Emil Kirkegaard v Oliver Smith

A vexatious litigant named Emil O. W. Kirkegaard from Denmark who has spent many years harassing me and filed a frivolous lawsuit in 2018 – has been ordered by the High Court of England and Wales to pay me £35,971.67 in legal costs. Predictable for his very unreasonable behaviour and unpleasantness, Kirkegaard refuses to pay this debt and is in contempt of court. I am now taking him to court in his country to enforce judgment and costs order(s). On top of the hefty debt, he is now accruing interest at a per annum rate of 8% (= £2,673) section 17 of the Judgments Act 1838. See below for legal updates.

Page last updated: 18/11/2021

Kirkegaard v Smith

An overview of the frivolous lawsuit Kirkegaard filed and lost can be read here.

Wikipedia’s article on Kirkegaard v Smith can be read here (webpage archive).

Emil Kirkegaard owes £35,972 (+ interest)

Since Kirkegaard is a liar, I will document he is thousands in debt; below is proof from the court and my solicitor including final costs certificate, costs order(s) and two letters:

Combined these total: £35,971.67.

*£107.00 additional interest since the costs certificate took 20-days to seal.

Final costs certificate

Final costs certificate showing Emil Kirkegaard owes me £26,686.43. This order does not include interest he owes (= £2,456.24) and a separate costs order of £6,722.00. He now owes post-judgment interest on top for not paying.

The address (Viborg, DK) on the costs certificate, is publicly posted by Kirkegaard on his OpenPsych website – I am not doxing private information. The costs order(s) are public.

Letter to the High Court noting £2,456.24 (£583.74 + £1872.50) interest has to be added to the final costs certificate. This certificate took 20-days to seal by the court (so there’s an additional £107.00 interest).

Accruing post-judgment interest

Kirkegaard is accruing 8% per annum interest on top of the following costs order(s):

  • £26,686.43 (8% = £2,134.91 or £5.84 each day) since October 12 2021.
  • £6,722.00 (8% = £537.76 or £1.47 each day) since May 22 2020.*
  • Combined these total £2,672.67.

*On this order alone he has accrued to date about £800 post-judgment interest for non-payment.

The total amount I spent on legal costs was £50,279.28. This means 72% is recoverable from Kirkegaard (the £35,971.67 debt he owes). However, after I complained to the legal ombudsman (see below), I was reimbursed £12,653.60 + awarded £750 compensation. This means the amount recoverable to me is: £49,375.60 (98%). A remarkable outcome.

Emil Kirkegaard as the losing party in Kirkegaard v Smith, is not able to recover any of his legal costs. His solicitor was a Grade A fee earner throughout the case (mine was C) so it’s possible his own costs on the case exceed mine although I don’t know the amount.

Emil Kirkegaard won no damages

Kirkegaard won nothing (£0.00) despite claiming damages of £40,000.

Reimbursement of £6,978 (incl. VAT) and £750 compensation

Kirkegaard’s debt should have been £42,750, but he managed to deduct £6,778 since I was billed for an adjourned hearing on May 22 2019. Although Kirkegaard deducted this amount from his debt – I complained to the legal ombudsman to be reimbursed the sum (since the adjourned hearing was not my fault) by the former solicitor firm I had hired up to preliminary judgment. My complaint was successful and I was reimbursed £6,778 (+ £200 VAT) on October 19 2021 (see letter below), for the terrible service of the firm – I was awarded an additional £750 in compensation for distress the adjournment caused.

Reimbursement of £5,474 (incl. VAT) for unless order

We both filed unless orders against each other. The difference is – I was prepared for the hearings (and would have won them), while Kirkegaard failed to attend and so both were cancelled. In other words, he only filed his unless order so I incurred unnecessary legal costs (in contrast, I filed mine to get the frivolous lawsuit struck out). I complained to the legal ombudsman and was reimbursed money I spent on the unless order he filed totalling £5,474 (including VAT), and £201.60 to cover costs I spent on letters or emails.

Based on my complaint to the legal ombudsman I was reimbursed £12,653.60 (+ awarded £750 in compensation), including the costs I unnecessarily spent on the unless order Emil Kirkegaard filed.

On October 19 2021 – I accepted the legal ombudsman’s decision of being reimbursed £12,653.60 (incl. VAT), and £750 in compensation; I was paid this on November 1 2021 by the former solicitor firm I hired in 2018-2019. I’ve thus recovered a sizable amount of my legal costs and I’m now working to recover the rest from Kirkegaard by enforcement.

Emil Kirkegaard committed perjury

Kirkegaard is not only in contempt of court for breaching costs order(s) but lying to the High Court were he lives (he committed perjury by falsely claiming he lives at a different address and seems to have given a dubious description of his employment). I raised this with my solicitor, only to learn Kirkegaard’s own solicitor dropped him; not a surprise, given his bad conduct and dishonesty. In the last few months of litigation – Kirkegaard was pro se and he refused to respond to any emails (sent by my solicitor and the court). Kirkegaard’s alma mater also criticised him for making untrue claims about himself, so he has a history of lying (even his colleagues have described him “extremely dishonest”).

Screenshot of claim form Emil Kirkegaard filled in, falsely claiming he lives at an address in Viborg, DK. The false address is publicly posted on Kirkegaard’s OpenPsych website (screenshot). He may have formerly lived there (it’s now occupied by Victor Kirkegaard, who I presume is Emil’s father) but Emil has been living at a different address (screenshot) in Horsens, DK since at least filing the lawsuit; there is undeniable proof he has lied to the High Court.

Timeline of Kirkegaard v Smith

A timeline of the lawsuit was written by my solicitor post-preliminary judgment:

Kirkegaard v Smith lasted from December 7 2018 to May 21 2020 (costs assessment dragged on longer).

Below are some legal documents:

I blogged what was happing during the lawsuit but removed these posts on October 12 2021 when litigation concerning costs was over (the lawsuit itself lasted from December 7 2018 to May 21 2020 but costs assessment unfortunately dragged on for another year).

Emil Kirkegaard lied in his PoC

From the start, Kirkegaard outright lied in his Particulars of Claim about the meaning of my comments he sued me for. Nonsurprisingly, the preliminary judgment rejected his incorrect pleaded meaning and also criticised him for taking my comment(s) wildly out of context: “It is artificial for the Claimant [Emil Kirkegaard] to take a single sentence out of context” (Kirkegaard v Smith [2019] EWHC 3393 (QB), [63 cf. 35]. The correct meaning of my comments did not cause him “serious harm” (or damage his reputation).

My comments did not cause “serious harm”

My comments Kirkegaard sued me for were not ruled to have caused him serious harm a requirement for defamation (Defamation Act 2013, s1). On May 11 2020, Kirkegaard conceded in writing to my solicitor that my comments weren’t (under statute law) libel:

On May 11 2020, Emil Kirkegaard admitted his claim against me was bound to fail and had no merit since my comments would fail to meet the “serious harm” requirement for libel (Defamation Act 2013, s1).

My comments were upheld as honest opinion

The preliminary judgment decided my comments were expressions of opinion (against Kirkegaard’s incorrect claim they were statements of fact). Kirkegaard failed to produce evidence they were not honestly held. I filed for summary judgment which would have ruled my opinions were honest (Defamation Act 2013, s3). Knowing he would have lost, Kirkegaard signed a notice of discontinuance on May 21 2020 (the hearing was meant to take place on June 2 2020). My comments were therefore upheld as honest opinion, not lies and there was no malicious intent when I made them. The proven liar is Kirkegaard.

Conduct of the parties

Kirkegaard is a vexatious litigant and only filed the frivolous lawsuit to harass me as an adversary (and cause me unnecessary legal costs). After Kirkegaard lost the preliminary hearing, my solicitor wrote to him pointing out he should immediately discontinue since his claim had no merit; instead, he did not sign a notice of discontinuance until another five months so I incurred legal costs that could have been avoided. When it finally came to costs assessment – I highlighted his unreasonable conduct and was awarded ~84% (£19,317.52) by a judge in the provisional assessment since he was penalised. I was also awarded 100% of costs spent on assessment (= £5,437.16, incl. CPR 47.15(5): £1,500 + VAT and a £743 court fee). My solicitor summed up Kirkegaard’s poor conduct during final costs assessment (noting he is ultimately responsible for his misfortune and woes):

Summary of Emil Kirkegaard’s poor conduct: if he had discontinued the lawsuit in December 2019 when he lost the preliminary judgment, he would have only had to pay me £6,722 in legal costs. Instead, as a vexatious litigant he proceeded for five more months solely to cause me unnecessary legal costs.

Emil Kirkegaard is in contempt of court

Kirkegaard had from September 28 2021 to October 11 2021 – to pay my legal costs of £26,686.43 (+ £2,563.24 interest). He refused and ignored emails from my solicitor and the High Court. He is also in contempt of court (by disobedience) for failing to pay and comply with a separate costs order of £6,722.00 since May 22 2020, as well as making false statements (perjury); in fact, he breached the first order in December 2019 which explains why I later filed an unless order (his conduct during the lawsuit was appalling).

01/11/2021: I was reimbursed £12,653.60 (and also awarded £750 in compensation). Kirkegaard’s vexatious strategy of making me incur unnecessary costs backfired on him.

12/10/2021: Kirkegaard is in contempt of court. I created this page for legal updates.

Addendum

 “It’s evil! Don’t touch it!”Pharyngula.