Mark Harper

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Year of Call: 1993

Mark was educated at Arnold Hill Comprehensive School (Nottingham) and Downing College, Cambridge (MA (Hons) Law).

He is a Hardwicke Scholar of Lincoln's Inn.

Practice Areas

(1)    Banking

Throughout his time at the Bar, Mark has regularly advised and acted on behalf of a number of major banks and finance providers in relation to Banking Litigation to the extent now that he is regarded as one of the leading juniors outside London in this area of work. His practice in this regard encompasses (among other things) all issues relating to security enforcement (including challenges to the validity of the security), security rectification and completion, title defect resolution, restitution (in particular recovery of payments by mistake), fraud, guarantees, bills of exchange, consumer credit and professional negligence in the context of the bank/customer relationship.

(2)     Company

Mark is experienced in providing advice and representation in relation to all aspects of domestic company law with particular emphasis on directors duties, shareholders (agreements, rights and remedies), administration of the company and maintenance and reduction of share capital. Whilst the work Mark does in this area is predominantly contentious he also does provide advice in relation to non-contentious issues of domestic company law. Mark has recently acted (together with Paul Chaisty QC - instructed by Addleshaw Goddard LLP) for one of the former directors of the Hampton Trust Group of Companies in defending a claim brought against him by Hampton for breach of fiduciary duty concerning a number of alleged instances of self-dealing and misappropriation of assets.

(3)     Company Directors' Disqualification

Mark has considerable experience in this area, experience which includes 14 years of acting on behalf of the Official Receiver and the Secretary of State in his capacity as a member of the Treasury Provincial Panel and from being involved as junior counsel in two of the most recent high profile Directors' Disqualification Cases being the proceedings brought against (a) the former directors of World of Leather and Uno (Mark acted as junior counsel to Paul Chaisty QC on behalf of the Secretary of State) and (b) the former directors of the Accident Group (Mark acted as junior counsel to Michael Booth QC on behalf of Michael Watson, the former Finance Director) (see Reported Cases). Mark provides advice and representation in relation to (a) the investigation; (b) the section 16 stage; (c) the substantive proceedings; (d) the compromise of the substantive proceedings; (e) applications for permission pursuant to section 17 CDDA 1986 and (f) liability under and enforcement of disqualification orders or undertakings.

(4)     Dispute Resolution

Mark has developed a leading junior practice in the areas of Chancery and Commercial Litigation, something recognised by Chambers & Partners and the Legal 500. He regularly provides representation and advice on disputes in the Chancery Division, Commercial/Mercantile Court, the Technology and Construction Court and the County Court. His experience in this area includes disputes in relation to:-

(a)     Agency (including disputes in relation to the Commercial Agents Regulations - see Reported Cases) - recent cases include (i) acting for Carcraft in successfully defending a claim brought against it by a party who had been defrauded by a salesman employed by Carcraft; (ii) acting for a client in successfully defending a claim brought against him by a supplier in relation to a contract purportedly made on behalf of the client with the supplier by a former employee of the client; (iii) acting for a client in successfully defending a claim brought against him by a supplier in relation to a series of orders which a person (without authority) had placed with the supplier purportedly on behalf of the client; and (iv) acting on behalf of a firm of accountants in claiming fees due from a major PLC pursuant to a Letter of Retainer in relation to a sale of a business where it is alleged that the Retainer is not binding on the PLC because the Chief Executive who signed the same did not have the authority to bind the PLC to the same.

(b)     Employer/Employee post-termination disputes - recent cases include (i) acting on behalf of a major "Green Initiative" Company (whose business had been "hijacked" by a former employee and in effect transferred over to a new company which the former employee and a competitor had incorporated) in securing the necessary interim and final relief to restore the business to the client; (ii) acting on behalf of a research and development scientist in proceedings brought against him by his former employer in which they allege that a "ground breaking" product he has developed post his employment was developed using confidential information that he had misappropriated from them; (iii) acting on behalf of a salesman and his new employer in proceedings brought against him by his former employer in which it is alleged that a client database has been misappropriated and (iv) acting on behalf of a financial advisor in proceedings (including a Search and Seize Order) brought against him by his former employer in relation to client files and details removed by the advisor from the employer.

(c)     Restraint of Trade - Mark (together with Paul Chaisty QC - instructed by Hill Dickinson LLP) recently suucessfully represented Wayne and Coleen Rooney in their dispute with their former management company (Proactive) in which it was alleged (on behalf of Wayne Rooney) that his 8 year Image Rights Representation Agreement was void and unenforceable as an unreasonable restraint of trade - Proactive v Rooney & others 2010 EWHC 1807 (QBD)

(d)     Sale of Goods - Mark is currently acting on behalf of a Football Club in its dispute (proceeding in the Manchester Mercantile Court) with its former team and replica kit supplier. The case involves (among other things) issues as to the quality of the products supplied with particular regard to the reputation and image that the Football Club is trying to portray.

(e)     Warranty Claims (arising predominantly from the sale(s) of businesses and shares) - Mark has recently finished acting for a purchaser of shares in an organic food supply company in relation to proceedings that it brought against the vendors for breach of warranty in failing to disclose the actual or threatened breakdown of a number of key customer relationships.

(5)     Fraud

The Banking, Company, Dispute Resolution and Partnership aspects of Mark's practice all encompass dealing with particular issues of fraud. Mark does however have experience of providing representation in relation to cases which could be classed as pure "fraud" predominantly arising out of fraudulent insurance claims where the insurance company is seeking to recover monies paid out to parties involved in fictitious/staged accidents. Mark is currently representing an individual who received a £200,000+ settlement payment in relation to an accident (he was knocked off his bicycle by a car) which the insurance company now alleges was staged for the purposes of obtaining monies from the insurance company.

(6)     Insolvency

Mark regularly provides advice and representation in relation to all issues arising out of corporate and personal insolvency with particular emphasis on (a) contentious proceedings in relation to allegations of misfeasance, transactions at an undervalue, preference and transactions to defraud creditors; (b) challenges to the appointments and/or decisions of office holders; (c) income payments orders in the context of personal bankruptcy and (d) suspension of discharge in the context of personal bankruptcy. Mark has recently acted for the Trustee in Bankruptcy of Kerry Katona in connection with an application for an income payments order and an application for the suspension of the discharge of the bankruptcy.

(7)     Partnership

Mark has developed a leading junior practice in the area of partnership law (as recognised by his recommendation in this field in Chambers & Partners). His practice in this area involves advice and representation in relation to all aspects of partnership law and he is a regular "port of call" for professional partnerships in the North West (or individual partners within such partnerships) when advice is needed in connection with partnership matters, in particular exclusion of partners, breakdown in relationships between partners and the protection of partnership assets consequential upon the same.

Mark has recently acted and provided advice in relation to (a) professional negligence proceedings where a fundamental issues arose as to whether or not the proceedings had been properly served on a dissolved partnership which involved a consideration of a potential lacunae in the CPR as to the provisions for such service; (b) the exclusion of a doctor and the exclusion of a solicitor from their respective partnerships because they had been absent due to stress-induced depression which involved advancing claims on behalf of the excluded parties under the Disability Discrimination Legislation both for compensation and as a basis for contending that the notices of exclusion were of no effect as served for an improper purpose; and (c) the seeking of interim relief from the Court in connection with proposed Arbitration Proceedings (following the dissolution of a partnership) where the remaining partners had stopped paying the excluded partners agreed monthly drawings, involving a consideration of whether or not necessary for the preservation of assets within the meaning of s44(3) Arbitration Act 1996.

(8)     Professional Negligence

Mark has considerable experience of providing advice and representation to both Claimants and Insurers in relation to professional negligence claims involving solicitors, accountants, financial advisers, and surveyors.

Mark has recently acted and provided advice in relation to (a) a number of parties bringing proceedings against their former accountants and tax advisers in relation to Tax Avoidance Schemes which they recommended without properly advising their clients as to (i) the risks involved in particular the risk of a successful challenge to the Schemes and (ii) the other options open to them; (b) a number of parties bringing proceedings against their former financial advisers in relation to Property Investment Schemes where the advisers failed to provide full and regular advice as to their investment and failed to disclose the fact that they were beneficially interested in the Properties which were the subject of the Schemes; (c) a company which purchased a commercial property in reliance upon the advice of its solicitor that there were no rights of way affecting the property when in fact (as the company discovered shortly after completion) there were rights of way and the solicitor could not have provided the confirmation that he did; (d) a Bank bringing proceedings against a firm of solicitors for its failure to ensure that the party who was providing the security to the Bank actually had the interest the subject of the proposed security and (e) a company bringing proceedings against its former solicitors in relation to proceedings that the firm advised should be brought not realising that the firm had (on behalf of the company) compromised the proceedings by an agreement entered into some time prior to the issue of proceedings.

(9)     Shareholder Disputes

Mark has considerable experience of providing advice and representation in relation to disputes between shareholders (and shareholders and the company) including derivative proceedings under the Companies Act 2006, unfair prejudice petitions, winding up and enforcement of Shareholder Agreements. Such advice and representation is not limited to any Court Proceedings which prove necessary but also addresses what are often the key issues in any such dispute namely (among other things) the steps/tactics which can be taken to (a) avoid a dispute at the outset; (b) respond effectively to threatened or actual prejudicial conduct; (c) engineer the removal of a minority shareholder; and (d) resolve a dispute outside of Court Proceedings.

(10) Sport

Mark's Dispute Resolution Practice (see above) involves sports related disputes and his experience in this regard is illustrated by his successful representation (with Paul Chaisty QC) of Wayne Rooney in his dispute with his former management company, Proactive (Proactive v Rooney & others 2010 EWHC 1807 (QBD)) and his claim that his Image Rights Representation Agreement with them was unenforceable and void as an unreasonable restraint of trade. The case involved consideration of (among other issues) image rights in relation to professional footballers, the payments properly payable in respect of image rights, whether or not it is appropriate for commission on image rights payments to be at a greater rate than that payable in respect of payments paid under a playing contract; and whether or not the greater length of an image rights representation agreement could be used as a means of avoiding the FA/FIFA limit of 2 years on player representation agreements.

Following on from his involvement in this litigation Mark was and is retained on behalf of Wayne Rooney and a number of other present or former Premier League Football Players in advising and representing them in proceedings against the Financial Advice arm of their Management Companies in relation to the mis-selling of investments in Charlotte Harbour (Florida) and Monte-Resina (Spain). Fundamental to the proceedings are a consideration of wealth management issues in relation to football players at both ends of the Premier League pay-scale from its inception to the present day.

Mark is currently retained and advising a leading multi-national sports nutrition product manufacturer in relation to (a) a claim brought against it by a professional rugby player in which it is alleged that a product contained banned substances the taking of which resulted in a professional ban for the player and (b) a potential claim by a National Rugby Association in relation to similar allegations.

Mark's practice also encompasses providing advice and representation in relation to (a) proceedings before Sports Tribunals; (b) arbitrations;  (c) challenges in the Courts to the disciplinary decisions of Sporting Bodies (including applications by disciplined clubs to be reinstated to competitions or leagues); (d) contractual disputes between players and clubs etc.

Additional Cases

1.       Bolton Wanderers FC v Middlesborough FC - Premier League Arbitration in relation to fees due following transfer of Michael Ricketts and construction of words "live Sky Games" in a transfer contract.

2.       Hemmingborough Cricket Club v Yorkshire & District Senior Cricket League - acting on behalf of the League in opposing an application for an injunction and a claim for damages following the decision by the League to exclude the Club from the competition pursuant to the disciplinary procedures of the League.

3.       Hunslett Warriors Amateur Rugby League Football Club v (1) National Conference League and (2) British Amateur Rugby League - acting on behalf of the Leagues in successfully opposing an application for an injunction by the club to be reinstated in the Leagues following their demotion pursuant to the disciplinary procedures of the Leagues.

4.       A.J. Sullivan v St. Helens RFC - acted on behalf of the player in this contractual dispute with his club over an entitlement to a testimonial bonus.

5.       Denis Betts v Wigan Rugby League Football Club - acted on behalf of the player/coach pre-litigation in a contractual dispute with his club.

6.       Source Lab Ltd v Sheffield Wednesday Football Club - acted on behalf of the football club in a contractual dispute with its kit supplier in which it alleged (among other things) that items of kit supplied were not suitable for the needs and requirements of professional football players.

Reported Cases

1.      Proactive Sports Management Ltd v Rooney & Others [2010] EWHC 1807 (QB) (restraint of trade in the context of an agreement between football player and agent)

2.      Office of Fair Trading v Miller [2009] EWCA (Civ) 34 (committal proceedings in the context of breaches of Stop-Now Orders)

3.      Nigel Fryer Joinery Services Limited v Ian Firth Hardware Limited [2008] EWHC 767 (Ch) (issues of repudiation and compensation entitlement under the Commercial Agents Regulations)

4.      Anglo Overseas Ltd v Revenue and Customs Commissioners [2008] V. & D.R. 71 (liability of innocent guarantor for unpaid excise duty in relation to "slaughtered" consignments)

5.      AG (Manchester) Ltd (formerly Accident Group Ltd) (In Liquidation), Re[2008] EWHC 64 (Ch); (acting for former Finance Director of the Accident Group in relation to Directors Disqualification Proceedings)

6.      Secretary of State for Trade & Industry v Thornbury [2008] BCC 768 (Crown Debts allegation in Directors Disqualification Proceedings)

7.      Forrest & Sons Limited v CGU Insurance Plc [2006] Lloyd's Rep. I.R. 113 (variation of risk, alterations, disclosure in relation to insurance contract)

8.      Customs & Excise Commissioners v Anglo Overseas Ltd [2004] EWHC (Ch) 2198 (disputed winding up petition in relation to unpaid excise duty claimed from innocent guarantor following "slaughtering" of consignments)

9.      Secretary of State for Trade & Industry v Gill & others [2006] BCC 725 (Directors Disqualification Proceedings arising out of insolvency of World of Leather and Uno)

10.  First Quench Retailing Limited v Whitbread Plc [2004] EWHC 366 (Ch) (rectification)

11.  Lavelle v Lavelle [2004] EWCA Civ 223 (presumption of advancement)

12.  Secretary of State for Trade & Industry v Gill & others [2005] BCC 24 (amendments in Directors Disqualification Proceedings)

13.  Russell v Finn [2003] EWCA Civ 399 (right of way)

14.  Mulvaney v Gough [2003] 1 WLR 360 (CA) (easement - enjoyment of garden)

15.  Fortman Holdings Ltd v Modem Holdings Ltd [2001] EWCA Civ 1235 (construction of accelerated payment(s) clause)

16.  Conroy v Kenny [1999] 1 WLR 1340 (money-lending)

17.  Halstead v Manchester City Council [1998] 1 All ER 33 (interest on CPO compensation)

 

Recommendations

Mark Harper is praised as "client-focused" whilst having "a great mind for strategy." Peers admire him as "an impressive opponent who is a pleasure to be up against in court." - Chambers UK 2012

Mark Harper is a "very personable" junior with an excellent reputation in this sector - Chambers UK 2012

"A very competent draftsman and an extremely able advocate" - Legal 500 2011

'An "outstanding junior" who has "a great personal touch with all manner of clients" ' Chambers UK 2011

'The "first-rate" Mark Harper is another leading junior, and he earns praise for his "hard work, fine intellect and down-to-earth approach." He is particularly strong on banking and sports-related disputes.' Chambers UK 2011

'Mark Harper is a market favourite.' Chambers UK 2011

Education

Mark was educated at Arnold Hill Comprehensive School (Nottingham) and Downing College, Cambridge (MA (Hons) Law).

He is a Hardwicke Scholar of Lincoln's Inn