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Rupert Cohen

Call: 2011
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Practice Summary

Rupert has a successful property practice allied with a specialist knowledge of costs law. He was appointed Junior Counsel to the Crown (Attorney General’s C Panel) in 2017 and is an ADR Accredited Mediator.

He is described in the directories as “Able to get to the root of a technical and novel point with ease, precision and clarity.” “He is proactive and strategic in ways that set him apart. When I work with Rupert, I always feel like we’re one step ahead of our opponent.” “very bright and is always a pleasure to work with.” “very knowledgeable and results-oriented.” “Provides clear commercial advice and is excellent to work with.” (Chambers & Partners, 2019). “One of the leading juniors at the Bar in costs.” (Legal 500, 2019). “exceptionally clever and a joy to work with. He’s well ahead of his year of call and his advice is always on time, to the point and concise’”(Chambers & Partners, 2018) and “An exceptional barrister with abilities that far surpass his year of call” (Legal 500, 2017).

Recent cases

  • Acting for the successful appellant before the Court of Appeal in Global Assets Advisory Services Ltd v Grandlane Developments Ltd [2019] EWCA Civ 1764 concerning the interpretation of CPR Part 36 and 44.
  • Acting for the successful objectors to an application to modify/discharge restrictive covenants pursuant to s.84 LPA 1925 before the Upper Tribunal in Willis v Rollins [2019] UKUT 315 (LC).
  • Acting for the successful respondent concerning the scope of a solicitor’s retainer before Stewart J in Blyth v Nelsons Solicitors Ltd [2019] EWHC 2063 (QB).
  • Acting for the successful appellant (led by Nick Bacon QC) in West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 concerning the new test of proportionality.
  • Acting for the Lord Chancellor (the successful applicant) in Somaia, Re [2019] EWHC 1227 (QB) concerning the scope of s.17 Prosecution of Offences Act 1985.
  • Acting for a major high street bank in the FTT (Property Chamber) Land Registration Division in a case concerning allegations of forgery and undue influence.
  • Acting in a 3 day trial before HHJ Petts in Cardiff County Court concerning an allegation of negligent misrepresentation in a Sellers Property Information Form.
  • Successfully defending a claim for a declaration as to the proper construction of a rent charge (expedited appeal to Chancery List in CLCC to be heard in June 2018).
  • Acting for the LAA in a judicial review before Mrs Justice McGowan in R (Ezeugo) v Director of Legal Aid Casework [2018] EWHC 691 (Admin).
  • Advising a major London university on the existence of a prescriptive easement over land intended for substantial redevelopment.
  • Representing the Home Secretary in an application for wasted costs against civil servants before McCloskey J in Awuah v Secretary of State for the Home Department [2017] UKFTT 555 (IAC); [2017] 4 Costs L.R. 615
  • Acting in the seminal case Willow Court Management Co v Alexander [2016] UKUT 290 (LC) [2016] L. & T.R. 34 before the Deputy Chamber President of the Upper Tribunal (Martin Rodger QC) concerning the proper interpretation of Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

Residential Landlord and Tenant

Rupert frequently appears in trials and appeals in County Courts and the First Tier Tribunal (Property Chamber) on residential landlord and tenant issues on a variety of matters including service charge disputes, breaches of covenant, unlawful assignment and lease interpretation.  He is instructed by a wide range of private client firms representing individuals, social housing providers and banks.

Rupert has also appeared in countless possession claims concerning ASTs, assured tenancies, secure tenancies and Rent Act tenancies facing a broad range of issues including tenancy deposit schemes, the service of NSOPs and counterclaims for disrepair.

Recent cases

  • A 5 day trial before HHJ Johns QC concerning a claim for a declaration that consent to alterations had been unreasonably refused.
  • Innumerable possession claims including actions against protesters, squatters, travellers and violent intruders for IPOs.
  • Advising on the proper construction and a potential claim for rectification in respect of a poorly drafted lease.
  • A three day trial before HHJ Petts in Cardiff County Court concerning an allegation of negligent misrepresentation in a Sellers Property Information Form.
  • An appeal before HHJ Hornby at CLCC in a case in which a mortgagor alleged breach of contract after the mortgagee bank sought to withdraw an offer after the mortgagor had exchanged on a new property.
  • An appeal before HHJ Bailey at CLCC in a case in which a mortgagor sought to appeal a possession order for mortgage arrears on the basis that it infringed her human rights. Rupert represented the successful respondent.
  • 2 day trial before Recorder Berkley in CLCC on a claim for a determination of a breach of lease for the purposes of s.168 Commonhold and Leasehold Reform Act 2002.
  • 2 day trial in the FTT, Property Chamber acting for a landlord in respect of a tenant’s application under s27A of the LTA 1985 for a determination of the reasonableness of service charges.
  • Resisting an application for the appointment of a manager pursuant to the Landlord and Tenant Act 1987.
  • Advising on the enforceability/rectification of a clause in a pro-forma lease granted to over 30 tenants which contained defective service charge provisions.

Commercial Landlord and Tenant

Rupert has an established commercial landlord and tenant practice. He has represented and advised both landlord and tenants on a variety of matters including issues under the 1954 Act, dilapidations and forfeiture.

Recent work

  • A 2 day trial before HHJ Dight CBE on whether a tenant held under a lease or licence and, if the former, occupied the premises for the purposes of a business in the context of claim under the 1954 Act.
  • A 3 day trial before HHJ Belcher in which Rupert acted for the defendant resisting a claim for a new tenancy on ground (f) of section 30(1) of the 1954 Act.
  • Advising on whether anticipated works in excess of £2 million to an air conditioning system comprised “improvements” or “repairs” and, consequentially, whether the costs could be recovered by way of service charge.
  • A 2 day trial on the proper construction of a poorly drafted rent review clause in a lease.
  • Resisting a claim for relief from forfeiture following peaceable re-entry where the tenant had a poor payment record and appeared to be on the verge of insolvency.
  • Advising on whether a landlord was derogating from grant in restricting access to the tenant’s demise.
  • Advising a defendant guarantor relying on equitable set off to defend a claim for rent arrears on the basis of disrepair and misrepresentation.
  • Representing a tenant in a dilapidations claim in which the landlord sought £100,000 for breach of covenant to repair and/or yield up the premises in good repair at the end of a tenancy.
  • Drafting a defence in a claim which concerned whether a tenancy at will or a protected periodic tenancy had arisen after the determination of a commercial tenancy excluded from the 1954 Act.
  • Appearing in a two-day trial at Guildford County Court to determine whether a document was sufficient to give the defendants an equitable interest in possession.
  • Drafting a defence to a claim for possession on the basis of an implied periodic tenancy following the determination of a non-1954 Act tenancy of commercial premises.
  • Advising on the application of s.2 Law of Property (Miscellaneous Provisions) Act 1989 to an agreement for lease which failed to comply with the requisite statutory formalities.

Real Property

Rupert is regularly instructed on real property issues on matters ranging from adverse possession to issues regarding registration. Rupert’s recent work is set out below:

  • A 2 day trial in the Upper Tribunal concerning the modification of restrictive covenants pursuant to section 84 LPA 1925.
  • A 2 day trial before HHJ Hand QC on the proper construction of an estate rent charge.
  • A 3 day adverse possession trial in the FTT (Land Registration Division). Issues included whether documents constituted acknowledgements, disputed facts and the sufficiency of acts said to constitute factual possession.
  • Advising a university on whether a right to light existed and, if so, whether the interference was actionable.
  • Advising a client on whether he might adversely possess unregistered land by shooting over it.
  • Advising on whether a restrictive covenant prohibiting the building of more than one house on a plot of land was enforceable.
  • Acting in a 3 day trial concerning the location of a disputed boundary.
  • Acting for a group of residents in an action concerning restrictive covenants. The primary issue was whether a building scheme existed.
  • Advising on the nature of an equitable mortgage and the remedies available to the mortgagee.
  • Drafting a defence in a matter concerning a purported breach of contract of an option agreement.
  • Advising on a boundary dispute in a claim worth £100k + where the claimant was claiming damages for infringement of a ransom strip.
  • Drafting pleadings in a claim for adverse possession of unregistered land adjacent to a cemetery.
  • Appearing before the Land Registration Division of the Property Chamber in a claim in which the applicant sought to be registered as proprietor of land on the basis of adverse possession where he had previously occupied the land as a tenant.
  • Advising on a claim for an indemnity from the Land Registry where the proprietorship register mistakenly stated that the land was held on trust.
  • Advising on the beneficial interests of ex-partners in their former property.
  • Advising in a claim in misrepresentation against vendors where, post-conveyance, the purchasers discovered the adjoining property had acquired a prescriptive right of way over their driveway.

Costs

Rupert regularly appears in High Court appeals from the SCCO and applications in front of all levels of the judiciary on costs matters ranging from Solicitors Act assessments, applications for security for costs, payment on account and indemnity costs to name but a few. He has also advised on a range of costs issues from the application of Part 36 to the assignment of CFAs.

Rupert is a CADR mediator and was also a keynote speaker at the Association of Costs Lawyers Annual Conference in October 2016. His recent cases include:

Notable cases

  • Global Assets v Deinis [2019] EWHC 947 (Comm) – a first instance decision by Mr Justice Teare on the court’s jurisdiction where a Part 36 offer is accepted within the relevant period.
  • Mirchandani v Somaia (Lord Chancellor intervening) (High Court, QBD, The Hon Mrs Justice Jefford) – a preliminary issue hearing before Jefford J on the court’s jurisdiction to order the Lord Chancellor to pay costs pursuant to the Prosecution of Offenders Act 1985.
  • Finnegan v Spiers (t/a Frank Spiers Licensed Conveyancers) [2018] EWHC 3064 (Ch); [2018] 6 Costs L.O. 729 – an appeal before Mr Justice Birss on whether a payment on account can be ordered where a Part 36 offer is accepted within the relevant period.
  • Acting for the LAA in a judicial review before Mrs Justice McGowan in R (Ezeugo) v Director of Legal Aid Casework [2018] EWHC 691 (Admin).
  • Peterborough and Stamford Hospitals NHS Trust v McMenemy [2017] EWCA Civ 1941; [2017] 6 Costs L.R. 973 – an appeal in the Court of Appeal led by Nicholas Bacon QC concerning the reasonableness of taking out after-the-event insurance at the point at which solicitors are first instructed.
  • Khaira v Shergill [2017] EWCA Civ 1687; [2017] 5 Costs L.R. 953 – an appeal in the Court of Appeal led by PJ Kirby QC concerning the commencement of detailed assessment proceedings pursuant to CPR Part 47.
  • Awuah v Secretary of State for the Home Department [2017] UKFTT 555 (IAC); [2017] 4 Costs L.R. 615 – a decision of McCloskey J on the power of tribunals to order wasted costs against representatives other than professional advocates.
  • Willow Court Management Co v Alexander [2016] UKUT 290 (LC) [2016] L. & T.R. 34 – an appeal on the proper interpretation of Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
  • Stone Rowe Brewer LLP v Just Costs Ltd [2015] EWCA Civ 1168; [2016] Ch. 489– an appeal to the Court of Appeal concerning the proper interpretation of the one-fifth rule in the Solicitors Act 1974 s.70(9) and the application of the “special circumstances” provision in s.70(10). Led by PJ Kirby QC.
  • McDaniel & Co v Clarke [2014] EWHC 3826 (QB); [2014] 6 Costs L.R. 963 – an appeal from the SCCO heard by Mr Justice Hickinbottom concerning the reasonableness of costs under the Solicitors Act 1974.

Qualifications

Qualifications 

  • ADR Group Accredited Mediator
  • First class degree (Christ Church, Oxford) – 2009
  • Distinction (GDL) – 2010
  • Very Competent (BPTC) – 2011
  • Academic scholar at Christ Church, Oxford
  • Hardwicke, Denning and Bowen scholarships from Lincoln’s Inn

Professional Associations

  • Property Bar Association
  • Chancery Bar Association
  • ADR Group Accredited Civil & Commercial Mediator
  • CADR Mediator
  • CFLA

Recommendations

“Able to get to the root of a technical and novel point with ease, precision and clarity.” “He is proactive and strategic in ways that set him apart. When I work with Rupert, I always feel like we’re one step ahead of our opponent.” Chambers & Partners, 2019 – Costs Litigation

“He is very bright and is always a pleasure to work with.” “He is very knowledgeable and results-oriented.” “Provides clear commercial advice and is excellent to work with.” Chambers & Partners, 2019 – Real Estate Litigation

“One of the leading juniors at the Bar in costs.” Legal 500, 2019 – Costs

“Rupert is exceptionally clever and a joy to work with. He’s well ahead of his year of call and his advice is always on time, to the point and concise.” Chambers & Partners, 2018 – Costs Litigation

“An exceptional barrister with abilities that far surpass his year of call.” Legal 500, 2017 – Costs

Mediation

Rupert is an up and coming mediator who in the past 3 years has mediated more than 20 disputes. He has a particular specialism in property and costs disputes which reflects his practice as a barrister. The demand for his services is a reflection of: (i) his mediation style which focuses on the importance of momentum in disputes; (ii) his successful practice in both fields as a barrister; and (iii) his seniority which means he can economically mediate “small/medium sized” disputes.

Rupert is a qualified ADR mediator and a panel mediator for Costs Alternative Dispute Resolution (CADR). He has been selected as an inaugural mediator on the Chancery Bar Association’s Pro Bono Mediation Scheme (he is 1 of 15 selected mediators alongside internationally recognised mediators including Stephen Ruttle QC, Colin Manning, Elizabeth Jones QC, and Beverly-Ann Rogers) and appears in Who’s Who Legal: UK Bar 2019 in the category “Mediation – Juniors”.

A list of Rupert’s recent mediations appears below:

  • X v Y (December 2019): The substance of the dispute was a claim by a former employee for sums owed to him during a contract of employment. The dispute itself was complicated by the fact that the former employee’s contract was with a company which had gone into liquidation in respect of which the defendant was previously director. Central to the final settlement was a confidentiality clause. Settlement achieved.
  • X v Y (October 2019): The case concerned a claim of proprietary estoppel made by a sister against her brothers who had inherited property following the death of their mother. The subject property was unregistered and the dispute arose after the sister sought to register her title to the property. Settlement achieved.
  • X v Y (August 2019): The case concerned works which were to be undertaken to a flat owned by a housing accusation but held by a tenant pursuant to a secure tenancy. The flat itself was badly damaged in a fire which forced the tenant to decant to temporary accommodation. Arrangements were subsequently made to refurbish the flat but differences quickly became apparent between the tenant who had a particular image of how she wanted the flat to look (wooden floors / bright coloured kitchen cupboards) and the housing association who had a different view (lino floor / hard wearing kitchen cupboards). Settlement achieved.
  • X v Y (April 2019): The substantive dispute concerned service charge arrears payment of which the tenant had suspended on the basis that the landlord had unlawfully encroached on to his land/was restricting his access to a shared parking area at the rear of the property. The premises itself was a garage to which the tenant, having operated out of the premises for over 20 years, was emotionally attached. The landlord was a recent purchaser of the reversion and considered his rights over the premises and the shared parking area absolute. Settlement achieved.
  • X v Y (March 2019): The dispute concerned rights of access over a garden owned by the basement flat over which the first floor flat had a (form of) recreational easement. The dispute was complicated by the fact that the basement flat owners had young children and were concerned by some of the actions of the first-floor flat owner. Settlement achieved.
  • X v Y (November 2018): This was a case in which a daughter sought a declaration that her mother held the entire beneficial interest in a house in NW8 on trust for her. Her case was based on a common intention constructive trust the central tenet of which was that her mother was only entered as the legal owner at the Land Registry to enable her to obtain a visa. The mother denied the claim on the basis that she provided the purchase monies and paid all the mortgage instalments. Settlement achieved.
  • X v Y (August 2018): The case concerned a boundary dispute. The Claimant claimed that the Defendant when erecting a fence which had blown down in a storm had re-position it in the incorrect position. The Claimant’s case was predicated on the proper construction of the original deed of grant, alternatively, adverse possession. The Defendant defended the claim on the basis that there been a pre-existing boundary agreement delineating the line of the fence. Did not settle.
  • X v Y (May 2018): The Claimant and Defendant were a couple for 4 years. During the currency of their relationship the Claimant claimed she lent the Defendant £20,000 and, following their break up, issued proceedings for the return of that money. The Defendant counterclaim claiming a 50% beneficial interest in a property bought by, and lived in, by the Claimant. Settlement achieved.
  • X v Y (April 2018): The Claimant claimed a 37.5% beneficial interest in a property in South-East London on the basis of a written agreement in which the parties agreed that a loan of £150k which the Claimant had made to the Defendants would translate into a beneficial interest in the property. The Defendants argued that the written agreement was forged and that, in fact, the £150k paid by the Claimant was simply money paid over to discharge a debt owed by the Claimant to the Defendants. Did not settle.
  • X v Y (January 2018): The Claimant sought possession of a property in SE9 on the basis of Grounds 1, 2, 3 and 5 of Schedule 2 of the Housing Act 1985. The Defendant counterclaimed for damages for disrepair based on 4 years’ worth of penetrating damp said to have permeated the entire property. Settlement achieved.

 

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