
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 3 large cases for HMRC: one is going to the Court of Appeal following a successful trial - Re Paycheck Services Ltd: HMRC v. Holland [2008] All ER(D) 319; another concerns alleged tax evasion (an interim jurisdictional judgement in the case has been reported - Stow v. Stow [2008] BPIR 673; [2008] STC 2298; [2008] EWHC 495 (Ch): and one on transfer pricing.
- He is also acting 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
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 the main fraudster for a 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.
Company Law
Since 1997 Michael has been one 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 has extensive experience of conducting trials himself (without a leader) and cross-examining in relation to issues of dishonesty and commercial probity. Michael has 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 Payback Services Ltd: HMRC v. Holland [2008] All ER(D) 319
Large case brought by HMRC (for whom Michael succcessfully acted) 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 case 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 [2007] EWHC 3055; [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 a director under s.17 Company Directors Disqualification Act 1986 despite his 10-year disqualification.
Dashfield and Shepher v. Davidson [2008] BCC 22
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.
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:
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.
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 Raycheck Services Ltd: HMRC v. Holland [2008] All ER (D) 319
See Company section above.
Monecor v. Ahmed [2008] BPIR 458; [2008] All ER (D) 22
The trial of this matter has just taken place but the strike out proceedings have been reported. It concerns a challenge to an Individual Voluntary Arrangement ("IVA") entered into by a high-profile individual who has personal liabilities of over £20m. The challenge is on the basis of a number of disputed debts that the applicant claims were contrived in order to get a 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.
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".