P J Kirby

Call:1989

Introduction and Contact details

Peter Kirby or PJ as he prefers to be known has a broad commercial practice. PJ was formerly a partner in a firm of Holborn solicitors. He sits in the London county courts as a Deputy District Judge and is an appointed Bar Council assessor on High Court costs appeals. Outside of work PJ’s main interests are his family, Chelsea and church and community matters although the order of importance has been known to vary!

PJ is recommended as a leading junior in The Legal 500.

Tel:   0207 691 0044 ddi

Fax:   020 7691 1234

Email: pj.kirby@hardwicke.co.uk

COMMERCIAL

PJ’s commercial practice covers a wide range of commercial disputes but in particular banking and finance, civil fraud, employment and professional negligence.

Banking, Finance & Credit

PJ is regularly instructed to act on behalf of many of the largest banks and lenders in relation to loan, mortgage and guarantee disputes. He has particularly extensive experience in relation to mortgages and other agreements that are challenged on the grounds of undue influence, fraud, forgery or capacity.

PJ also acts in general banking matters concerning cheques and other financial instruments.
PJ has obtained freezing orders over accounts into which banks have mistakenly made payments.
In an overlap with his employment practice PJ has been involved in defending many alleged negligent reference cases on behalf of financial institutions and insurers.

PJ has spoken on a number of occasions to meetings of the Institute of Credit Management.

Recent work

Amongst the banking and finance matters that PJ is currently working on are:

• Acting on behalf of a bank in the Commercial Court which is defending a multi-million pound fraud and conspiracy claim arising out of the alleged misuse of confidential information
• A claim against a clearing bank which considers the availability to a processing bank of section 4 Cheques Act 1957 defence where the collecting bank is foreign.
• Various claims on behalf of lenders where the validity of the charge is questioned – such claims include undue influence, capacity, forgery and fraud and considerations of subrogation, unjust enrichment, equitable charges  and overreaching and the impact of the registration of title.
• Advising a number of guarantors on the construction of their guarantees where the description of the facilities have changed over time.
• Acting on behalf of lenders against solicitors and surveyors in relation to the negligent conduct of loan transactions.

Cases

Bank of Scotland v Hussein [2008] EWHC 1669 – the appropriate enquiries to be made by a solicitor for a proposed mortgagee of a person in occupation so far as overriding interests are concerned.

Manches plc v Carl Freer [2006] EWHC 991 – capacity in which guarantee signed - company director not liable for £500k solicitors’ fees where guarantee not signed in personal capacity.

Qutb v Hussain and The Governor and Company of the Bank of Scotland [2005] EWHC 157 (Ch) – capacity of mortgagor and effect on Bank.

Mahtani and Sterling Bureau v Billington [2003] EWHC 3127 – liability under Zambian loan agreements and what constitutes an acknowledgement of a debt.

Robinson v Robinson LTL 16.10.2003 – liability between family members for fraudulently obtained mortgages.

Legal & General Assurance Co Ltd v Kirk [2002] IRLR 124  – case concerning references given in the financial services industry.

Birmingham Midshires v Sabherwal (2000) 80 P&CR 256 – overreaching of overriding interests on a re-mortgage where undue influence.

NHL v Giffen Couch & Archer [1998] 1 WLR 207 (CA) duties of solicitor to lender client.

UCB Home Loans v Roger North [1995] EGCS 149 - the appropriate margin of error in claims by lender against valuer.

Civil Fraud

Increasingly PJ is being instructed on complex commercial fraud matters as well as dealing with fraud allegations in his banking and finance work.

Recent work

Current or very recent civil fraud work includes the following matters:

• A claim in relation to many tons of frozen fish fraudulently obtained from Russian based trawler companies – appropriately involved freezing orders.
• Acting on behalf of a bank in the Commercial Court which is defending a multi-million pound fraud and conspiracy claim arising out of the alleged misuse of confidential information
• A claim relating to the alleged dishonest misappropriation of large quantities of designer lingerie by the UK importer/distributor
• Alleged secret profits obtained by the managing agent of large commercial properties in the City
• Forged and fraudulently obtained charges over property

Cases

Qutb v Hussain and The Governor and Company of the Bank of Scotland [2005] EWHC 157 (Ch) – capacity of mortgagor and effect on Bank where property obtained fraudulently.

Robinson v Robinson LTL 16.10.2003 – liability between family members for fraudulently obtained mortgages.

Employment

PJ  has extensive experience in ETs and the EAT as well as the County Court and High Court (especially in relation to restrictive covenants, which is a particular interest). Although the majority of PJ’s employment practice now involves higher paid executives and directors he continues to act in Tribunal cases involving unfair dismissal and discrimination in its various forms.

PJ also carries out non-contentious employment work including the drafting of employment contracts, employee handbooks and recruitment agency contracts.

Recent or current work

• PJ is awaiting the remedies decision in an unfair dismissal and sex and race discrimination case in the Employment Tribunal which lasted 42 days and which has already been to the EAT twice with a number of pending appeals (by the other side!)
• PJ is retained by a large international US based firm of lawyers to advise on its own employment issues.
• In a recent case PJ admitted unfair dismissal on behalf of his client but was able to persuade the tribunal not to award any compensation to the Claimant as she had forged a document. The Claimant ended up paying substantial costs.
• A number of claims against directors involving alleged breaches of fiduciary duty.
• PJ has done a number of employment matters on a public access basis.

Reported cases include:

Cases

Burmis  v Aylesford School and others  (2008) LTL 21/10/2008 -  delay of one year between the end of an employment tribunal hearing and the issue of its judgment was not sufficient to overturn the judgment, and delay was not a free-standing ground of appeal.

Legal & General Assurance Co Ltd v Kirk [2002] IRLR 124  negligent reference case - claim based on what employee says employer would inevitably have said in a reference struck out.

Seminars and writing

PJ is an experienced speaker at seminars on employment issues including the 2009 Bristol Law Society annual conference and has also written several case comments for an HR publication and articles on discrimination for New Law Journal and Legal Week.

Partnership

PJ has been involved in advising in relation to a number of partnership disputes and other issues particularly involving solicitors.

Recent or current work

• Advising in relation to age discrimination and the provision of an LLP agreement for retirement.
• Drafting LLP agreement for firm of accountants.
• Assignment of solicitor’s retainers following merger of firms.

Professional Negligence

For many years professional negligence work has formed a very major part of PJ’s practice. He 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, insurance professionals and architects.
PJ also has acted for solicitors, surveyors and accountants and other professionals in relation to disciplinary and investigatory matters.

Recent or current work

• Claims against solicitors and barristers relating to the negligent conduct of litigation
• Claims against solicitors relating to conveyancing transactions on behalf of lenders
• A multi-million pound claim against a bank for fraud and other breaches of duty (acting for the bank)
• A claim against managing agents in relation to their management of a number of substantial properties in London
• A claim against managing agents for breach of trust
• Claims for the recovery of costs as damages in defective title cases
• A substantial claim against insurance brokers re absence of cover
• A claim against one of the biggest unions in relation to advice given in relation to TUPE transfers and the effect on redundancy provisions

Cases

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.

UCB Home Loans v Roger North [1995] EGCS 149 - the appropriate margin of error in claims against surveyors.

NHL v Giffen Couch & Archer [1998] 1 WLR 207 (CA) duties of solicitor to lender client. 

Seminars and writing

PJ has provided professional negligence update seminars for a number of national firms and has contributed regularly to programmes on Legal Network Television and has featured in webinar broadcasts. He has also lectured frequently for Central Law Training.

Costs

As an extension of his work involving solicitors and benefiting from his experience as a former solicitor PJ has an additional niche practice concerning solicitors’ costs and has conducted costs cases at all levels including the House of Lords.

PJ has been involved in devising a suite of documents to assist solicitors overcoming problems experienced with their CFAs following the decisions in Myatt and Garrett.
PJ sits as a Deputy District Judge and is also one of the Bar Council’s assessors for the purposes of High Court costs appeals.

Current and recent costs cases

• Currently PJ is advising a provider of medical reports owed in excess of £1m following the acquisition of a large PI practice by a firm of solicitors.
• PJ has just successfully concluded an appeal where the Law Society intervened and which involved the recovery of costs by suspended solicitors.
• Appeal pending in relation to enforceability of CCFA where a firm of solicitors merges with another firm.
• Retrospective CFAs.
• Acting for the Law Society in relation to the indemnity principle on CCFAs.

Cases

Manches plc v Carl Freer [2006] EWHC 991 – capacity in which guarantee signed - company director not liable for £500k solicitors’ fees where guarantee not signed in personal capacity.

Kitchen v Burwell Reed & Kinghorn Ltd [2005] EWHC 1771 – assessor in case considering CCFAs and in the indemnity principle.

Griffiths v Commissioner of Police of the Metropolis [2003] EWCA Civ 313 – represented the Commissioner in relation to the jurisdiction of trial judge to make order for costs re interim matters.

Inline Logistics Ltd v UCI Logistics Ltd, The Times 2 May 2002 - costs liability insurance premium pre-CPR.
 

INSURANCE

PJ’s insurance practice overlaps with many other areas of his commercial practice

All Risks

As a commercial litigator PJ has experience of many types of policy including all risks policies and has advised insurers in relation to alleged misrepresentations made in proposal forms for such policies..
A recent trial in relation to a £2m life policy covered misrepresentation, dishonesty and the links between cocaine use and heart attacks.

BTE and ATE

PJ’s expertise in relation to the law of costs has involved extensive consideration of BTE and ATE policies often relied upon in relation to CFAs and CCFAs.

Professional Indemnity

As an expert in the law of professional negligence PJ has on many occasions had to consider the cover available to the professional. PJ has had to advise on coverage issues both on behalf of insurers and the insured. As the majority of PJ’s professional negligence work involves solicitors he has had to be familiar with the minimum terms.

PUBLIC LAW

PJ’s public law practice overlaps with aspects of his commercial practise, in particular professional negligence and employment work.

Professional Discipline and Regulation

PJ has advised solicitors, accountants and surveyors in relation to threatened or actual disciplinary proceedings before disciplinary tribunals.
In relation to solicitors PJ has on a number of occasions been brought in at an early stage to assist in investigations by the Law Society/SRA.

One of PJ’s advise that was provided to the Law Society on behalf of a firm of solicitors the subject of an investigation had the effect of leading to changes in the Law Society’s rules and guidance generally.