Nicholas Broomfield

Nick has significant experience of disputes involving mortgages and the rights of mortgagees. He is regularly instructed by banks, building societies, private lenders, receivers and secured creditors to advise and act in cases at all levels from the County Court and First Tier Property Tribunal to the Supreme Court. Nick has appeared in a number of high profile cases, including Scott v Southern Pacific Mortgages Limited in the Supreme Court, Mortgage Express v Lambert in the Court of Appeal and Landmark Mortgages Ltd v Bamrah on appeal to the High Court, and is a contributor to the 4^th edition of Cousins, The Law of Mortgages.

Examples of issues that have arisen in Nick’s recent cases include:

• claims by mortgagees for possession of land (against mortgagors and third parties) and the recovery of secured and unsecured lending;
• enforceability of legal and equitable charges;
• overriding interests, land registration and title rectification;
• sale-and-rent-back agreements and overreaching;
• trusts of land;
• subrogation, sub-subrogation and restitution;
• mortgage fraud (by borrowers and third parties), forgery, misrepresentation, undue influence (including the implications of Royal Bank of Scotland v Etridge (no 2)), duress and unconscionable bargains;
• the death or insolvency of a mortgagor (including claims by and against the mortgagor’s estate);
• claims against mortgagees pursuant to Financial Services and Markets Act 2000 (including claims for breach of MCOB), the Consumer Credit regime and the Equality Act 2006;
• claims against mortgagees and receivers following the sale of residential, commercial and buy-to-let properties and portfolios;
• claims against mortgagees and receivers arising from the management of properties/portfolios in possession, including resisting applications for interlocutory relief (often at short notice).

Cases

Nick acts for property owners, tenants, banks and building societies, insurers and trustees (onshore and offshore) to advise on all aspects of English property law and claims involving registered land, including:

• overriding interests;
• land registration and priority of interests in land;
• title rectification (including the rectification of leases);
• proprietary estoppel and constructive trusts;
• co-ownership, trusts of land and applications under the Trusts of Land and Appointment of Trustees Act 1996;
• claims involving fraud and equitable wrongs (e.g. forgery, misrepresentation, undue influence, duress and unconscionable bargains);
• landlord and tenant (including forfeiture and claims for possession of land);
• easements and restrictive covenants;
• the construction of leases and leasehold covenants;
• all aspects of the law of mortgages;
• Law of Property Act receiverships.

Cases

Nick is frequently instructed to act on behalf of banks, building societies, financial institutions and finance houses in claims arising from secured lending (see Nick’s CV for mortgage work), contractual disputes (including claims under guarantees), financial services (including claims for breach of MCOBs) and consumer credit agreements.

Nick advises personal representatives, beneficiaries, solicitors and insurers on issues arising from the administration of estates, including:

• the interpretation and rectification of wills and testamentary documents;
• the removal and appointment of executors;
• statutory wills;
• gifts and donatio mortis causa;
• claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975;
• claims against third parties (including attorneys and deputies) for actions taken, and gifts given, during the lifetime of the deceased;
• claims by and against trustees and personal representatives;
• other issues arising in the administration of estates.

The largest part of Nick’s professional liability practice comprises claims against lawyers and barristers. He is regularly instructed in claims against solicitors and barristers arising from both contentions and non-contentious work. By way of example, Nick has been instructed in claims arising from:

• conveyancing and property transactions (including claims by lenders and matters involving mortgage fraud, title defects/rectification and land registration, sale-and-rent-back agreements, covenants and easements);
• probate and the administration of estates (including claims against trustees and executors for dissipation of assets and devastavit, lost 1975 Act claims and the tracing of assets);
• non-contentious work and drafting (including the drafting of leases, wills, trust deeds, options, company documents and commercial agreements);
• breaches of trust (including claims by lenders and private clients following the dissipation of client funds);
• breaches of solicitor’s undertakings;
• matrimonial and family disputes;
• lost litigation (including lost civil and criminal litigation) and lost opportunity claims (e.g. loss of business opportunities and failure to renew business leases);
• under settlement of claims;
• fees claims.

Nick has experience of acting for and against family, professional and commercial trustees (both onshore and offshore), often in claims by financial institutions against their solicitors, recovery actions and claims involving issues of real property. By way of example, Nick has been instructed:

• in claims for breach of trust by financial institutions and borrowers against solicitors following the dissipation of mortgage/trust monies;
• to act in claims involving constructive and resulting trusts and claims against constructive trustees;
• claims by trustees to recover trust assets/monies paid away in breach of trust;
• to advise Channel Island trustees on questions of fraud, title rectification and land registration;
• with David Halpern QC in a dispute with Channel Island trustees over the management of significant trust assets in the UK;
• claims by beneficiaries against their trustees for breach of trust;
• claims arising from the administration of estates;

Nick has experience of acting for claimants, defendants and insurers in claims against valuers and surveyors arising from the valuation of residential and commercial property (including property portfolios), often in mortgage-related actions. He has acted in claims ranging from high value actions by lenders against their professional advisers following the valuation of real property and development land to claims by disappointed homeowners following the purchase of their home.

Nick is regularly instructed in claims against construction professionals (including architects and project managers), often in the context of claims by freeholders and leaseholders. He has been instructed in cases ranging from high value multi-party disputes caused by construction/design defects in well-known London commercial premises to claims by dissatisfied homeowners against their builders and architects following work at their private houses.

Nick is often instructed in engineering disputes and has acted in claims in the UK and the Channel Islands on such diverse subjects as steam locomotives and domestic boilers.

Examples of Nick’s recent cases include:

• several disputes between leaseholders of London residential blocks and the freeholder, developer, sub-contractors and building insures caused by defective design and/or workmanship and/or inherent defects in the block;
• claims by the freehold owner of commercial premises against builders and sub-contractors arising from defective design and/or workmanship which had resulted in potential liability to the tenant;
• a claim against specialist engineers arising from the inspection and subsequent restoration of a steam locomotive;
• a dispute between an architect and a homeowner caused by the design and construction of a basement under a residential property;
• claims by homeowners against architects, main contractors, sub-contractors and surveyors arising from damage caused by rising damp, dry rot and defective works;
• claims against specialist contractors, architects and project managers arising from defective works carried out at investment and commercial premises.
• claims against specialist engineers following damage to property caused by the defective installation of domestic boilers.

Nick has acted in claims against accountants, auditors, fund managers and IFAs, both in the UK and offshore. He has been in involved in cases ranging from long-running claims against accountants in the Chancery Division of the High Court to claims by companies and individuals against their personal tax advisers.

Examples of Nick’s recent cases include:

• acting for successful accountants (led by Nicole Sandells QC) in Scriven v Scriven [2015] EWHC 1690 (Ch);
• advising liquidators (with Nicole Sandells QC) in a claim against auditors in the Caribbean following the loss of significant funds by investors;
• advising liquidators in a potential claim against fund managers in the Caribbean following the loss of significant funds by investors;
• acting in a claim against an accountant arising from negligent tax advice;
• advising on a claim against auditors arising from the negligent valuation of a departing shareholder’s shares;
• advising on an issue of quantum in a referral to FOS.

Cases

Nick has significant experience of acting in claims against agents (including commercial agents and estate agents), receivers (including, notably, Law of Property Act receivers and the legal questions surrounding the identity of their principal), brokers (including mortgage and insurance brokers) and management companies. By way of example, Nick is currently instructed (led by Clare Dixon) in a significant claim against insurance brokers and several cases in which allegations are made against LPA Receivers for breach of duty.