Michael Smith

Call 2008

Michael is a barrister specialising in intellectual property, insolvency and general commercial litigation.

His intellectual property practice comprises copyright, designs, trade marks and trade names, passing off, patents and confidential information.

In his insolvency practice, he acts for trustees in bankruptcy, liquidators, creditors and debtors.

Michael has a special interest in the music industry and in music law. He has acted in disputes between artists and their management on both sides. He is well acquainted with the various IP rights involved in music production and with how they move in the music industry. Michael has acted for and against world renowned artists and other industry players and in doing so he knows the strategies that work. In addition, his cross-discipline expertise leaves him uniquely placed to deal with questions related to insolvency of musical artists, their service companies, and record and publishing companies.

As a former IT infrastructure specialist and keen coder himself, Michael is well placed to assist with disputes about IT and software.  He has first hand experience of the contractual, technical and IP issues that can arise.  His current language of choice is C# and he has worked in the past with many, including Java, VB, VB.NET, VBScript, C++, XML, XSLT and Windows Installer.  Michael is always looking for opportunities to automate or simplify his working practices using technology.  Current projects include a C# WPF application for managing and analysing data about winding up petitions and hearings, an addin for Outlook, and an application for managing and merging data into document templates to create rich documents.

Michael has a reputation as an excellent litigation strategist and tactician. His forensic analysis of documents is meticulous and he has a keen eye for the unusual. He is known for his thorough and well considered advice and his strong commercial focus. He is an effective and persuasive advocate whose cross-examination can turn a trial.

Michael also deals with company law matters, commercial matters and general chancery work.

  • Cases of interest
    • ASR Interiors Ltd -v- AWS Trading Limited [2022] EWHC 372 (IPEC) – Michael appeared for the successful claimant in a registered designs action.  The 3 designs pursued at trial were found valid and infringed by the first defendant.  The Court found that the first defendant had fabricated documents in support of a false case, conduct which amounted to an abuse of process.  As a consequence, the IPEC caps were disapplied and indemnity costs ordered.
    • Swallow -v- Mashreqbank PSC [2021] EWHC 3265 (Ch) – Michael appeared for the respondent to an appeal against the decision of a county court judge not to set aside a statutory demand served on the appellant.  The appeal was successfully resisted.
    • Vescati -v- Adey [2021] – Michael acted for a software company in an action against its former director for breach of duty and copyright infringement among other things.  The matter settled.
    • Rotamead -v- Durston Scaffolding & oths [2020] EWHC 2738 (TCC) – Michael acted for the successful claimant.  The defendants’ defences of duress were rejected following a 5-day trial, heard remotely in August 2020.  Judgment was entered for the claimant along with orders for consequential relief, including an order that the defendants pay the costs on the indemnity basis.
    • Banfico -v- Saini and anr [2020] – Michael acted for the defendants in a case concerning alleged confidential information said to be expressed in software code.  Michael appeared at two hearings for an interim injunction, which was refused on the basis of proportionate undertakings.
    • Response Clothing Ltd -v- Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC) – Michael appeared for the claimant in an action alleging that a major high street retailer infringed copyright in a jacquard fabric.  The action raised issues on the nature and scope of works of artistic craftsmanship.  The Judge held that copyright subsisted, that the claimant owned it and that the defendant had infringed it.  The defendant’s appeal was dismissed after it was not taken up by its Administrators.  A cross-appeal against a decision that the IPEC overall costs cap applied after VAT was added to the total for a party who was not VAT registered ([2020] EWHC 721 (IPEC)) was not pursued as it was disproportionate to maintain it after the defendant’s administration.
    • Ashley Wilde Group Ltd -v- BCPL Ltd [2019] EWHC 3166 (IPEC) – Michael appeared for the claimant in an IPEC trial of a copyright infringement action.
    • Asset -v- Advantage -v- Tehrani [2019] – Michael appeared at trial for the successful claimant mortgagee in an action for possession where the defendants raised issues of duress and undue influence.
    • Naeem -v- Chaudhary [2019] Michael appeared at trial for the successful claimant in an action for possession by a purchaser, where the defendants claimed to have an indefinite, lifelong tenancy and / or a proprietary estoppel.
    • Wave Labs Limited -v- Qiu [2019] – Michael obtained an interim injunction restraining use of confidential information relating to financial software.
    • RE A -v- B [2019] – Michael obtained an interim injunction restricting the use of confidential information.
    • Innovation Events Management Ltd -v- Unity in the Sun Ltd [2019] EWHC 2138 (IPEC) – Michael appeared for the claimant in an IPEC trial of a passing off action.
    • Price -v- Flitcraft [2019] EWHC 1965 (Pat) – Michael appeared at short notice for defendants resisting a summary judgment application.  The Court of Appeal granted permission to appeal on grounds drafted by Michael.  The appeal was successful ([2020] EWCA Civ 850) on the basis of new evidence.  The Court of Appeal criticised the judge below’s approach to the procedural aspects raised by Michael.
    • Paintshield -v- XPEL [2018] EWHC 967 (Ch) – Michael appeared for the claimant in a 5-day trial involving licensing of copyrights and unregistered design rights.  The claimant was partially successful and the defendant’s counterclaim was dismissed.  Based on Michael’s grounds, the claimant was given permission to appeal on aspects where its case at trial were not successful.  The matter settled before the hearing of the appeal.
    • Re 7 Companies 2016 (High Court) – Michael appeared on behalf of 7 corporate respondents to winding up petitions and obtained temporary injunctions to restrain advertisement on purely discretionary grounds (i.e. there was no dispute as to the debt).
    • Helme -v- Maher [2015] EWHC 3151 (IPEC) – Michael appeared for the claimant in a passing off case arising out of an abortive franchising enterprise.
    • Re A Company No 5381 of 2015 (High Court) – Michael obtained an injunction restraining presentation of a winding up petition, and successfully had the petition struck out with costs.
    • Limitless Mobile -v- Singh [2015] EWHC 3114 (QB) – Michael’s client was caught up in a company/ex-employee dispute after his details were wrongfully used on a domain name register without his knowledge. Michael successfully applied to set aside a series of orders made in the absence of his client and without his knowledge, and the claim against him was dismissed.
    • Re A Company No 5656 of 2015 (High Court) – Michael obtained an injunction restraining presentation of a winding up petition, and successfully had the petition struck out with costs.
    • Re A Trade Mark Application (Intellectual Property Office) – Michael appeared before the IPO for the opponent in a contested trade mark application. The opposition was based on the opponent’s earlier mark on the grounds contained in s.5(1), 5(2) and 5(3) Trade Marks Act 1996. The Applicant pleaded non-use and cross-applied for revocation. The matter settled before judgment.
    • Re A Company No 7659 of 2014 (High Court) – Michael obtained an injunction restraining advertisement of a winding up petition, and successfully had the same struck out with costs.
    • Weatherford Global Products Ltd -v- Hydropath Holdings Ltd [2014] EWHC 2725 (TCC) – Michael was led by Michael Booth QC for the defendant and third party in a claim for breach of warranty in relation to products manufactured for the oil industry.
    • Re A Company 2014 (High Court) – Michael obtained a without notice injunction restraining presentation of a winding up petition.
    • Re Softy Touch (Intellectual Property Office) – Michael appeared before the IPO for an applicant seeking invalidation of the trade mark “SOFTY TOUCH”.
    • Dhillon -v- Suman 2013/2014 (Birmingham County Court, HHJ Cooke) – Michael appeared for the Claimant on a 3-day trial of a preliminary issue on the existence of a partnership and on 1-day partnership account. The claimant recovered in excess of his initial claim value and was awarded costs on the indemnity basis.
    • Magical Marking & anr -v- Ware & Kay LLP & oths [2013] – Led by Giles Fernando in a 13-day trial on solicitors’ negligence relating to advice on company law and intellectual property infringement.
    • MSL & Oths -v- Clearwell [2012] EWCA Civ 1440 – Led by Michael Booth QC in an appeal to the Court of Appeal and an application for permission to appeal on grounds which had been refused below.
    • MSL & Oths -v- Clearwell [2012] EWHC 3707 (QB) – Led by Michael Booth QC on a 4-day trial relating to the existence and enforceability of an oral agreement to share the proceeds of a IP licence granted to a third party.
    • Seaton & Oths -v- Seddon & Oths [2012] EWHC 735 (Ch) – Led by John Brisby QC on a 4-day application to strike out a claim against solicitors, which contained an important legal point on the interplay between limitation and mental capacity.
  • Memberships
    • Chancery Bar Association
    • COMBAR
    • Competition Law Association
    • Intellectual Property Bar Association
  • Education

    University of Durham MSci Theoretical Physics (1st class honours)

    GDL & BVC – BPP Law School

  • Publications

    Michael, along with other members of Three Stone, is an author of the 5th Edition of Schaw Miller and Bailey – Personal Insolvency Law and Practice.  The 6th Edition is currently in production.

    Michael also contributes to LexisPSL’s insolvency practice notes and to Westlaw’s Insight Passing Off series.

  • Personal interests

    Outside of chambers Michael enjoys amateur dramatics and musical theatre. His recent roles include Eddie in the Heather Brothers’ “A Slice of Saturday Night”, the General in “Seussical”, Werner Heisenberg in an award-winning production of Michael Frayn’s “Copenhagen” and Frank Lubey in Arthur Miller’s “All My Sons”. He also was a late replacement for the lead part “Man in Chair” in “the Drowsy Chaperone” and the part of Witherspoon in “Arsenic and Old Lace”. His most recent roles were as Sir Henry Angkatell in Agatha Christie’s “The Hollow” and (again as a late replacement) the Vicar in “Goodnight Mr Tom”.

  • Other pertinent information

    Before qualifying as a barrister, Michael spent 8 years as an IT engineer and consultant. He specialised in application integration, software and infrastructure for a variety of City firms and government departments. During that time he undertook the GDL and BVC part-time at BPP.

    He continues to code in his spare time.

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