Introduction

Rupert Higgins is a specialist commercial and property practitioner who deals with all aspects of property and commercial litigation, with a particular focus on professional negligence work. Rupert has particular expertise in commercial dispute resolution, professional and fiduciary liability including directors’ and officers’ duties in a company context, and civil fraud. He acts both against and on behalf of solicitors, surveyors, accountants, costs draftsmen and property professionals, and has developed a strong specialist practice in costs, including alternative funding arrangements, wasted costs and third party costs applications.

He advises clients, insurers and litigation funders, and appears in the High Court, the Court of Appeal, the Senior Courts Costs Office and the Solicitors Disciplinary Tribunal. He has also been instructed in the Isle of Man. He welcomes instructions not only through the traditional channels but also from professionals and lay clients through the Bar’s Licensed Access and Direct Public Access schemes.

Rupert has been commended for his “practical and commercial approach to litigation”, which he combines with a “real attention to detail and a fearless tenacity” when appearing in Court.

Rupert was amongst the first wave of barristers to recognise the importance of mediation as a form of dispute resolution and became an accredited mediator in 2004. Since then he has been involved in all aspects of mediation and was counsel in Frost v Wake Smith & Tofields Solicitors [2013] EWCA Civ 772, the leading Court of Appeal authority on the role of solicitors and the enforceability of settlement agreements reached at mediation. He has also provided early neutral evaluations in the context of protracted mediations.

Rupert lives in rural Northamptonshire where his life away from work revolves around traditional country pursuits, and his two Chesapeake Bay Retrievers.

Qualifications

MA (Cantab)
Mediator (Accredited by ADR Chambers UK June 2004)

Professional Associations

Commercial Bar Association
Professional Negligence Bar Association
Professional Negligence Lawyers Association
Property Bar Association
Public Access Bar Association

Professional Conduct and Liability

A significant part of Rupert’s practice concerns litigation involving professional conduct and liability, especially that of solicitors, conveyancers, surveyors (acting both as valuers and managing agents) and other property practitioners.

He is instructed by leading solicitors on behalf of professional indemnity insurers and Claimants in a number of aspects of negligence, including solicitors’, barristers’, accountants’ and architects’ negligence and disputes over estate agents’ retainers. He also has expertise in directors’ and officers’ duties and breaches of fiduciary duty in a company context.

This aspect of his work has frequently taken him to the High Court and the Court of Appeal, as well as to the Solicitors Disciplinary Tribunal. He has also been instructed in the Isle of Man.

Recent work

W v CW: Acting for defendant valuers in the context of a valuation of a large and highly individual brownfield development site in Yorkshire, involving unusual issues of valuation and complex causation arguments. Claim in excess of £7m.
B v S: Acting for defendant conveyancing solicitors accused by a mortgage lender of failing to obtain good and sufficient security when alerted to the possibility of serious planning breaches committed by the vendor of a large family house in North West London.
Solicitors Regulation Authority v T: Appearing in the SDT for the purposes of a defence and plea in mitigation in respect of a solicitor accused of serious breaches of the Solicitors Accounts Rules.
RPS v BWB: Acting for a major charity against its conveyancing solicitors who had failed, when carrying out the conveyancing of the charity’s property, to ensure that the transfer accurately reflected the terms of the contract for sale, thus placing the charity in breach of contract.
J M Rowe v Pitmans: Acting for the disappointed litigants in BDW Trading Ltd (t/a Barratt North London) v JM Rowe (Investments) Ltd [2011] EWCA Civ 548 in the resulting claim against their conveyancing and litigation solicitors.
W v FDL: Acting for the purchasers of a large garden centre and architectural salvage business in relation to a claim for negligent advice given by their solicitors as to the terms of the sale and purchase agreement.
B v SAC: Acting for the leading certification body for organic products in respect of a claim brought for the negligent certification of an organic food production process.
T v BSP: Acting for defendant solicitors in a claim for the negligent conduct of litigation in failing to comply with an ‘unless’ order resulting settlement on unfavourable terms.
Carmody v Emyr Pierce Solicitors: Acting for the purchaser of a self-build development plot alleging negligence against the conveyancing solicitor in the provision of advice in respect of the development agreement.
Hodgson v Richard Wilson Long Solicitors: Successfully defending (at a 2 day trial) solicitors who were alleged to have negligently permitted the limitation period to expire on several causes of action arising from the negligent construction of a new family residence in Northamptonshire.
Firstconsult Ltd v Hyperzoom Ltd: Acting for defendant accountants in a claim for the negligent promotion of an unlawful tax avoidance scheme, including an allegation that the scheme formed part of a fraudulent scheme to facilitate the purchase of a company using its own money.
Gladman Commercial Properties v Fisher Hargreaves Proctor [2014] P.N.L.R. 11 (Court of Appeal): Successful strike-out of claim in deceit and negligence under Henderson v Henderson principle and because a previous settlement agreement with joint tortfeasors had discharged the tortious cause of action.
Frost v Wake Smith & Tofields Solicitors [2013] EWCA Civ 772 (Court of Appeal): Acting for a solicitor alleged to have failed, negligently, to record an agreement reached at mediation in such a way as to render it legally binding. Successful both at trial and on appeal, when the Court of Appeal considered the extent of a solicitor’s duty to ensure the enforceability of complex compromise agreements involving the transfer of property interests reached in a mediation situation.

Commercial

Rupert has particular expertise in contractual disputes, tortious and fiduciary duties in a commercial, partnership and a company context, and civil fraud. He has also been involved in several partnership disputes involving property developers, solicitors, accountants and estate agents, as well as the enforcement of lease finance agreements and guarantees involving allegations of forgery, fraud and undue influence. He also appears regularly in the Companies Court in relation to unfair prejudice petitions and claim by liquidators under the Insolvency Acts.

Recent work

S v F: Acting for Defendants in a £6m claim for breaches of a loan and management agreement involving serious allegations of forgery and abuse of process through the intimidation of witnesses.
M v C: Acting for a former professional footballer turned sports agent, in the context of a disputed claim for commission due on the transfer of a premier league football player.
GL v SLL: Acting on behalf of insurers in an assigned claim against the director of a property development company for breach of fiduciary duty consisting in the wrongful receipt and retention of monies properly due to the company.
In re English Wines and Spirits Company Ltd: Acting for the majority shareholders in an unfair prejudice petition arising out of allegedly imprudent investment decisions and exclusion from management.
Carmody v Berrell & Maher: Successful 6 day trial in the High Court Cardiff District Registry acting for the purchaser of a self-build development plot, alleging fraud and negligent misrepresentation respect of the purchase and development agreement.
Timmis v Desai: Acting for a solicitor in a dispute with his former partner relating to the use of partnership assets including allegations of breaches of the duty of utmost good faith.
Firstconsult Ltd v Hyperzoom Ltd: Acting for the defendant in a claim involving the promotion of an unlawful tax avoidance scheme as part of a fraudulent scheme to assist a director in the acquisition of a company using the company’s own money.
London & Medway Ltd v Sunley Holdings plc [2013] EWHC 1420 (Ch): Acting in the trial of a preliminary issue in the High Court determining the interpretation of a compromise agreement reached on the dissolution of a profit sharing agreement between property developers in a quasi-partnership.
Foreman v King [2008] EWHC 592 (Ch): A successful 2 day trial in High Court Birmingham District Registry relating to a contested division of partnership assets.
Summit Asset Management Ltd v Coates: Acting for the Claimant in a claim in relation to a £6m fraudulent refinancing operation employing the manufacturing of false invoices. The trial settled on the second day.
City of London Group plc & ors v Lothbury Financial Services Ltd & ors [2012] EWHC 3148 (Ch): Acting over a 5 day trial on behalf of multiple defendants to breach of fiduciary and conspiracy claims. The defendants were former directors and officers of a company involved in a failed pre-pack administration, whose departure led to the company’s business leaving with them.
Petrodel Resources Ltd v Le Breton [2011] EWCA Civ 1605 (Court of Appeal): Successfully defended, at trial, a former executive employee of a large Nigerian oil concern, involving the interpretation of a remuneration agreement and allegations of breach of fiduciary duties.
Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWHC 25 (Ch): Successful strike-out of claim in deceit and negligence under Henderson v Henderson principle and because a previous settlement agreement with joint tortfeasors had discharged the tortious cause of action.
Black Arrow Finance v Orderdaily [2002] EWCA Civ 289 (Court of Appeal): Acting for the Claimant finance company over a 3 day trial in a claim in fraud relating to the financing of non-existent assets.

Land & Real Property

After a specialist property and landlord and tenant pupillage, much of Rupert’s practice remains in the areas of real property. His real property practice encompasses boundary and easement claims, adverse possession, beneficial interests, trusts of land, proprietary estoppel and restrictive covenants, as well as mortgages, LPA Receiverships and charging orders. He also has considerable experience in commercial landlord and tenant work, land options and rights of pre-emption, and has advised a number of local authorities with regard to their agreements with water and sewerage providers.

Recent work

US Mortgage Finance LLC v Dew: Acting for the defendant mortgagor in respect of an attempt by the Claimant American mortgage lender to enforce a default judgment obtained in Florida, including issues of the application of a Florida statute of limitations by the Commercial Court. Appeal to the Court of Appeal pending.
BFC v RPS: Acting for a major charity in connection with a claim for damages for an inadvertent failure to convey riparian sporting rights as part of the conveyance of a country estate, raising novel issues of foreseeability and consequential loss.
F v M: Acting for the Defendant in a claim for the removal of obstructions to an easement obtained by prescription, including issues of proprietary estoppel in an easement context.
H-B v H: Acting for the grantees of a Land Option in respect of equestrian premises, granted pursuant to a Will, including determining how the construction of the underlying Will affected the proper interpretation of the valuation mechanism in the Option.
K v H: Acting in the Upper Tribunal (Lands Chamber) for the beneficiary of a restrictive covenant limiting the intensity of development on neighbouring land in an application for the discharge of the relevant covenant under s.84 of the LPA 1925.
C v M: Acting for the freehold owners of agricultural land subject to a right of pre-emption granted pursuant to a Will, including determination of the proper valuation mechanism in accordance with the construction of the Will.
Crete Investments v White: Acting for the absentee owners of a farm, claiming possession from their managers on the grounds that they were service occupants, including a rarely-considered claim by the managers for security of tenure under the Rent (Agriculture) Act 1976.
Broadbent v Broadbent: Emergency application to the Leeds District Registry for an order for sale of a former matrimonial home.
Re: Property in Parker St W1: Acting for commercial tenants in the construction of a break notice.
Regency Mines Ltd v Margolis: Succeeding at trial in a claim for a declaration that a commercial lease had been inadvertently surrendered by operation of law, when the landlord had carried out works of repair which extended beyond the scope of that which had been authorised by the tenant.
Glasslake Ltd v Riley: Appearing in the Chancery Division to enforce a restrictive covenant limiting the use of neighbouring mixed commercial and residential property in east London, including bringing committal proceedings for breaches of interim undertakings.
Da Rocha-Afodu v Mortgage Express Ltd [2014] EWCA Civ 454 (Court of Appeal): Acting for mortgagee in possession in a claim by a mortgagor for conversion of chattels following disposal of mortgagor’s uncollected possessions. The leading case on the duties of mortgagees in possession as involuntary bailees.
McGahon v Crest Nicholson [2010] EWCA 842 (Court of Appeal): On the question of whether a land contract can be validly rescinded after the right to do so has arisen but the default giving rise to the right has already been cured.
Strategic Property v O’Se [2009] EWHC 3512 (Ch): On the question of whether an intermediary’s damages for a buyer’s failure to complete can include damages arising from the intermediary’s own consequential non-completion of a related head contract in a back-to-back sale.
Ashtenne (AIF) Ltd v O’Neill [2006] EWHC 2884 (Ch): Acting for the Claimant property fund in respect of a claim for trespass by the owner of plant and machinery at factory premises, including a substantial dispute as to the cost of removal.
Banerji v Devi [2005] Ch (Laddie J): Acting for family members in a contested claim under the Trusts of Land and Appointment of Trustees Act 1996 in respect of a multi-million pound property portfolio.