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PJ Kirby QC
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“A strong advocate who delivers.”

Legal 500

PJ was formerly a partner in a Holborn firm of solicitors but has subsequently enjoyed a long and successful career at the Bar. He took silk in 2013 – the only costs specialist to do so that year. PJ is Joint Head of Chambers at Hardwicke.

PJ’s practice covers costs litigation, commercial dispute resolution and professional negligence. He is instructed by a wide range of solicitors from City firms to High Street practitioners. As well as cases in England & Wales PJ has appeared in the Cayman Islands Court of Appeal in relation to the legality of CFAs and in the DIFC in Dubai and much of his work has an international dimension.

PJ is recognised as an expert in the field of costs and is often instructed on appeals in relation to problems over retainers, CFAs etc. He is also often instructed to draft bespoke DBAs, CFAs or CCFAs for firms of solicitors.

PJ sits as a Deputy District Judge and is a Bar Council appointed High Court costs assessor. PJ is also an ADR group accredited mediator and is on the Costs ADR (CADR) panel of mediators.

Costs Litigation

PJ is one of the top ranked costs silks. Since taking silk his costs practice has grown considerably. He is often instructed in relation to points of principle on detailed assessments, costs budgeting matters, appeals, wasted costs applications, funding arrangements and professional negligence claims arising out of costs issues.

PJ is retained by one of the largest third party funders for advice in relation to new DBA products, and generally in relation to costs law issues.

Recent costs decisions:

  • Khaira v Shergill[2017] EWCA Civ 1687 – successful second appeal to Court of Appeal on timing of detailed assessment where there has been an interim appeal but no order for immediate assessment.
  • Plevin v Paragon Personal Finance[2017] 1 WLR 1249 – appeal to the Supreme Court from costs officers of the Supreme Court dealt with by original panel – LASPO transitional provisions in relation to the recovery of top up ATE premiums.
  • Savings Advice Ltd v EDF Energy Customers PLC[2017] WL 00219540 SCCO – admissibility of evidence of costs estimates given during a mediation for purposes of assessing ATE premium.
  • Bush v King [2017] QB/2017/0147 – successful appeal concerning reasonableness and recoverability of QC’s fees at trial
  • Excalibur Ventures LLC v Texas Keystone Inc[2016] EWCA Civ 1144 – represented the Association of Litigation Funders as interveners on this appeal in relation to liability of funders for costs.
  • Stone Rowe Brewer Just Costs [2016] Ch 489 
    An appeal on the meaning of “special circumstances” under section 70(10) Solicitors Act 1974. PJ appeared before the costs judge, then on the appeal to Andrews J [2014] 2 Costs L.R. 266 and on the second appeal to the Court of Appeal. Represented the successful appellant.
  • Kagalovsky v Balmore Invest[2015] EWHC 1337 (QB) – PJ successfully defended the Respondent firm of solicitors in relation to a wasted costs application for over £400k.
  • Hussain v Chartis Insurance [2013] EWHC 4740 (QB) – A successful High Court appeal from the costs judge on whether causation of damage was an issue for the costs judge to determine when considering an increase in the success fee of a settled personal injury claim for brain damage arising out of a road traffic accident under CPR 45.18(2)(c).
  • BrookesDC Leisure  – HHJ Cotter – LTL 17.9.13 – CFA named the incorrect Defendant and was not corrected. The paying party successfully argued before the Master that it therefore did not have to pay the costs by reason of the indemnity principle. PJ appeared on the appeal where the court dismissed the appeal but only by deciding that an earlier appeal decision (in which PJ had appeared) was not to be followed. There are therefore now inconsistent decisions on the point.
  • Scott Duncan [2012] 4 Costs LR 787 – Successfully resisted appeal where issue was whether allegations of professional misconduct could be raised on appeal.
  • Bennett Attorney General for the Cayman Islands [2012]
    – Appeared in the Cayman Islands Court of Appeal to successfully argue on behalf of a number of insurers that CFAs and the recovery of any uplift was still governed by the common law in the Cayman Islands and was therefore not possible.
  • Revenue and CustomsBlue Sphere Global [2011] EWHC 90217 (Costs)  – Bill of costs of nearly £2m where HMRC unsuccessfully sought to claim CFAs invalid and alleged misconduct – PJ appeared for the successful receiving party.

Other current matters include:

  • Advising in relation to a number of appeals pending before the Court of Appeal.
  • Advising on a number of retainers including DBAs and discounted CFAs.
  • An increasing number of Solicitors Act disputes.
  • Representing insurers in a major costs arbitration.
  • Representing the solicitors in the largest ever wasted costs application in the Employment Tribunal now on appeal at the Employment Appeal Tribunal.
  • Advising on substantial costs dispute involving third party funding and exercise of a lien in DIFC, Dubai.

Banking & Finance

Disputes involving financial institutions have always formed an important part of PJ’s practice. He has also advised nearly all of the main banks and lenders in relation to claims against solicitors and valuers arising out of conveyancing transactions.

Recent Work:

  • Campbell v Barclays Bank: challenge of security documentation on the basis that the deeds have been invalidly executed or do not comply with section 2 Law of Property (Miscellaneous) Act 1989.
  • Defending solicitors in relation to alleged negligent conduct of claims concerning interest rate hedging products.
  • ​Acted for a number of claimants in very substantial claims against High Street bank in relation to the closure of its agency network. Settled during Commercial Court trial.
  • Acted for bank in successfully defending appeal in relation to formal requirements for execution of securities.

Civil Fraud & Asset Tracing

Increasingly PJ is being instructed on complex commercial fraud matters, often with an international aspect.

Recent Work:

  • £30m+ claim by the liquidator against the company’s auditors for failing to identify a Ponzi type scheme being operated by one of the directors.
  • Claim against CEO of Pakistan company in relation to breaches of fiduciary duty and possible fraud in UK.
  • Acting for solicitor seeking to set aside various proceedings brought fraudulently in her name.
  • Injunction in Dubai DIFC in relation to control of a company running a major restaurant.
  • Injunction in Dubai DIFC in relation to alleged fraud of a party to a JV.
  • Claim against financial advisers for fraudulent misrepresentation in relation to investments.
  • Acted for an optician in relation to alleged dishonest claims for payment from the NHS.
  • Defended claims brought by various investors in relation to the purchase of development land in Bulgaria.
  • Conducting an inquiry into alleged sexual misconduct at a public body and whether had any impact on a commercial tendering process.

Reported Cases:

  • Renoir Global (Private) Ltd v Watteau Holdings (PVT) Ltd [2015] EWHC 2271 (Ch) – freezing order against former CEO and whether need for board resolutions for proceedings
  • Kagalovsky v Balmore Invest Ltd [2015] EWHC 1337 (QB) – whether solicitors could be liable for wasted costs in relation to client’s fraudulent conduct.
  • Roadchef (Employees Benefits Trustees) Ltd v Ingram Hill [2013] EWHC 939 (Ch) – breach of fiduciary duty and measure of damages and whether should be a split trial. Succeeded at trial [2014] EWHC 3109 (Ch)
  • Robinson v Robinson [2004] 1 P. & C.R. DG7 relevance of defendant not giving evidence where fraud allegations in relation to freezing order

Commercial Litigation

PJ is experienced in dealing with a very wide variety of commercial disputes, be they litigated or resolved by way of ADR.

Many of his cases involve financial institutions as well as civil fraud (which are covered elsewhere on his profile).

Recent Work:

  • Acting for well-known designer in dispute over long standing agreement with high street department store.
  • £30m+ claim by the liquidator against the company’s auditors for failing to identify a Ponzi type scheme being operated by one of the directors.
  • Campbell v Barclays Bank: challenge of security documentation on the basis that the deeds have been invalidly executed or do not comply with section 2 Law of Property (Miscellaneous) Act 1989.
  • Roadchef (Employees Benefits Trustees) Ltd v Ingram Hill [2014] EWHC 3109 (Ch) Representing trustees of the UK’s first Employee Share Option Plan against former MD of well-known company for allegedly fraudulently securing for his own benefit a majority shareholding in the company prior to its takeover.
  • Investigation into the tendering process for a high profile government funded body.
  • Claim relating to the conduct and funding of a substantial Commercial Court case.
  • Dispute between two leading firms of solicitors as to who should take the lead in a very large group action.

Employment & Executive Disputes

PJ’s employment practice has covered a wide range of employment disputes including Employment Tribunals but has recently concentrated on High Court disputes of a commercial nature and in particular the enforcement of restrictive covenants and the misuse of confidential information. PJ has appeared on many occasions in the EAT including under the ELAAS scheme.

Relevant Work:

  • Successfully opposed application for injunctive relief in relation to non-compete covenants in multi million pound arbitration between competing firms.
  • Conducted a month-long investigation into allegations of serious sexual misconduct at a public body concluding with lengthy report and recommendations.
  • Acted for owners/purchasers of company against former owner/employed MD in respect of breaches of restrictive covenants in contract of employment and share purchase agreement and breaches of duty of fidelity. Included successful without notice application for a delivery up order in relation to computers (“door-step Piller”). Settled at mediation.
  • Acted for company which in middle of proposed sale received threats from disgruntled ex-employee to disclose allegations of sexual harassment. Following service of proceedings threats withdrawn.
  • Roadchef (Employees Benefits Trustees) Ltd v Ingram Hill [2014] EWHC 3109 (Ch) Representing trustees of the UK’s first Employee Share Option Plan against former MD of well-known company for allegedly fraudulently securing for his own benefit a majority shareholding in the company prior to its takeover.
  • Ekwelem v Excel Passenger Service Ltd [2013] UKEAT/0438/12/GE – successful appeal in relation to unfair dismissal and unlawful deductions
  • Customer Systems plc v Ranson and others [2011] EWHC 3304 (QB) – enforceability of restrictive covenants and extent of duty of fidelity. Award of indemnity costs.
  • Meares v Medway Primary Care Trust [2010] UKEAT/0065/10/JOJ whether an employee’s disclosure alleging bullying and harassment had been made out of personal antagonism towards the employer rather than in good faith, and was not a protected disclosure.
  • Osonnaya v Queen Mary University of London [2010] UKEAT/0225/11/SM whether a tribunal should have adjourned a matter and extent to which orders for costs should be made.

Financial Professionals, Insolvency Professionals, Directors & Officers

PJ has advised nearly all of the main banks and lenders in relation to claims against solicitors and valuers arising out of conveyancing transactions.

He has also been involved in cases concerning a wide range of other professions such as barristers, accountants, bankers and insurance professionals.

Recent Work:

  • Instructed in relation to claim in excess of £30m against auditors and failure to spot fraud. Ongoing.
  • ​Defending solicitors in relation to alleged negligent conduct of claims concerning interest rate hedging products. Ongoing.
  • ​ Acted for a number of claimants in very substantial claims against High Street bank in relation to the closure of its agency network. Settled during Commercial Court trial.
  • Acted for bank in successfully defending appeal in relation to formal requirements for execution of securities.

Insurance Coverage

Much of PJ’s work has an insurance aspect, whether it be acting for or against insured parties. PJ also advises in in relation to coverage issues.

PJ’s costs specialism has meant that he has frequently had to advise in relation to BTE and ATE policies including coverage and avoidance issues.

Recent Work:

  • Appearing for ATE insurer in multi-party costs dispute as to whether one party is on facts estopped from seeking to recover by reference to the total cover provided by the insurer.
  • Advising ATE insurer as to liability for costs under s.51.
  • Acting for solicitors in wasted costs applications instructed by the insurers.

Litigation Insurance

PJ’s costs specialism has meant that he has frequently had to advise in relation to BTE and ATE policies including coverage and avoidance issues.

Recent Work:

  • Appearing for ATE insurer in multi-party costs dispute as to whether one party is on facts estopped from seeking to recover by reference to the total cover provided by the insurer.
  • Advising ATE insurer as to liability for costs under s.51.
  • Acting for a funder where the ATE insurer has to date refused to cover
  • Represented the Association of Litigation Funders in the Excalibur decision where one of the issues was the extent to which a funder could rely on ATE when facing a non-party costs application
  • Court of Appeal hearing in March 2019 to consider whether an ATE premium is a solicitor disbursement

Insurance Funded Disputes

PJ has been instructed by a number of insurers in some of the largest ever claims for wasted costs against solicitors.

PJ has represented a wide range of professions in defending claims.

Professional Indemnity Insurance

PJ has acted in hundreds of professional negligence matters where the defendants are normally insured. PJ has often had to advise on coverage issues in relation to the same including on the SRA minimum terms.

Recent Work:

  • Instructed by the insurers on number of cases on behalf of solicitors facing wasted costs applications
  • Claim against auditors arising out of failure to warn of a ‘Ponzi’ scheme where main concern is level of insurance cover

International

Much of PJ’s work has an international element to it and involves consideration of conflict of laws issues.  PJ has been admitted and has appeared in the Court of Appeal of the Eastern Caribbean (Cayman Islands) and the DIFC in Dubai.

Recent Work:

  • Injunction in Dubai in relation to a shareholder dispute and the management of a top end restaurant
  • Advice concerning a proposed restaurant and nightclub development in Dubai and problems over licence agreements
  • Advice concerning conditional fee agreements in substantial commercial litigation in DIFC
  • Appeal in Cayman Islands concerning the legality of conditional fee agreements
  • Advice in relation to enforceability of guarantees in Trinidad and possible appeal to the Privy Council
  • Recent work in this jurisdiction but involving international elements has been very varied including:
    • Lawyers’ fee arrangements in various jurisdictions
    • Enforcing worldwide restrictive covenants in LLP agreement
    • Fraud claims arising out of a hotel development in Bulgaria

Directory recommendations

PJ is recommended for Costs Litigation in both Chambers UK and Legal 500. He is also recommended for Commercial Dispute Resolution in Chambers UK. The directories refer to the fact that PJ is:

  • “His written work reads very well.” Chambers UK
  • “As an advocate, he is clear in his arguments and very well prepared,” and “always takes a pragmatic and commercial approach to his cases.” Chambers UK
  • “A good, pragmatic and commercial QC.” “He’s an expert in his field who’s responsive and very personable.” Chambers UK
  • A calming influence, who is very confident and presents extremely well; he absolutely wiped the floor with the other side. Thorough and great with clients, and a real team player.” Chambers UK
  • Very thorough and eloquent and has a very client-friendly manner.” Chambers UK
  • “Has a good academic and commercial blend in relation to costs issues.” Legal 500
  • A clear costs specialist, who is knowledgeable, commercial and prepared to go the extra mile.” Legal 500
  • Great with clients, he is a real team player.” Chambers UK
  • Provides excellent strategic and legal advice.” Chambers UK
  • “…he absolutely wiped the floor with the other side.” Chambers UK

Professional associations

  • Employment Law Bar Association
  • Employment Lawyers Association
  • Commercial Bar Association
  • London Common Law and Commercial Bar Association
  • Professional Negligence Bar Association
  • London Court of International Arbitration
  • British Insurance Law Association

Qualifications

  • L.B. (Hons)
  • Former Solicitor
  • Deputy District Judge
  • Barrister Assessor on High Court Cost Appeals
  • ADR Group Accredited Civil & Commercial Mediator
  • Costs ADR (CADR) panel of mediators

CSR

PJ’s annual pop up restaurant in aid of the BillableHour appeal for Save the Children has raised thousands of pounds and attracted widespread press coverage.

In his local community in South London PJ has been involved in youth work for well over 30 years. He has also had instrumental roles in the establishment of a community centre, a community flat and the redevelopment of a local park.

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