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 – he lost – was ordered by the High Court of Justice (QBD) in 2021 to pay my legal costs (£35,971.67). Predictable for his unpleasant character and unreasonableness, 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 two costs order(s). On top of the hefty debt, he is accruing interest at a per annum rate of 8% (= £2,673) under §17 of the Judgments Act 1838. See below for legal updates.

Page last updated: 20/01/2022

18/12/2021: A fundraiser (on GoFundMe) has been created for donations towards my solicitor and enforcement/bailiff costs in Denmark – I have set this at a modest £5,000.

01/11/2021: I was reimbursed £12,653.60 and also awarded £750.00 in compensation. Kirkegaard’s vexatious strategy of making me incur unnecessary costs backfired on him.

Kirkegaard v Smith

If tl;dr, an overview of the frivolous libel suit Kirkegaard filed and lost can be read here. It concerns four comments I wrote, including on Twitter in January and February 2018.

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

To cut a long story short:

  • Kirkegaard filed a defamation lawsuit against me in December 2018.
  • He lost the preliminary judgment in December 2019; the judge struck out nearly all his claim against me (such as rejecting his pleaded meaning of my four comments).
  • Kirkegaard discontinued in May 2020 and became liable to pay my legal costs.
  • My honest opinion defence was upheld and my comments were not libel under statute law. In other words, they never caused Emil Kirkegaard “serious harm”.
  • Kirkegaard was ordered in September 2021 to pay my costs, but refused and missed the 14-day deadline; he’s still in contempt of court plus owes me additional interest.

For those who want to read a detailed background of what led up to the libel suit which explains my side of the story (and reasons why I had a feud with Kirkegaard), click here.

Emil Kirkegaard Owes £35,972 (+ Interest)

Since Kirkegaard is dishonest, the below legal documents prove he is thousands in debt:

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 costs order(s) are public. The following is a letter sent to to High Court on costs:

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 (£35,971.67). 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. Once post-judgment interest is added, I should in fact be able to recover 100% or more of my costs.

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 and he could have been on a no win no fee agreement. I do though know he spent £1500 on costs assessment when disputing the bill of costs (none of this is recoverable to him).

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 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 £750.00 in compensation for distress 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 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 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.

The Legal Ombudsman made my complaint and their decision public on 30 September 2021. Note I received one of the highest payouts for the decision period (01/10/2020 – 30/09/2021) out of nearly two thousand filed complaints. I am happy with the outcome.

Legal Ombudsman decision data for my complaint. A CSV file can be downloaded here (see #349 or D006522).

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 (blanked). 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 Denmark, 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) and reasonable readers would not interpret them to mean what Kirkegaard had claimed.

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, §1). 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, §1).

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, §3). 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 maliciousness or intent to deceive when I made them. The proven liar is Emil Kirkegaard who intentionally made many falsehoods throughout the lawsuit.

Emil Kirkegaard Lost Provisional Assessment of Costs

After losing the libel suit, Kirkegaard contested the bill of costs (£22,906.12). He offered me paltry sums of £8,315.20 and £11,500.00. I rejected these (and rebutted his points of dispute). He sizably lost the provisional assessment of costs – I was awarded £19,317.52.

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 the 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 £743.00 court fee). My solicitor summed up Kirkegaard’s poor conduct by noting he is ultimately responsible for his misfortune contrary to him playing the victim:

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).

Addendum

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