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Rupert Higgins
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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 he is a Justice of the Peace, and where his life away from work revolves around traditional country pursuits, and his two Chesapeake Bay Retrievers.

Commercial Litigation

Rupert has particular expertise in contractual disputes, tortious and fiduciary duties in a commercial, partnership and 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.

Recent work

  • G v K: Acting for the Defendant to a claim for enforcement of a contribution agreement forming part of a company sale agreement, involving consideration of the wrongful use of a power of attorney and joint liability for costs.
  • Stewart v Franey & ors: 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.
  • Mauge v Curtis: 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.
  • 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.
  • 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.
  • 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.

Property Professionals

Rupert’s property expertise makes him the natural choice for claims involving property professionals. His experience in relation to legal professionals is dealt with in a separate tab. He also handles claims against conveyancers, surveyors (acting both as valuers and managing agents), architects and other property practitioners.

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.
  • L v JDP: Acting under Direct Public Access for the Claimant in a claim against an architect for the negligent design of a prestigious ‘Grand Designs’-style water tower conversion.
  • 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.
  • 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.

Financial Professionals, Insolvency Professionals, Directors & Officers

Rupert has experience of handling claims against financial professionals, in particular accountants.

Recent cases

  • 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.
  • 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.
  • 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.
  • E v CBK Acting for the Claimant against an IFA for the negligent recommendation of inappropriate commercial secured funding instead of a residential remortgage.

Commercial Landlord & Tenant

Rupert has considerable experience in commercial landlord and tenant work, land options and rights of pre-emption. 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.

Recent Work:

  • 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.
  • 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.
  • Sackville v Robertson Taylor: Acting for the tenant in a claim to rescue a defective break notice under the principle in Mannai Investments.

Leasehold & Leasehold Management

Rupert handles long lease property disputes including issues such as enfranchisement and forfeiture, and has advised a number of local authorities and housing associations with regard to their agreements with water and sewerage providers.

Recent cases

Lakeside Properties Limited v Gibbs (Court of Appeal): Acting for the Appellant in a second appeal against the refusal to compensate for unjust enrichment where the landlord of a residential long lease forfeited the lease for non-payment of minor sums and sold the property in the teeth of an application for relief from forfeiture.

Real Property & Mortgages

Much of Rupert’s practice is in the arena of real property claims. 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.

Recent Work:

  • US Mortgage Finance LLC v Dew [2017] EWCA Civ 299 (Court of Appeal): Acting for the Appellant mortgagor in respect of an attempt by the Claimant American mortgage lender to enforce a default judgment obtained in Florida, including issues surrounding the application of a Florida statute of limitations by the Commercial Court.
  • 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.
  • Fox v Madrigal Investments Limited: Acting for the Defendant in a 3 day trial 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.
  • Kent v Hennessey [2017] UKUT 243 (LC): 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.
  • Broadbent v Broadbent: Emergency application to the Leeds District Registry for an order for sale of a former matrimonial home.
  • 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.

Costs Litigation

Rupert takes a particular interest in the costs aspects of proceedings and has developed a specialist costs practice, considering and advising on alternative funding arrangements, costs budgeting, Part 36 Offers and wasted costs.

Recent work

  • Greystoke v Candey LLP: Challenging an old style CFA where costs had been incurred by a solicitors acting both on their own account and under the instruction of one of the members of the LLP, who was also a party to the claim.
  • G v K: A dispute over a Contribution Agreement following the sale of a business, involving the recoverability of litigation costs.
  • Lopian Wagner v Ariadne Capital: Dealing with an application to adduce evidence relating to professional negligence in the context of a Solicitors Act assessment including an application for Relief from Sanctions in the Senior Courts Costs Office.
  • Wilson v Wakefield: Acting for the Defendant client to a claim on a solicitor’s bill where the benefit of the bill had been assigned to leading counsel for recovery of his fees of litigation.
  • Nixon v Tysons plc: Acting for insurers of costs lawyers in an application to set aside a Part 36 Agreement purporting to settle the quantum of costs on the grounds of mistake. Establishes the extent to which the Part 36 jurisdiction excludes consideration of common law contractual principles.
  • Davey v Estuary Housing Assoc: Successfully defending an application for wasted costs against solicitors on the grounds that failures on the part of an unsuccessful Claimant’s solicitors had resulted in ATE insurance being avoided. Claim involved consideration of the limitation provision for wasted costs applications (Part 46 PD Para 5) when the act complained of is only revealed after the limitation period has expired.
  • Kain Knight v Rainer Hughes: Acting in a claim for unpaid Costs Draftsman’s fees including allegations of negligence in the drawing of the bill of costs.

Professional Associations

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

Qualifications

  • MA (Cantab)
  • Mediator (Accredited by ADR Chambers UK June 2004)
  • Justice of the Peace
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