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Simon Mills
Commercial Team Leader
Called: 1994
[email protected]
"A formidable advocate and a must-have part of our
litigation arsenal." "Not only does he know his stuff,
but he's also good on his feet and he thinks outside the
box." Chambers & Partners
Profile
Simon Mills is an experienced commercial law barrister specialising in banking &
commercial finance, insolvency and asset recovery. As our Commercial Team Leader he’s
committed to providing a modern litigation and advisory service across all these areas.
Simon worked in business for 10 years before going to university, which gives him a solid
grounding in the real-world challenges facing modern businesses.
Simon is known for his user-friendly service and practical approach to helping his clients
who are mainly banks, financial institutions, companies and insolvency practitioners.
Simon is currently acting as an expert on the effect of VAT and the characterisation of
invoice discounting agreements in Ireland, and on proprietary rights and insolvency in sale
of goods transactions in a case in the Russian courts in Kaliningrad.
Directories rate Simon Mills as a leading junior barrister in Commercial Litigation,
commenting that he is “A formidable advocate and a must-have part of our litigation arsenal”
and “Brilliant at devising strategies and commercial solutions to the most complex issues.”
Description of Practice
Simon has long-understood the requirements of commercial clients, and works almost
exclusively in the specialist fields of:
Banking (including debentures, loans, guarantees, securities, cheque and mortgage
disputes)
Factoring, invoice discounting and trade finance
Commercial fraud and tracing remedies
Corporate insolvency (administrations, receiverships and liquidations)
Interim and urgent injunctions (particularly asset-freezing orders and proprietary
freezing orders, and post-judgment enforcement)
Sale of goods (domestic and international), agency and bailment
Directory Quotes
He gets things right and gives calm and considered advice.”
The Legal 500 UK 2016
“He never fails to provide excellent, timely advice.”
The Legal 500 UK 2015
“He is the first point of call for highly technical contract disputes and any litigation requiring
the touch of a master strategist.” “A formidable yet polite practitioner, he’s very down-toearth and absolutely outstanding on his feet.”
Chambers & Partners 2017
“A formidable advocate and a must-have part of our litigation arsenal.” “Not only does he
know his stuff, but he’s also good on his feet and he thinks outside the box.”
Chambers & Partners 2016
Recommendations
Simon is consistently recommended in Chambers UK as a leading member of the Bar in the
field of Commercial Dispute Resolution. He is “technically brilliant and is a master tactician.
In court, he is a fighter, and he’s a barrister you always want on your side, rather than
against you” (2015); “an established name who “always delivers quality work,” sources …
applaud his “commercial awareness and tactical brilliance” and confirm that he consistently”
adds value and achieves results” (2013).
Sources say he “puts his heart and soul into his work and is intensely competitive, whilst
always remaining realistic about the likely success of a case” (2011), he is an “excellent
communicator” with “specialist expertise in banking, corporate insolvency, … injunctions
and commercial fraud and tracing remedies” (2012) and is “charming, extremely
knowledgeable and thoughtful” (2014).
Simon is regularly invited to speak on banking and finance law. He has addressed the
annual conference of the Insolvency Lawyers’ Association on “Title Financing and Invoice
Discounting Meets Insolvency”, and in 2014 he is talking on “Secured Creditors’ Rights:
Proprietary Rights in Corporate Insolvency” for R3.
Simon is also the lead presenter for MBL’s highly-regarded “Factoring and Invoice
Discounting Conference”.
Simon is consistently recommended in the leading directories in the fields of Banking and
Finance and Commercial Dispute Resolution, and is again recommended in the most recent
edition of Chambers UK (2014).
Qualifications
Wolfson College Cambridge – History MA (Cantab)
Articles and Publications
Simon is the author of two of the most respected and widely-read commercial law
publications:
“Salinger on Factoring” (5th ed., Sweet & Maxwell 2016). This is recognised as the leading
textbook on receivables financing. Simon was primarily responsible for rewriting the new
edition.
“Goode on Proprietary Rights and Insolvency in Sales Transactions” by Prof. Sir Roy
Goode (3rd ed., 2009) (sole editor). This important book deals with the nature of proprietary
rights that can arise in the context of contracts for the sale of goods, both domestic and
international. The five chapters contain a penetrating analysis of the following topics: (i)
Concepts of ownership, possession and sale, (ii) Acquiring title to oil, gas, minerals and
precious metals, (iii) Buying through an agent, (iv) Dealings in warehoused goods and
goods in transit, (v) Reservation of title and tracing rights in goods, products and proceeds.
‘Plugging the gap: entire agreement and non-reliance clauses’ (2001) 22 Company Lawyer,
189. An analysis of the nature and effect of non-reliance and entire agreement clauses,
commenting upon Inntrepreneur Pub Co Ltd v East Crown Ltd [2000] 3 EGLR 31 and EA
Grimstead & Son Ltd v McGarrigan [1998/1999] InfoTLR 384.
Important Cases
Case: Bibby Factors Northwest Ltd v HFD Ltd [2016] 1 Lloyd’s Rep 517
Subject: Assignment; rebates and early settlement; equitable set-off and estoppel;
factoring.
Summary: Court of Appeal held that where a factor sought payment from customers in
respect of debts which it had bought, the customers were entitled to rely on the right of
equitable set-off in respect of their right to a rebate for every supply, and for debit notes
raised for defective performance. The close connection could not be severed by the
customers’ failure to inform the factor about the rebate as they had been under no
obligation to do so, even though they had traded for 13 years.
Case: Capital for Enterprise Fund & Maven Capital Partners LLP v Bibby Financial Services
Ltd [2015] 6 Costs L.R. 1059
Subject: Conspiracy by unlawful means; costs budgets and interim payments.
Summary: Important case on cost budgeting. High Court held there was no jurisdiction to
amend an approved costs budget after trial; that was a matter for a costs judge. The court
might have jurisdiction to give an indication that it would be appropriate to depart from an
approved costs budget, but if it did so, the jurisdiction should be exercised only in
exceptional circumstances and only where the parties expressly or impliedly agreed that it
was appropriate to do so. Instructed by Shoosmiths.
Case: Capital for Enterprise Fund & Maven Capital Partners LLP v Bibby Financial Services
Ltd [2015] EWHC 2593 (Ch)
Subject: Conspiracy by unlawful means; enterprise loan and share warrants; pre-pack
administration; invoice finance.
Summary: Claim for £2m for losses arising when Bibby put oldco into administration, and
funded oldco and newco. Pelling QC dismissed the claim because any acts of Bibby caused
no loss, as oldco was hopelessly insolvent. Instructed by Shoosmiths.
Case: Kowalishin v Roberts & Tech21 UK Ltd [2015] LTL 19/05/15
Subject: Intention to create legal relations; share purchase; unjust enrichment.
Summary: A claimant who had invested £50,000 in a company was not entitled to a
shareholding because he had paid the money in advance of a binding agreement to that
effect. The parties had not intended to be contractually bound at least until heads of terms
had been agreed. The court also rejected an exceptional alternative claim for “subjective revaluation” of the money transferred, and made an award equal to £50,000 plus compound
interest since the date of payment. Instructed by Matthew Arnold & Baldwin LLP.
Case: ABN Amro Commercial Finance plc v McGinn [2014] 2 Lloyd’s Rep. 333
Subject: Confidential Invoice discounting; guarantees and indemnities; losses under
indemnity.
Summary: Claim for £9m against directors. Court held the directors had signed contracts
of indemnity rather than guarantee, so they could not rely upon defences of their company,
and any alleged failure to collect debts did not give rise to a defence of failure to mitigate
under a contract of indemnity. Instructed by Squire Sanders (UK) LLP.
Case: Capita Trust Ltd v Optical Service (UK) Ltd [2014] EWHC 991 (Ch)
Subject: Loans; accounting, pension and tax records; two-day summary judgment.
Summary: Summary judgment was entered in full against a company that denied owing
unpaid bonus payments to a deceased employee. Rose J. rejected the defence and
unsupported assertions of the officers of the company as so incredible that they could
properly be described as fanciful. Instructed by Matthew Arnold & Baldwin LLP.
Case: Butterfield Bank (UK) Ltd v Philip [2013] EWHC 1305 (Comm)
Subject: Banking and finance; guarantees; transactions at an undervalue.
Summary: Summary judgment was entered in full against a guarantor of a bank facility
where the guarantor had failed to establish that the sale of security by LPA receivers had
been at an undervalue, and any asserted new claims against the bank were precluded
under the terms of the guarantee. Instructed by Judge Sykes Frixou.
Case: Prima Equity Ltd v West Bromwich Commercial Ltd [2013] EWHC 1450
Subject: Banking and finance; capital; default; facility letters.
Summary: Defendant financier was not entitled to make demand for £8.5m, as it had, at the
time of the demand, held excess funds that had been wrongly deducted as capital
repayments from a borrower’s bank account, which meant that no sums were in fact due at
the relevant time. Against Mark Cunnningham QC. Instructed by Shoosmiths.
Case: Valley Grown Salads v Bassini [2013] EWHC 1304 LTL March 21, 2013
Subject: Banking and finance; loan agreements; freezing injunctions; summary judgment.
Summary: Defending application for summary judgment on claim for repayment of various
loans amounting to £4.5m on the grounds that the sums were paid as part of a covert share
sale to circumvent the Stock Market Rules on the takeover of Watford Football Club.
Judgment only given for £950,000, and freezing order reduced from £4.5m to £1m. Against
Nicholas Stewart QC. Instructed by BP Collins.
Case: RBS Invoice Finance Ltd v Dymond & others [2012] LTL February 9, 2012
Subject: Invoice discounting; guarantees and indemnities; sale at an undervalue by
administrators.
Summary: Appeal dismissed on the grounds that the Defence was “thin” and would
probably not succeed, so the Defendant would have permission to defend on condition that
they pay a substantial sum into court. Instructed by Mishcon de Reya.
Case: Uddington Business Ltd v Anthony Browne & John Maxwell [2011] LTL December 9,
2011
Subject: Property investment; commercial fraud and tracing; freezing orders and security
for costs.
Summary: Chancellor held that where there had been persistent flouting of freezing and
proprietary injunctions and other orders, the court had jurisdiction to make an order striking
out a defence, or to order that the defendants should provide security for the claim. The
defendants only served evidence purporting to comply with the orders the day before the
hearing so the court made a stringent unless order and ordered them to pay costs on an
indemnity basis. Instructed by Mishcon de Reya.
Case: Barnett & Henley Estates Ltd v Rose, Jackaman & Bales [2011] LTL September 21,
2011
Subject: Bankruptcy; operation of pre-emption machinery in articles of association on
minority shareholders; validity of appointment as statutory auditor; effect of collusion and
bias on expert determination.
Summary: High Court held that an accountant’s certificate as to the fair value of a
bankrupt’s shares was not binding on the trustee because he was not the statutory auditor,
as required by the company’s articles of association. The Court also found that the
certificate would not have been binding on the grounds that the accountant had colluded
with, and was biased in favour of, the majority shareholders in order intentionally to produce
a certificate with a low value. Instructed by BP Collins LLP.
Case: Anglo-Irish Asset Finance Ltd v Flood & Riddell [2011] EWCA Civ 799
Subject: Banking; guarantees and indemnities; fresh evidence; security for costs.
Summary: Court of Appeal dismissed Defendants’ appeal from the decision of the
Commercial Court (see below). The Court allowed fresh evidence in relation to the new
coalition Irish Government’s policy towards the Irish banking system and the EU/IMF bailout, and upheld the Judge’s decision that it would not be just to make an order for security
in favour of the Defendants because the claim and counterclaim raised the same issues,
and ordering the lender to give security would have the effect of giving the Defendants’
security for the costs of their own counterclaim. Instructed by Mishcon de Reya.
Case: Anglo-Irish Asset Finance Ltd v Flood & Riddell (unreported) March 4, 2011
Subject: Banking; guarantees and indemnities; security for costs.
Summary: Acted as sole counsel for Irish lender in security for costs application. Claim for
£35m on limited guarantees against directors, who brought a counterclaim for £220m and
sought security for costs. The Commercial Court concluded that there was reason to believe
that the lender would be unable to pay the Defendants’ costs if ordered to do so (because of
political and economic uncertainty), but the judge declined to order security on the basis
that the counterclaim raised substantially the same issues as the claim.
Case: Close Invoice Finance Ltd v Korpal [2009] LTL November 2, 2009
Subject: Invoice discounting; guarantees and indemnities.
Summary: Court held that a short-form warranty given by an individual to a discounter was
analogous to a performance bond, that a certificate of conclusive was not contrary to public
policy and bound the surety both as to liability and quantum. Instructed by Hammonds LLP.
Case: Fairfax Gerrard Holdings Ltd v Rickson & Flanagan [December 22, 2008]
Subject: Trade finance; fraudulent misrepresentation; sale by receivers at an undervalue.
Summary: High Court rejected defence by guarantors that a trade financier had sold assets
at an undervalue.
Case: Dashfield & Shepherd v Davidson & Ruddy (2008) BCC 662; [2009] 1 BCLC 220
Subject: Joint venture company articles of association; fiduciary duties; s.459
Summary: Lewison J held that a company’s articles contained a mutually enforceable
obligation to buy and sell the shares of a deceased shareholder, and it was implied that
upon his death, the company was obliged to take reasonable steps to procure that its
accounts for the last completed financial year were audited before the auditors certified the
value of the deceased’s shares. Instructed by Paul Davidson Taylor.
Case: Fairfax Gerrard International Ltd v Capital Bank Plc [2008] 1 Lloyd’s Rep 297
Subject: Trade finance; international sale of goods; conversion.
Summary: Court of Appeal construed a trade finance agreement and trust receipt,
particularly a retention of title clause, to determine whether a company specialising in the
international purchase and sale of machines had express authority to pass title of the
machine in question before going into liquidation. Instructed by BP Collins.
Case: Vaughan v Von Essen Hotels 5 Ltd [2007] EWCA Civ 1349
Subject: Service provision in a share sale agreement.
Summary: Court of Appeal upheld the judge’s decision that the relevant provisions of a
clause in a share sale agreement relating to deemed service were mandatory rather than
directory such that the hotels’ warranty claims under the agreement were not served
timeously. Instructed by Paul Davidson Taylor.
Case: Quest 4 Finance Ltd v Maxfield [2007] 2 CLC 706
Subject: Commercial finance guarantees; fraudulent misrepresentation; non-reliance
clause.
Summary: Court held that documents described as “Warranties” were properly
characterised as guarantees, and that company directors that had been induced by
misrepresentations to execute the Warranties were not estopped by declarations of nonreliance from alleging that they had relied on the misrepresentations and had been induced
by them.
Case: Sinclair Investment Holdings SA v Versailles Trade Finance Ltd [2007] 2 All ER
Comm 993
Subject: Trade finance; fraud; breach of fiduciary duties, tracing.
Summary: High Court considered whether there is a proprietary claim in respect of £29
million profit made by the fraudulent director of Versailles Trade Finance who had
dishonestly assisted in a breach of trust. Instructed by Sinclair.
Case: Fairfax Gerrard International Ltd v Capital Bank Plc [2007] 1 Lloyd’s Rep. 171; [2007]
BPIR 330
Subject: Trade finance; international sale of goods; reservation of title; buyer in possession;
conversion.
Summary: Commercial Court rejected defences based on an agent’s authority to sell,
mercantile agency and sale by a buyer in possession and held that by leasing an asset to
its client, a Bank had converted a trade financier’s interest in a machine.
Case: Vaughan v Von Essen Hotels 5 Ltd [2007] EWCA Civ 1349
Subject: Service provision in a share sale agreement.
Summary: Etherton J held that the relevant provisions of a clause in a share sale
agreement relating to deemed service were mandatory rather than directory such that the
hotels’ warranty claims under the agreement were not served timeously.
Case: Colwill & Martin v Avraamides [2007] BLR 76
Subject: Contracts (Rights of Third Parties) Act 1999.
Summary: The first time the Court of Appeal considered the 1999 Act, holding that a
contract could not be enforced under s.1(1)(b) where the third party was not expressly
identified, and that the use of the word “express”, did not allow a process of construction or
implication. Instructed by Goodman Derrick LLP.
Case: Hussain v Bahadir [2005] All ER (D) 208 (Nov)
Subject: Rectification of a commercial lease.
Summary: High Court found convincing evidence of mutual mistake and ordered that a
lease be rectified.
Case: Venture Finance Plc v Mead & McCarrick [2006] 3 Costs LR 389
Subject: Debt finance; construction of costs provision in a guarantee.
Summary: Court of Appeal considered the proper order to make, where guarantors were
severally liable for costs of enforcement. Instructed by Hammonds.
Case: Re:Time Facilities Maintenance Ltd (In Liquidation) v Potential Finance Ltd [2004]
Ch.D; LTL 28/2/05
Subject: Factoring; s.236 application by liquidator.
Summary: Court held that parties to a factoring agreement had frequently varied the
agreement by a course of conduct, thereby abandoning or waiving a clause requiring
variations to be in writing. Instructed by Paul Davidson Taylor.
Case: Yorkshire Bank Plc & Clydesdale Bank Plc v RDM Asset Finance Ltd [2004] Leeds
Mercantile Court; LTL 16/9/04 (Judge Langan QC)
Subject: Costs award upon failure to mediate.
Summary: High Court reduced the discount to which a successful bank’s costs would
otherwise have been subject because the unsuccessful party had unreasonably refused to
engage in mediation. Instructed by Paul Davidson Taylor.
Case: Fairfax Gerrard Holdings Ltd v Yazdi & Talab [2004] EWHC 2079 QBD; LTL 7/9/04
(Andrew Smith J)
Subject: Trade finance; sheriff’s enforcement of writ of fi fa.
Summary: High Court rejected an interpleader claim as dishonest and based upon
fraudulent evidence. Instructed by BP Collins.
Case: Paul Davidson Taylor v White [2005] PNLR 15
Subject: Professional negligence (solicitors).
Summary: Court of Appeal criticised the distinction drawn in professional negligence cases
between negligently failing to give proper advice and negligently giving incorrect advice,
stating every case of giving incorrect advice necessarily involves failing to give proper
advice.
Case: Murphy Shipping & Commercial Services Ltd v Burt [2004] All ER (D) 287 (Nov)
Subject: Company law; fiduciary duties; freezing order.
Summary: Successfully defended two directors against an application for a worldwide
freezing order.
Case: Yorkshire Bank Plc & Clydesdale Bank Plc v RDM Asset Finance Ltd [2004] Leeds
Mercantile Court 7/4/04 (Judge Langan QC)
Subject: Asset-based lending; sale of goods; buyer in possession; mercantile agency;
conversion.
Summary: Claim by banks against agent who had repossessed various coaches following
termination of lease agreements. Instructed by Paul Davidson Taylor.
Case: Commissioners of the Inland Revenue v Verral [2004] EWCA Civ 3083 (Ch); [2004]
BPIR 456
Subject: Bankruptcy procedure.
Summary: Appeal against bankruptcy order.
Case: Fairfax Gerrard Holdings Ltd v Zargaran & Zargaran & Zargaran London Ltd [2003]
EWHC 3017 QBD 15/12/03 (Keith J)
Subject: Sheriff’s enforcement of writ of fi fa.
Summary: High Court held that interpleader claimant’s claim had been debarred and the
conditions laid down by the judge for the setting aside of the debarring order had not been
complied with and it was not just to grant an extension of time. Instructed by BP Collins.
Case: Bunn & Bunn v Rees & Parker [2002] EWHC QBD 16/4/03 (Nigel Teare QC)
Subject: Specific performance of a share sale agreement.
Summary: High Court upheld claim for specific performance of an agreement for the sale
and purchase of 100% of the shareholding of a company. Instructed by Paul Davidson
Taylor.
Case: Alamo Housing Co-operative Ltd v Meredith [2003] HLR 62
Subject: Construction of a commercial lease.
Summary: Court of Appeal held that a housing association retained a right of possession of
residential property after their own tenancy had been terminated by notice to quit.
Case: Henderson & Ors v Ralph Davis [2001] QBD (Comm) 30/4/01 (Colman J)
Subject: Constitution of a club.
Summary: Court upheld claim for declaration by members of association formed to defend
the claims of Lloyds against Names, who maintained that those members who had entered
into a compromise with Lloyds had impliedly resigned their membership. Instructed by
various Lloyds’ names.
Other recent matters
Representing high-street retailer in claim challenging an invoice discounter’s
administration charge as a penalty (instructed by Eversheds LLP)
Successfully opposed an application for security for costs in the Commercial Court
made against an Irish bank (instructed by Mishcon de Reya)
Obtaining worldwide freezing and proprietary injunctions for the owner of a large
property portfolio against directors of its managing agent, on the grounds of
fraudulent misapplication of client monies in breach of trust (instructed by Mishcon de
Reya)
Acting for an Irish bank on its guarantee claim for £35m and its defence to a £230m
counterclaim arising out of the collapse of a substantial property development
(instructed by Mishcon de Reya)
Advised whether a set-off clause in a factoring agreement was unenforceable by
reason of the anti-deprivation principle (instructed by Charles Russell LLP)
Advised on transactional documents relating to a £400m refinancing package for the
UK dealership of a major car manufacturer
Advising a clearing bank upon the final iteration of its new invoice finance agreement
Advising a bank in a priority dispute with another bank with competing rights to a fund
constituting the proceeds of debts (instructed by Eversheds LLP and Kennedys Law
LLP)
Advising and representing a finance company in administration on matters arising out
of its recovery program on a collection ledger of 137 actions against its clients
(instructed by Hammonds LLP)
Advising an introducing broker whether it owed a duty to disclose to its customer the
fees paid to it by the financier upon a successful introduction (instructed by Charles
Russell LLP)
Advising various American factors upon the structure and terms of their UK
agreements
Advising a creditor in respect of a multi-million pound equitable tracing claim against
one of the UK clearing banks and an international firm of accountants arising out of
the collapse of an English Plc engaged in providing commercial finance
Advising and representing various financiers against administrators or liquidators
who held the proceeds of assigned debts on trust
Acting for two directors in a dispute with their previous logistics company, which
alleged that their conduct in relation to an international network of related companies
was in breach of fiduciary duty, and successfully defending an application for a
worldwide freezing order
Advising a number of factors on the provision of credit insurance and the Financial
Services and Markets Act 2000
Acting for an asset-finance company in an action involving bailment and agency
issues arising out of the repossession of coaches
Acting for and against various factors in relation to claims that their “administration
charge” payable upon a termination event under their agreements constitute a
penalty
Acting for the Sheriff of Greater London and a trade financier in relation to three
interpleader claims concerning assets seized by the Sheriff
Drafting all the finance documents for a trade finance company (including trade
finance, factoring, and inter-factor factoring agreements)
Acting for an asset-finance company in action involving issues of priority of securities
and rectification of the Land Register
Mediation
Simon regularly assists clients during the process of mediation.
Professional Memberships
He is an active member of the Commercial Bar Association and he is a member of the
London Common Law and Commercial Bar Association.