Call: 1991

Rupert Higgins

Direct access

Practice overview

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, and was called a ‘skilled cross-examiner’ by Fraser J in Beattie Passive Norse Ltd v Canham Consulting Ltd [2021] EWHC 1116 (TCC).

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 sits as a both a Deputy District Judge and a Recorder on the Midland Circuit. Life away from work revolves around traditional country pursuits, and his Chesapeake Bay Retrievers.

Areas of expertise

  • Commercial litigation

    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

    • BL v Churchill Retirement Ltd: Claim by a property agent for search commission involving issues arising under the Estate Agents Act 1979.
    • 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.
  • Professional liability
    • Property & construction professionals

      Property & construction professionals

      Rupert’s property expertise makes him the natural choice for claims involving property and construction 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 construction practitioners.

      Recent work

      • SCL v H: Acting for Defendant architects in respect of a £10m claim for the negligent specification of cladding identified following the Grenfell Tower disaster.
      • Leadbeater v JDP Architects: 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.
      • Beattie Passive Norse Ltd v Canham Consulting Ltd [2021] EWHC 1116 (TCC): Structural Engineers’ negligence claim successfully defended at an 8-day trial before Fraser J in the Technology & Construction Court.
      • SCL v H: £8m claim against architects for negligence in respect of defective cladding of a block of student accommodation.
      • SO v PRC: Claim against architects for the negligent conduct of a planning enquiry
      • 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.
      • P v BA: Acting for defendant architects in a claim brought for failure to advise clients of the incidence of a Community Infrastructure Charge.
      • 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

      Financial professionals, insolvency professionals, directors & officers

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

      Recent work

      • 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.
      • 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.
      • 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.
    • Legal professionals

      Legal professionals

      A significant part of Rupert’s practice concerns litigation involving professional conduct and liability, especially that of solicitors.

      He is instructed by leading solicitors on behalf of professional indemnity insurers and Claimants in a number of aspects of negligence, including that of solicitors and barristers.

      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

      • MC v National Education Union: Acting for a teacher who was Claimant in a substantial personal injury claim arising from an assault whilst at school, which was struck out due to the negligence of her Union.
      • AQ v C: Successfully striking out a claim against solicitors which was statute barred as a result of the Claimant having first brought proceedings against the wrong party.
      • 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.
      • A v Solicitors Regulation Authority: Advising on an application by solicitor to be readmitted to the roll after a striking off.
      • 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.
      • 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.
      • 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.
      • 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.
  • Property
    • Commercial landlord & tenant

      Commercial landlord & tenant

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

      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.
      • 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.
    • Leasehold & leasehold management

      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 work

      • Lakeside Properties Limited v Gibbs: 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

      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

      • R v F: Adverse possession claim in respect of a parcel of agricultural land.
      • 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.
      • 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.
      • 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.
  • Costs litigation

    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

    • Grainmarket Properties v Hyphen-Archi: A dispute in the SCCO about whether there was good reason to depart from a £245,000 costs budget where costs incurred exceeded £600,000.
    • Beattie Passive Norse v Canham Consulting (Costs) [2021] EWHC 1414 (TCC): Successful application for indemnity costs after a failed £4m negligence claim.
    • 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.

Judicial appointments

  • Deputy District Judge
  • Recorder (Family)

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)
  • Deputy District Judge (Midlands Circuit)
  • Recorder (Family Court Midlands Circuit)

News

Hardwicke celebrates the appointment of 5 new Recorders

07/10/2020

Hardwicke achieves 6 new judicial appointments

20/05/2020

Unimprovable: compensation under section 1 of the Landlord and Tenant Act 1927

31/03/2020

Articles

Unimprovable: compensation under section 1 of the Landlord and Tenant Act 1927

31/03/2020

Implication, Implication, Implication: When is an Estate Agent entitled to commission?

02/04/2019

“Obvious Contracts”

25/02/2019

Stretching the elastic until it snaps

14/01/2019

Left Holding The Baby

31/07/2018

Past events

#HardwickeBrew – Property – Break Clauses

16/07/2020

Newsletters