PJ Kirby KC

Areas of expertise

• Costs and litigation funding

  Costs and litigation funding

  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 has advised a number of third party funders in relation to their funding agreements, new DBA products, and generally on costs law issues. PJ was instructed on behalf of the Association of Litigation Funders to represent its interests in the Court of Appeal.

  Recent costs decisions:

  • PXT v Atere-Roberts [2024] EWHC 1372 (KB) – PJ appeared on  behalf of the Defendant insurers in a serious brain injury claim involving a child and obtained an order for costs budgeting notwithstanding the fact that such claims would normally be excluded from budgeting pursuant t CPR r.3.12(1).
  • R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28 – PJ acted for funded parties in this leading Supreme Court decision which has caused considerable difficulties for the litigation funding industry the Supreme Court having found that the litigation fundi g agreements in question were damages based agreements. PJ had also appeared in the Competition Appeal Tribunal ([2019] CAT 26) and the Court of Appeal ([2021] EWCA Civ 299).
  • Wilkins v Serco Ltd [2023] Costs LR 1333 –test case – PJ successfully resisted the defendant’s appeal – a claim for false imprisonment against the prison authorities was correctly allocated to the Fast Track notwithstanding the value meant that the small claims track would have been appropriate. The claim was complex and of importance to non-parties.
  • Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387 – a test case in the Court of Appeal heard over 3 days which determined that claims brought through the RTA portal were not “contentious business” until a claim was issued. The Court of Appeal called for urgent legislative attention to be given to the Solicitors Act 1974.
  • Consumers’ Association v Qualcomm Inc [2022] CAT 20 – PJ appeared for the Consumers Association in the Competition Appeal Tribunal in relation to funding matters and in particular the adequacy of the ATE insurance.
  • SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) – The court considered the application of the Solicitors Act 1974 Pt III s.74(3), CPR r.46.9(2) and r.46.9(3) to solicitor and client costs in a low value personal injury claim that was settled before a claim form was issued. It also found that the “amount of the bill” under s.70(9) of the 1974 Act was the amount demanded by the bill of costs.
  • Rowe v Ingenious Media Holdings Plc [2021] EWCA Civ 29 the circumstances in which a defendant seeking security for costs against a third-party litigation funder should be required to provide a cross-undertaking in damages as a condition of ordering security.
  • Hotel Portfolio II v Ruhan [2020] EWHC 233 (Comm) extent to which ATE policy could be relied on in providing security for costs and whether there should be a cross undertaking in damages.
  • Re Ingenious Litigation [2020] EWHC 235 (Ch) large group action where considered security for costs application against funder and what credit should be given for ATE policies.
  • UK Trucks Claim Ltd v Fiat Chrysler Automobiles [2019] CAT 26 represented the Road Haulage Association in the Competition Appeal Tribunal on various costs and funding issues including successfully opposing a contention that all LFAs are DBAs and therefore unenforceable. This point was heard by Court of Appeal in January 2021.
  • Re J (Children) [2019] EWCA Civ 1335 successfully opposed appeal seeking to challenge costs order made in high profile child abduction proceedings.
  • Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) on behalf of PM successfully opposed grant of relief from sanctions in a costs appeal where the court had been misled by the reasons given by a solicitor for making the application two days out of time.
  • Herbert v HH Law Ltd [2019] EWCA Civ 527 – test case affecting thousands of cases – successfully opposed an appeal in relation to the setting of success fees by solicitors and the need for informed consent by the client.
  • 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 KC’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 v 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).
  • Brookes v DC 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 v Duncan [2012] 4 Costs LR 787 – Successfully resisted appeal where issue was whether allegations of professional misconduct could be raised on appeal.
  • Bennett v 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 Customs v Blue 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 and drafting retainer documents including DBAs in relation to various high profile group actions in the Competition Appeal Tribunal and the High Court
  • Advising on a number of retainers including DBAs and discounted CFAs.
  • An increasing number of Solicitors Act disputes.
  • Advising on costs and funding aspects of what is believed to be the largest claim currently being litigated in the Commercial Court.

  Talks and Publications

  PJ is a popular speaker at conferences and seminars. PJ has given presentations to many organisations and firms of solicitors including The Association of Costs Lawyers, White Paper Conferences, Professional Negligence Bar Association, ADR-ODR, Solicitors Disciplinary Tribunal, Motor Accident Solicitors Society, Law Society, Liverpool Law Society and Lexis Nexis.

  PJ is a frequent contributor to publications on costs issues as well as an often quoted commentator across a wide scope of costs issues.  See the Recent Articles tab on his profile for more information.

• Commercial dispute resolution
  • Banking & finance

    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 cases:

    • ​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

    Civil fraud & asset tracing

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

    Recent cases:
    

    • £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

    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 cases:

    • Michael Wilson and Partners Ltd v Emmott [2024] EWVA Civ 86 – in this long running Commercial Court litigation PJ successfully represented the defendant solicitors against an attempt by the claimant to reopen an appeal. The unusual aspect of the case is that the single Court of Appeal justice had accepted that he had probably not read the claimant’s latest skeleton argument when refusing permission to appeal. The underlying fraud claim against solicitors – which PJ successfully had struck out – is the subject of a number of reported decisions.
    • Simwood eSMS Ltd v GovData Ltd [2022] EWHC 3378 (Comm) – an application in the Commercial Court to strike out a claim on the basis that the expert evidence did not support the claim as pleaded.
    • Norsand Consultancy Ltd v Anandanadarajah [2022] EWHC 89 (Ch) – PJ acted for the successful claimant in relation to unpaid commissions and procuring breaches of contract – the unusual aspect was the paucity of written evidence supporting either party’s claim and the result largely turned on PJ’s cross examination of the defendant.
    • 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

    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.
• Professional liability
  • Financial professionals, insolvency professionals, directors & officers

    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 cases:
    

    • 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.
  • Legal professionals

    Legal professionals

    PJ has a wealth of expertise in handling claims involving legal professionals including solicitors and barristers. PJ also has acted for solicitors in relation to disciplinary and investigatory matters.

    Recent cases:

    • Michael Wilson and Partners Ltd v Emmott [2024] EWVA Civ 86 – in this long running litigation PJ successfully represented the defendant solicitors against an attempt by the claimant to reopen an appeal. The unusual aspect of the case is that the single Court of Appeal justice had accepted that he had probably not read the claimant’s latest skeleton argument when refusing permission to appeal.
    • Michael Wilson and Partners Ltd v Emmott [2022] EWHC 2450 (Comm) – PJ appeared for the successful defendant solicitors in obtaining an extended civil restraint order against the claimant firm – the principal of which is also a solicitor.
    • Michael Wilson and Partners Ltd v Emmott [2022] EWHC 1481 (Comm) PJ appeared on behalf of the solicitors in successfully striking out a claim against them that had been pleaded in deceit, fraud and unjust enrichment. This is one of a number of reported decisions in the litigation.
    • ​Defending solicitors in relation to alleged negligent conduct of claims concerning interest rate hedging products.
    • ​Acting for solicitors in wasted costs applications instructed by the insurers.
    • Advising in relation to the professional conduct issues arising out of the conduct of bulk proceedings.
    • Acted in claim against solicitors and counsel in relation to conduct of High Court litigation and funding of same. Settled at mediation.
    • Acted for solicitors in claim against another firm in relation to breaches of undertakings.
    • R. (on the application of Kerman & Co LLP) v Legal Ombudsman [2015] 1 W.L.R. 2081 – judicial review application concerning the treatment of successor practices.
    • Thorne v Lass Salt Garvin [2009] EWHC 100 (QB) – whether the fact that the defendant was a firm of solicitors that had received a copy of the claim form by fax was an exceptional circumstance to dispense with service or to extend time for service.
    • Bank of Scotland v (1) Afzaal Hussain (2) Mona Qutb (2008) EWHC 1669 – the appropriate enquiries to be made by a solicitor of a person in occupation so far as overriding interests are concerned.
    • Manches plc v Carl Freer [2006] EWHC 991 – company director not liable for £500k solicitors’ fees where guarantee not signed in personal capacity – obligations of solicitors to clients when entering into retainer.
• Insurance coverage

  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 cases:

  • 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

  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 cases:

  • 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

  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

  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 cases:

  • 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

  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 cases:

  • 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