Kirkegaard v Smith

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If tl;dr, below is a summary of Kirkegaard v Smith ⚖️ by my solicitor:

The lawsuit (December 7, 2018 to May 21, 2020) ended when Emil Kirkegaard filed a notice of discontinuance.

Kirkegaard v Smith

Emil Kirkegaard on December 7, 2018 filed a frivolous defamation lawsuit in the High Court of Justice (QBD) against me; a few months earlier he had emailed me a letter before claim via Samuels Solicitors. He sued me for four internet posts (including a tweet) and was claiming £40,000.00 in general damages. He pleaded incorrect meanings of the words complained of in his particulars of claim and erroneously argued my posts were statements of fact, opposed to opinion by ignoring hyperlinks (which provided basis of my opinions). Unsurprisingly, the judge in the preliminary issues trial (judgment was made public on December 11, 2019) ruled to “reject the Claimant’s submissions and accept the Defendant’s submissions”* (Kirkegaard v Smith [2019] EWHC 3393 (QB) [57]) and criticised Kirkegaard for taking at least one of my posts out of context, by excluding the hyperlinked material (Kirkegaard v Smith supra [63]).

*The correct meaning of my four posts can be read in my commentary on the preliminary judgment.

Preliminary judgment: BAILII, 5RB, CaseMine.

On December 10, 2019 Kirkegaard was ordered to pay 50% of my legal costs (£13,500.00) for losing the preliminary judgment, but he applied to vary this order, permitting him to pay me monthly installments (£500.00). On March 10, 2020, the amended costs order was sealed by the court. He missed the deadline to pay me the first installment on March 28, 2020 – which resulted in me filing application for an unless order (on April 9, 2020) to dismiss the lawsuit for his noncompliance and misconduct. A hearing on the unless order was scheduled to take place on June 2, 2020; Kirkegaard discontinued shortly before (see below) knowing he would have almost certainly lost the hearing and the case would have been dismissed. I could have filed in contempt proceedings against Kirkegaard and summoned him to court in person for questioning, however, I opted not to do this (my focus was on the costs detailed assessment).

Costs order.

The preliminary issues trail had determined the “natural and ordinary meaning of the words complained of” in my four posts (Kirkegaard v Smith supra [21]). To put it simply, what a reasonable reader would understand the words to mean. The judge agreed with my pleaded meanings for the posts and rejected Kirkegaard’s submissions. None of the meanings of my posts (Kirkegaard v Smith supra [61, 65, 68, 71]) were ruled to be defamatory under statute law since the preliminary judgment did not deal with this, as clarified by the judge: “For the avoidance of doubt, I am not deciding the question of serious harm under [section] 1 of the Defamation Act 2013” (Kirkegaard v Smith supra [62]). All four of my posts were ruled to be unequivocally opinions and three with a basis in hyperlinked material; providing me with an honest opinion (formerly fair comment) defence under section 3 of the Defamation Act 2013.

One of the posts Kirkegaard sued me for writing was made on Twitter and “formed part of a thread of tweets which has since been deleted” (Kirkegaard v Smith supra [32]). Kirkegaard, however, failed to mention this which misconstrued its true meaning – it should have been read in context of the larger discussion (although I deleted the tweet, there was a screenshot). Three of my other posts complained of contained hyperlinks (Kirkegaard v Smith supra [34, 36, 38]), but Kirkegaard ignored these to distort their meanings. These posts were written on The Unz Review under provocation (Kirkegaard got his friend Anatoly Karlin to repeat false and scurrilous allegations about me). My defence at the preliminary hearing mentioned the Claimant’s online history of maligning me (Kirkegaard v Smith supra [41b]) to mitigate* his claim for damages; note this harassment has been ongoing since he discontinued the lawsuit.

*The conduct of a claimant is a factor the court can take into account when assessing damages.

On December 4, 2019, my solicitor sent a letter by email to Kirkegaard on the outcome of the preliminary judgment, pointing out I was the successful party and asking him to discontinue:

Letter to Emil Kirkegaard.

Concerning the 50% of legal costs I was not awarded – I managed to recover £13,403.60 (of £13,500.00) from my solicitor after I filed a complaint to the Legal Ombudsman. These costs stemmed from an adjourned hearing on May 22, 2019 because of a procedural mistake made by my solicitor (Kirkegaard v Smith supra [9]). A careless error resulted in the adjournment; I subsequently complained to be paid back money I spent on preparation for the hearing as well as compensation for disruption caused. After my solicitor did not comply and refused to pay back my legal costs, I complained to the ombudsman and successfully sued the first law firm* I hired (Debenhams Ottoway). I was paid back my costs on November 1, 2021 (plus I received an additional £750.00 in compensation). On September 30, 2021, the ombudsman made public the basic details of my complaint, remedy amount, and their downloadable data:

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

*I later used a different law firm (Keidan Harrison) primarily during the detailed assessment of costs.

On October 19, 2021, the ombudsman sent me a letter about their decision:

Legal Ombudsman’s final decision.

Kirkegaard wasted five months until eventually signing a notice (of discontinuance) on May 21, 2020 and he dropped the lawsuit. I suppose the delay was to cause me unnecessary costs, but this backfired since his own legal bill sharply increased. I applied for summary judgment to uphold my posts as honest opinion* and prove they would fail to meet the “serious harm” threshold for libel (Defamation Act 2013, §1) since their meanings were less severe than what Kirkegaard falsely pleaded in his particulars of claim. The hearing on the summary judgment was scheduled to take place on June 2, 2020 – the same day as the unless order. Realising he would have almost certainly lost both, he discontinued 11 days before and emailed me he had dropped the case. Because he discontinued the lawsuit he was not awarded any damages and became liable to pay my costs incurred after the preliminary judgment, up to discontinuance.

*Defamation Act 2013 replaced the common law fair comment defence with statutory defence honest opinion.

My four comments were not ruled to be statements of fact, but expressions of opinion (with a basis in hyperlinked material); so the burden of proof shifted onto Kirkegaard to prove they were not honest. In contrast, statements of fact in libel cases are presumed to be false unless verified as “[substantially] true” by a defendant (Defamation Act 2013, §2). I did not choose the latter legal defence because my posts were expressions of opinion – this meant they were neither true nor false and subjective; their meanings can be read here. Kirkegaard incorrectly pleaded my four posts were statements of fact (Kirkegaard v Smith supra [54]), based on ignoring hyperlinks in three posts which were contextual. The judge realised, “to determine meaning and the issue of fact versus opinion then the whole context of the posts has to be considered, and that includes the hyperlinked material” (Kirkegaard v Smith supra [57, 58]).

Possible defences under the Defamation Act 2013 – I chose honest opinion (§3) and was successful. Diagram from Sarah Green and Jodi Gardner, Tort Law (Bloomsbury Publishing, 2021) who cite Kirkegaard v Smith.

On May 11, 2020, Kirkegaard conceded to my solicitor my posts were not libel under statute law. In other words, their meanings would probably fail to meet the “serious harm” threshold for defamation and I also had a strong legal defence; it is worth noting the Claimant admitted he had no evidence against my four posts being honestly held opinions (see below). Ten days prior to Kirkegaard discontinuing, I offered him a generous settlement but which he rejected: to pay me £9,000.00 (saving £4,000.00) and £2,000.00 for finalising settlement agreement between us, removal of a defamatory captioned photo from his website and an agreed public statement (for at least 6 months). Kirkegaard declined this offer and instead was served the bill of costs (£22,906.12). My solicitor reasonably requested to an agreement he stop posting about me on his website or social media; this agreement would be reciprocal but he declined.

Letter to Emil Kirkegaard.

In the detailed assessment of costs, I stressed Kirkegaard’s unreasonable conduct:

A summary of Emil Kirkegaard’s unreasonable conduct throughout the lawsuit. Note that under Civil Procedure Rule 44.4(3) costs are partly decided based on conduct of each party “before, as well as during the proceedings”.

The bill of costs (£22,906.12) was served to Kirkegaard on July 8, 2020. Kirkegaard disputed the amount despite these costs could have been avoided if he discontinued when my solicitor advised him. He offered me £8,315.20 and £11,500.00, respectively; I rejected these offers as far too low and rebutted his points of dispute in the detailed assessment. I had to wait a year until the provisional assessment because the COVID-19 pandemic delayed legal proceedings. A costs judge ruled strongly in my favour: Kirkegaard was ordered to pay £19,317.52 (84% of the bill of costs). He had 21 days to appeal the outcome of the provisional assessment for an oral hearing but the period for challenging the assessment expired on September 7, 2021 and the next day, my solicitor sent a letter by email to the Senior Courts Costs Office (a division of High Court of Justice) applying for the final costs certificate, which took 20 days to be sealed:

Letter to the Senior Courts Costs Office.

On September 28, 2021, the final costs certificate for £26,686.43 was served to Kirkegaard:

Final costs certificate.

This sum consists of the following:

  • £1,931.75: additional payment under CPR 36.17(1) pursuant to Part 36.
  • £5,437.16: 100% of my costs spent drafting the bill of costs and provisional assessment.*
  • £19,317.52: 84% of the bill of costs (awarded by a costs judge).

*Under CPR 47.15(5) this includes £1,500 + VAT (I recovered £743.00 in court costs by fee remission).

Kirkegaard owes £2,563.24 interest on these costs:

  • £583.74: interest at 8% from 21/05/20 to 06/10/20 (= 138 days at £4.23 a day).
  • £1,979.50: interest at 10% above base rate from expiry of Part 36 offer from 07/10/20 to 28/09/21 (= 350 days at £5.35 a day + 14 days for payment until the deadline 12/10/21).

Subtotal: £29,249.67.

In addition, Kirkegaard owes me £6,722.00:

  • This sum is calculated by deducting a costs order (£6,778.00) dated May 24, 2019 (for the adjourned hearing) from the order (£13,500.00) dated December 10, 2019. When Kirkegaard signed a notice (of discontinuance) on May 21, 2020, the two orders were immediately offset against each other and he only owed the net-balance (£6,722.00).

Total: £35,971.67.

On September 15, 2020, my solicitor sent Kirkegaard a letter requesting payment; we did not have much faith he would do the right thing and pay me seeming as he is a vexatious litigant:

Letter to Emil Kirkegaard.

On May 18, 2021, I sent Kirkegaard yet another email requesting payment for the £6,722.00 debt, but he ignored me. On September 28, 2021, I considerately gave Emil Kirkegaard extra time to send me the £6,722.00 payment (in conjunction with the 14 day deadline for the final costs certificate). On October 12, 2021, Kirkegaard missed the deadline to pay my legal costs (£35,971.67) for the combined orders and refused to respond to my emails; he is in contempt of court for noncompliance and also committed perjury by lying under oath (by providing a false address to the court). His failure to pay the net-balance (£6,722.00) means I can claim the complete sum of the costs order dated December 10, 2019 (£13,500.00) when enforcing the judgment and his debt rises to £42,749.67. Under CPR 40.8 (Judgments Act 1838, §17), Kirkegaard is accruing post-judgment interest at 8% per annum until he makes full payment.

Smith v Kirkegaard

On January 20, 2022, I began legal proceedings in the High Court of Justice – to enforce the judgment debt in Denmark under Regulation (EU) No. 1215/2012* (Smith v Kirkegaard ⚖️). I also filed an application to register Emil Kirkegaard on the Registry of Judgments, Orders and Fines which affects his credit rating. UK is no longer an EU member state, but (Brussels I Recast) regulation still applies to enforcing judgments in High Court of England and Wales proceedings that started on/before December 31, 2020, which includes Kirkegaard v Smith. Article 67 of the EU-UK Withdrawal Agreement can be read here. It clarifies that judgments given in legal proceedings instituted before end of the transition period can still be enforced in EU member states. This can be done under CPR 74.4(6) which requires a Regulation (EU) No. 1215/2012 (Article 53), Annex I certificate, to be certified by the Foreign Process Section.

*Denmark implemented Regulation (EU) 1215/2012 under Danish Law No. 518 May 28, 2013.

On July 1, 2022, a writ (of control) was sealed by the High Court of Justice – it does not include the costs order dated December 10, 2019 (£13,500.00) and is not enforceable because Emil Kirkegaard lives outside of England and Wales, but the writ was necessary to register his addresses on the Registry of Judgments, Orders and Fines.