Robert Small

CONTACT

Tel: 01420 81275
[email protected]

AREAS OF PRACTICE

• Dispute Resolution

I am a solicitor and Head of Dispute Resolution at Downie & Gadban, with over 20 years’ experience in a wide range of civil and commercial disputes. I am experienced in handling disputes over property (ownership and rights, commercial landlord and tenant, residents’ management companies), contract and trade disputes, shareholder and partnership issues, professional negligence and contested wills and probate. I am committed to understanding my clients’ objectives, explaining legal issues and options to them in plain English, and helping them choose the right strategy to get the results they want.

Areas of Expertise

• PROPERTY OWNERSHIP & PROPERTY RIGHTS
• COMMERCIAL LANDLORD & TENANT
• BUSINESS / SHAREHOLDER & PARTNERSHIP
• CONTRACT & TRADE DISPUTES
• WILLS & INHERITANCE DISPUTES
• RECRUITMENT FEE CLAIMS
• RESIDENTS’ MANAGEMENT COMPANIES
• PROFESSIONAL NEGLIGENCE
• DISPUTED GOODS & SERVICES
• EMPLOYMENT CLAIMS

Robert acts for a wide range of clients dealing with disputes in the County Court, High Court, specialist tribunals such as the Land Registry Property Chamber, and Arbitrations. He also handles mediations and other forms of alternative dispute resolution. Previously a director and Head of Dispute Resolution at a Legal 500 firm, he has extensive experience in a wide range of business and property disputes, as well as in private disputes and contested Wills and inheritance claims, so he is equally at home whether handling potentially sensitive private client issues or advising on the wider commercial implications of a complex dispute. He also has niche expertise in acting for recruitment businesses and residents’ management companies for prestigious residential estates, having built up a considerable client base in those fields over many years.

A committed and robust litigator, Robert has a tactical approach to disputes, but is also pragmatic, never losing sight of his clients’ ultimate objectives. His successful approach to handling disputes is reflected by the fact that most of his instructions come from repeat clients, referrals and recommendations – including from former opponents.

Property

• Represented Defendant in a claim for ownership of £2.5m property based on alleged gift and reliance on having occupied for 20 years and spent hundreds of thousands of pounds improving it. Involved arguments of constructive trust/proprietary estoppel in a 10-day High Court trial. The court found that no representations of gift were made and there was no common intention to that effect.
• Represented developer in a joint venture dispute, defending a claim for payment and a share of development profits of £1.5m+, raising defence of estoppel by convention and counterclaim for rectification. Successfully appealed summary judgment of the High Court, based on the unenforceability of a contract for sale of land, due to s.2 Law of Property (Miscellaneous Provisions) Act 1989 and successful application for relief from sanction: Hogg v Eddery (2015) EWHC 942 (Ch).
• Represented commercial landlord in six-figure dilapidations claim against personal guarantors of former tenant, involving a two-year arbitration, enforcement of award through the County Court and application for Order for Sale of the Defendants’ property.
• Represented commercial landlord in disputing tenant’s exercise of a break clause due to failure to meet conditions, involving interpretation of lease clauses, unqualified break clause conditions, factual dispute and principles of de minimis, resulting in six-figure settlement.
• Represented several residents’ management companies of substantial and prestigious residential estates in a series of claims to prevent short-term/holiday (Airbnb) lettings and multiple occupation use by property owners in breach of leasehold covenants, including High Court proceedings for injunctive relief.
• Represented residents’ management company of a housing estate comprising over 400 houses in dispute with neighbouring apartment property and local authority over existence of a common law dedicated public right of way at a marina development.
• Represented landowner in substantial land dispute, involving boundary disputes, ascertaining the true position of the ‘paper boundary’, alleged boundary agreements and their enforceability pursuant to s.2 Law of Property (Miscellaneous Provisions) Act 1989, promissory estoppel, easements and trespass, involving four-day trial and obtaining permission to appeal from the Court of Appeal.
• Represented individuals defending claim by a relative for a 50% profit share in property development, based on alleged agreement and financial contribution, common intention constructive trust, resulting trust and/or proprietary estoppel. Also defending a claim for a life interest in adjoining property and counterclaiming for possession and damages for trespass. Involved proceedings in the Land Registry Tribunal Property Chamber and County Court.
• Represented pharmacy in dispute over right of way for deliveries across the rear access route to commercial premises, involving arguments of easement by prescription (long use) and estoppel.

Contract

• Represented Defendant company in series of high value claims and trials by trade suppliers who supplied goods through a credit account in the Defendant’s name, set up by a rogue director of subsidiary company without authority. Involved issues of fraud, actual or apparent/ostensible authority and formation of contract.
• Represented construction company in £1.5m claim against quasi-local authority company for repudiatory breach of Term Partnering Contract for the refurbishment of local authority housing stock. Involved applications for pre-action disclosure, security for costs and an eight-day trial in the Technology & Construction Court. Arguments as to formation of contract based on contractual documents and conduct of the parties, effect of the OJEU Contract Award Notice and application of the Public Contracts Regulations 2006.
• Advising a number of recruitment businesses on their contract documents and processes, and acting in hundreds of disputed recruitment fee claims, involving ‘back-door hires’, contract formation, interpretation of terms and conditions, dual agency introductions and ‘effective cause’ cases.
• Represented a number of motor vehicle dealerships, including a supercar franchise for many years, mostly relating to high value disputes involving sale and purchases of vehicles, consumer rights and consumer contracts legislation, alleged defective goods and services, purchases, disputed ownership, business-to-business agreements, vehicle maintenance disputes, sale or return agreements, and related finance and insurance issues.
• Advising insurance intermediary on claims against underwriters for unpaid commissions and counterclaims of £2m+ for alleged breaches of contract.
• Represented liquidator of construction company in claims for £1m+ against national utility company, against a background of allegations of fraud and conspiracy, knowing receipt and dishonest assistance.
• Represented trade supplier of electronics equipment in substantial claim for invoices, involving eight-day trial involving arguments of novation/assignment, apparent/ostensible authority, and defending counterclaim based on alleged defective equipment.
• Defending claim against former company director by mainstream bank under a Personal Guarantee and Indemnity.

Shareholder and Partnership Disputes

• Represented architect in a partnership dispute, involving allegations of misconduct and poor performance, grounds for expulsion and disputes over financial entitlement.
• Represented former shareholder of successful construction agency staffing business, in claim based on repudiatory breach of share sale agreement by purchaser, and defending counterclaim for alleged dereliction of director’s duties and unfair prejudice.
• Represented former partners in claims based on mistake, misrepresentation, breach of director’s duties and breach of partnership fiduciary duties, in relation to the conclusion and sale of a complex family partnership business and trust structure.
• Represented former director and 50% shareholder of liquidated company against former co-director and shareholder, involving fully contested trial, with claim for contribution and indemnity for half of the personal guarantee which had been enforced by the bank.
• Representing former shareholder of electrical products manufacturer and supplier, in claim for unpaid share sale monies and defending counterclaim for breach of director’s duties/negligence for alleged incorrect product design and negligent handling of development and launch of new product.
• Represented director and shareholder in dispute with former director and co-shareholder alleging quasi-partnership, breaches of fiduciary duties, claiming unfair prejudice and deadlock.
• Represented shareholder of successful technology company in claim by former shareholder for return of shares and an account of profits and dividends, involving alleged repudiatory breach of share sale agreement, election and waiver/affirmation, binding variation of contract and promissory estoppel. Also pursuing counterclaim against former shareholder for breach of director’s duties and negligence based on previous conduct in office.
• Represented doctors/former partners in a GP practice in six-figure claims against the remaining partners in acrimonious partnership dispute, involving disputed valuation of partnership assets and shares due to outgoing partners, allegations of financial probity and gross misconduct.

Business Disputes, Intellectual Property, Breach of Confidence

• Represented recruitment company in breach of confidence claim against rogue employee who had taken commercially sensitive client data and information in order to set up competing business. Involving application to High Court for injunction for the return of confidential property and a springboard injunction preventing the former employee from competing with the new business.
• Represented inventor of special effects used on national entertainment tour in claims against companies which had copied and used knowhow/designs, in breach of confidence, for commercial gain.
• Represented independent manufacturer of non-OEM spare parts for generators and marine engines defending claim by international brand based on alleged trademark and copyright infringement and passing off.
• Represented online mortgage brokers in long-running dispute with competitor who had copied branding, web content and style and attempted to divert business, involving claims based on copyright infringement and passing off.
• Represented manufacturer and wholesale supplier in defending claims based on alleged trademark infringement, passing off and breach of the comparative advertising and misleading marketing regulations.
• Advised Irish importer of motor vehicles on Francovich damages claim against the Irish State, based on failure of domestic legislation to comply with EU law regarding tax levied on importers of vehicles for temporary use.
• Represented company in dispute over ownership of domain name very similar to company brand but registered to individual who had no legitimate reason to own the domain and was holding it to ransom.

Professional Negligence

• Represented individual in claim against a client’s former solicitors for negligent advice and handling of hostile boundary dispute causing two lost trials and a substantial costs liability. Involved court proceedings, resulting in six-figure settlement.
• Represented property developer in claim against architects for negligent design of drainage system on property development, causing significant remedial works and disruption to build project.
• Represented individuals in claim against surveyors and their insurer, for failure to notice broken sub-base when carrying out homebuyer survey, leading to substantial remedial works post-sale.

Wills and Probate

• Advised beneficiary under a Will in relation to obtaining Grant of Probate where all executors had died or lost capacity and estate was not administered for six years.
• Represented individual who gave up work to live with and care for, and who was financially dependent on, the deceased, having been promised she could live in the house after his death, but who was ultimately left out of the Will. Assisting with a claim for a share of the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 and claiming an interest in the house based on proprietary estoppel.
• Represented two beneficiaries under a Will in defending claim brought by another beneficiary under the Inheritance (Provision for Family and Dependants) Act 1975, who sought a greater share of the deceased’s estate or a life interest in the deceased’s property, which was the main asset of the estate. Also advising on disputed ownership of neighbouring land potentially belonging to the estate. Applying to court for strike out of the claim for abuse of process, the Claimant having failed to pursue it for five years.
• Advised asset tracing company in complex case, involving failed Power of Attorney and Grant of Probate for Indian national, where substantial UK assets had already been collected in for the estate of the deceased who died in 1950s, and subsequent application to Probate Registry for limited Grant of Probate under s.116 Senior Courts Act 1981. Also involving application by potential creditor for inventory and account and questions over enforceability of creditors’ claims in the estate.
• Represented trustee in bankruptcy in application to High Court for Grant of Probate for the deceased bankrupt’s estate, where all named executors had died or renounced their right to probate, and the deceased bankrupt’s house had to be realised. Also involving claim by occupant of the house to a life interest.

Trusts

• Represented trustees of a family trust, in urgent application to the High Court for an order authorising the trustees to enter into an option agreement over land potentially worth c.£20m, where one beneficiary challenged the trustees’ powers and claimed an entitlement to receive their share of trust land immediately.
• Advised trustees in relation to disputes over beneficiaries’ entitlements under trust and defending alleged breach of trust claims.

Miscellaneous

• Represented Claimants in conjoined road traffic claims, as part of the motor insurance industry’s ‘Credit Hire Initiative’ series of test cases, involving the enforceability of credit agreements under the Consumer Credit Act 1974 and the Consumer Credit (Exempt Agreements) Order 1989. The successful judgment in 2002 prompted resolution of hundreds of related claims which had been put on hold, pending the outcome.
• Represented the Claimant in the Court of Appeal, regarding the enforceability of credit agreements under the Consumer Credit Act 1974 and the Consumer Credit (Exempt Agreements) Order 1989, resulting in successful award of damages. King v Daltray (2003) The Times 15 January (CA).

• College of Law Prize for highest average mark in Legal Practice Course – Guildford College of Law
• Charles Russell Prize for best student in Commercial Dispute Resolution – Guildford College of Law
• GCL Prize for highest mark in Property Law and Practice – Guildford College of Law
• Member of the Hampshire Law Society – Civil Litigation Section