Michael Furness KC

Professional liability

Michael has a significant practice in the field of professional liability, and frequently advises and represents both claimants and defendants. For the most part he undertakes cases which involve negligence in the context of either tax advice and drafting, or occupational pension schemes. As he has acknowledged expertise in both of these areas, he is able to combine the technical knowledge of the defendant’s field of practice with the litigation skills needed to prosecute or defend the claim. In both types of negligence reported cases are relatively few, but negotiated settlements are frequent, so an understanding of the intricacies of the advice which is the subject of the claim is vital for a realistic early assessment of the prospects of success.

Recent examples of his work in the field of tax-related professional negligence:

• Barker v Baxendale Walker [2019] – appearing for the successful claimant which is now the leading Court of Appeal decision on the duty of tax advisers to warn clients of the risk their advice might be wrong.
• Advising on the defence of a claim of negligent drafting of an accumulation and maintenance settlement – finding reasons why the settlement in fact complied with section 71 and why, in any event, the drafting corresponded to standard practice at the time.
• Advising on the merits of a claim in respect of advice given 12 years’ earlier that a particular tax avoidance scheme would work. Looking at the changes in the approach of the courts to the meaning of trading in the context of tax avoidance. Was the advice negligent at the time it was given – and was the duty to warn complied with?
• Advising on, and drafting pleadings for, a claim against Guernsey trustees for failing undertake a tax mitigation strategy in advance of the life tenant’s death.
• Advising on claims in negligence in respect of losses incurred by reason of utilising inappropriate employee benefit trust structures (this was the essential complaint in Barker v Baxendale Walker (above), but also in other cases).

Recent examples of his work in the field of pension scheme negligence:

Advising and acting for clients (both claimant and defendant) in relation to

• Mistaken drafting of scheme rules.
• Failed equalisation.
• The failure to ensure that amending instruments were properly executed.
• The making of improper investments by scheme trustees.
• The conduct and compromise of remedial litigation.

Cases involving mistakes in drafting, or improperly executed amendments, often require technical pensions expertise in order to assess, and, if necessary, pursue, remedial measures such as rectification, or declarations based on estoppel or other equitable doctrines. Michael has extensive experience in litigating these issues – see for example Univar v Smith [2020] Sovereign Trustees v Lewis [2016] MNOPF v Watkins [2013] Walker Morris Trustees v Masterson [2009] Scania v Wager [2007] Sovereign Trustees v Glover [2007].

In most negligence cases, he is also called on to advise on questions of quantification of loss, granted the various measures which may be adopted for that purpose. He is experienced in cross-examining expert actuarial evidence (see for example Univar v Smith [2020], Granada UK v Pensions Regulator [2018]).

He has also been asked to provide a preliminary expert report as to the standard of knowledge to be expected of a competent professional advising on scheme amendments 20 years ago, and has provided expert advice to insurers on other pensions issues in the context of professional negligence actions being handled by non-specialist counsel.

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Tax

Michael has extensive experience of litigating tax disputes, and advising on tax, in the UK and Hong Kong.

He was Standing Counsel to the Inland Revenue in Chancery Matters from 1995 to 2000 (when he took silk) and since then has regularly appeared for taxpayers and revenue authorities here and in Hong Kong. He has argued more than 20 tax appeals in the Court of Appeal (not counting cases where he was led) and has appeared in 7 tax appeals in the House of Lords and Supreme Court. This is on top of an even larger number of cases decided in the lower courts and tribunals. He can draw on his experience as a litigator in other fields, such as professional negligence, occupational pension schemes and contentious trusts, in his handling of witnesses and experts, and in the presentation of complex technical issues in a way which the Court finds helpful and engaging.

He is also brought in by clients who wish to undertake a preliminary assessment of the merits of a prospective tax dispute. His extensive experience in acting for taxpayers and revenue authorities means that he is well placed to evaluate the likely response of a revenue authority or a tax tribunal.

Closely allied to his tax litigation practice is his experience in related professional negligence litigation. He conducted the trial and the subsequent successful appeal in the case of Barker v Baxendale Walker, which is now the leading case on the duty of tax advisers to warn clients of the risk their advice might be wrong. Of course, most of these cases do not fight to a trial, but Michael regularly advises on and drafts pleadings for such claims. He advises the BMIF on tax-related negligence issues. Again, he benefits from the fact that he has experience of conducting a wide range of negligence claims, not just tax-related claims.

Because of his expertise in the field of occupational pensions and charities, he is often asked to advise on the taxation of pension schemes, and on tax issues facing charities.

Recent notable tax appeals include:

• Scott v HMRC [2018] (UT) and [2020] (CA). Representing the taxpayer in a dispute over the interaction of corresponding deficiency relief with the rate of CGT.
• Proteus and Samarkand v HMRC [2017]. Representing the taxpayers in the Court of Appeal in a tax appeal to, combined with judicial review of HMRC practice concerning partnerships investing in films.
• Morgan Lloyd v HMRC [2016] challenging the convention compatibility of the regime for taxing the acquisition of interests in taxable property by registered pension schemes.
• Hargreaves v HMRC [2015]. Appearing in the Court of Appeal (alongside David Goldberg KC and Claire Montgomery KC) on an appeal which raises the issue of the right of a taxpayer to require HMRC to justify making an out of time assessment before the taxpayer is required to make his defence on the merits.
• Re Travers [2013]. Representing the estate of P L Travers in a successful challenge to HMRC’s attempt to impose the special rate of income tax for trusts on royalties from the Mary Poppins stage musical.
• Mayes v HMRC [2011] Successfully defending a tax avoidance scheme in the Court of Appeal.
• DCC Ltd v HMRC [2010] Successfully representing HMRC in the Supreme Court in an appeal on the taxation of gilt repos.

He also advises, and appears for the Hong Kong Commissioner of Inland Revenue. He   has appeared in the Court of Final Appeal in Shui On Credit Co Ltd v CIR [2010] and Nice Cheer Investments [2012] and has made several appearances at first instance and in the Court of Appeal.

Recent examples of his work in the field of tax-related professional negligence include:

• Advising on the defence of a claim of negligent drafting of an accumulation and maintenance settlement – finding reasons why the settlement in fact complied with section 71 and why, in any event, the drafting corresponded to standard practice at the time.
• Advising on the merits of a claim in respect of advice given 12 years’ earlier that a particular tax avoidance scheme would work. Looking at the changes in the approach of the courts to the meaning of trading in the context of tax avoidance. Was the advice negligent at the time it was given – and was the duty to warn complied with?
• Advising on, and drafting pleadings for, a claim against Guernsey trustees for failing undertake a tax mitigation strategy in advance of the life tenant’s death.
• Advising on claims in negligence in respect of losses incurred by reason of utilising inappropriate employee benefit trust structures (this was the essential complaint in Barker v Baxendale Walker (above), and in other cases.

Recent issues on the taxation of pension schemes on which he has advised include:

• the potential loss of fixed protection due to inadvertent auto enrolment,
• the loss of fixed protection as a result of buying out using deferred annuities,
• the risk of unauthorised payment charges as a result of compromises of pension disputes, which result in backdated benefits being paid as lump sums and
• the liability of a SIPP provider in respect of alleged unauthorised payments stemming from the purchase by the SIPP of shares from the member at an overvalue.

He also advised on and represented the member of a scheme which was the subject of a pension liberation exercise, and successfully had the key part of the transaction set aside, thereby reducing tax exposure.

Recent examples of tax advice to charities include:

• How the interim managers of a charity which had been involved in a tax avoidance scheme should respond to the prospect of an appeal against HMRC’s refusal to allow gift aid on the contributions to the scheme (see The Cup Trust [2016]), where his Opinion was extensively cited by the Court as justifying the interim managers’ approach).
• Advising a charity in respect of potential abuses of the gift aid regime, and assisting it in devising a new structure for receiving donations.

Advising the donor to an EU based charity on securing recognition by HMRC of that charity for UK tax purposes.

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Trusts, probate and estates: contentious

Michael has extensive experience of litigating contentious trust disputes in many jurisdictions. He is accustomed to working with families in dispute with a view to devising litigation and negotiating strategies which offer the best chance of a successful resolution from the client’s point of view. Ideally such disputes will end in a compromise, which will usually need to be blessed by the Court. However, on occasion the issues need to be litigated at trial. At that point Michael can draw upon his extensive trial experience in a range of jurisdictions, not just in trust matters but in commercial litigation as well, in particular in occupational pensions, tax and related professional negligence. In the trusts field notable witness actions include:

• Re Univar [2020] – a 3-week witness action in which Michael’s client successfully obtained an order for the rectification of a trust deed.
• Labrouche v Frey [2016] – a long running trust dispute about an English law trust administered in Switzerland, which culminated in a 7 week trial, with significant amounts of expert testimony. Michael’s client (a trustee of the trust, as well as the life tenant) was acquitted of all the breaches of trust alleged against her. The case raised issues about trustee accounting, the meaning of wilful default, and tracing, as well as issues regarding the succession to founder’s rights in a Liechtenstein Anstalt.
• Re Fitzgerald [2014], a 2-week witness action concerning the validity of a will, involving allegations of incapacity and want of knowledge and approval.
• Recent trustee applications (both before the Supreme Court of Bermuda).
• Re the XYZ Trusts (16 Feb 2022) – appearing for a beneficiary on a Public Trustee v Cooper application seeking to amend a large scale re-organisation of a complex series of family trusts owning trading and investment companies.
• Re P Trusts (hearing in January 2023) representing a beneficiary supporting a trustee who wished to implement a distribution from family trusts in the face of opposition from other branches of the family. Judgment awaited.

Currently Michael is engaged in the following very high value trust disputes:

• Advising (with a view to representing) a defendant in the Lo family (Great Eagle) litigation in Hong Kong.
• Advising, with the intention of representing at trial, members of a family engaged in an application to reconstruct a Bermudian trust structure.
• Advising a trustee over an imminent dispute over the beneficial ownership of trust assets, and the trustee’s own conduct in relation to a BVI trust.
• Representing one of the principal beneficiaries of a Bermuda trust on an application to approve a restructuring of the trusts.

In the course of his career Michael has appeared in the Courts of Hong Kong (at all levels up to the Court of Final Appeal) Bermuda and Cayman. He has advised on and assisted in the conduct of litigation in Jersey, Guernsey, BVI and the Bahamas. He has also appeared as an expert witness on English law in Canada and the Netherlands.

Other trust cases in recent years include:

• Re P Trusts Supreme Court of Bermuda [2023] – contested application for approval for the distribution of a family trust.
• Re XYZ Trusts Supreme Court of Bermuda [2022] – contested application to approve a restructuring of family trusts.
• Re Hostage UK [2019] – an important decision on date of presumption of death of an individual kidnapped in the Yemen.
• Scullion v Cooper [2018] obtaining court approval for a compromise under which a trade union strike fund was dedicated to charity.
• Re L Trusts (Bermuda) [2015] Michael represented the plaintiff who was alleging undue influence in respect of a will. This five-day hearing concerned the question whether the trustees could defend the action at the expense of the trust.
• Rawstron v Freud [2014] represented the executors of Lucian Freud in a dispute about a secret trust created by his will.
• Day v RCM [2013], appearing in the Court of Appeal in linked appeals concerning an enduring power of attorney, inter vivos gifts of chattels and the rule in Strong v Bird.

Charity law

Before taking silk Michael appeared regularly for the Attorney-General in charity matters, and since then he has continued to advise charities on trusts and tax issues, and to undertake charity litigation (in the HSBC case referred to above he appeared for the Attorney-General of the Cayman Islands on charity aspects of the litigation – and see also Bayoumi v Womens Total Abstinence [2003] (CA)).

Recent work includes:

• Advising on the ability of a major museum to return artifacts which were subject to a moral claim by a third party.
• Advising a Russian-founded charity in connection with a Charity Commission investigation.
• Writing (with Robert Pearce KC) an Opinion for the Charity Law Society on the implications of the Supreme Court decision in Lehtimaki v Cooper for corporate charities.
• Advising a major grant-making charity on conflicts of interest with the family of the founder.
• Advising a religious charity on how to respond to a Charity Commission contention that its objects are not charitable and not for the public benefit.
• Advising the trustees of a charity (the Cup Trust) which had past involvement in a large-scale tax avoidance scheme.
• Advising a charity which had concerns about the way it had administered its gift aid donations.
• Advising on the legality of political donations made by wholly owned trading companies.
• Advising on the terms on which a major property development to further the charity’s objects should be undertaken.
• Over the last couple of years issues of governance within charities has been a major feature of his instructions, and has involved advising on conflicts of interest and managing the correct relationship between charities which share a trustee and have related objects.

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Trusts, probate and estates: non-contentious

Many contentious matters turn into non-contentious applications if they compromise, and many matters that start out non-contentious can become the subject of hostile litigation. Michael’s practice has, from the outset of his career, been based around trusts – their drafting and administration and the legal issues which they pose. He is therefore well placed to handle all types of trust issues, being not just a litigator, but a specialist trust lawyer as well, and, conversely, having the litigation experience to move from giving non-contentious advice to conducting contentious proceedings as the need arises.

During 2018 and 2019 he gave extensive advice and drafting services to the government of the British Virgin Islands on its economic substance legislation, and the relation regulations and code. He has also advised on the impact of AMLD 5 on offshore trust jurisdictions.

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