James Kirby is a Chancery barrister with a particular interest in private client work (both contentious and non-contentious), Court of Protection and capital taxes.
James appears regularly in the High Court and County Court, and has also appeared in the First-tier Tribunal (Tax Chamber) and the Court of Protection. He is equally happy being instructed on his own account or as a junior within a wider team.
Before becoming a barrister, James was a Research Fellow in History at Trinity College, Cambridge.
Practice Areas
James’ experience includes:
- Appearing as junior counsel (led by Eason Rajah QC and Georgia Bedworth) in Hinduja v Hinduja [2020] EWHC 1533 (Ch) [2020] 4 WLR 93 (contested application for appointment of litigation friend)
- Claims to remove executors under s.50 of the Administration of Justice Act 1985
- Drafting skeleton arguments, witness evidence and summonses in offshore trust proceedings
- Advising on merits, drafting evidence and drafting settlement agreements in claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Striking out a TOLATA claim over a family home as an abuse of process (and representing the client successfully on appeal)
- Advising on merits in a potential breach of trust claim against an executor/trustee
- Appearing successfully in a claim for a division of chattels under s.188 of the Law of Property Act 1925
Private Client: Non-Contentious
James regularly advises trustees, personal representatives and beneficiaries on matters concerning trusts and estates, including tax matters.
His experience includes:
- Advising on class gifts in wills, including the rules governing the closing of classes
- Advising trustees on the scope of a power of advancement
- Advising on the effect of a conditional revocation clause in a will
- Advising on the construction of a will directing executors to pay tax on property subject to a testamentary power of appointment
- Advising an executor on conflict of laws issues relating to foreign assets
- Advising trustees on terminable life interests in residential property (including tax consequences)
- Drafting deeds of variation under s.142 of the Inheritance Tax Act 1984
- Drafting trustee resolutions relating to beneficiary loans
James has a strong interest in Court of Protection work. He is an editor of the Court of Protection Law Reports and was a founding committee member of the Court of Protection Bar Association.
Recent experience includes:
- Acting for the Official Solicitor in urgent statutory will applications
- Advising on the calling in of a deputy’s bond on grounds of professional negligence
- Acting (as junior counsel) in a complex and high-value property and affairs dispute
- Advising on the effect of loss of capacity on a beneficiary’s “right to reside” in trust property
- Drafting advice regarding professional negligence and the creation and abuse of Lasting Powers of Attorney
James’ experience relating to capital taxes includes:
- Advising on whether substantial lifetime gifts triggered a pre-owned assets tax charge or constituted gifts with reservation of benefit
- Advising on claiming residential nil-rate band after the expiry of the two-year period
- Advising on the grossing up for IHT purposes of a legacy to pay tax on settled property
- Advising executors on the deductibility of liabilities for IHT purposes
- Advising on and drafting a s.144 appointment from a nil-rate band trust
- Drafting correspondence with HMRC
- Drafting s.142 deeds of variation
- Advising on IHT domicile issues
James also has experience of tax litigation as junior counsel for HMRC in a series of cases concerning partnership income tax avoidance schemes: Odey Asset Management LLP v HMRC [2021] UKFTT 31 (TC) and HFFX LLP v HMRC [2021] UKFTT 36 (TC).
James has a particular interest in the ownership and occupation of trust and estate property.
His experience in property-related matters includes:
- Appearing successfully to strike out a TOLATA claim relating to a family home as an abuse of process
- Appearing in a two-day interim application in a high-value mortgage possession claim in the High Court (led by Jonathan Gavaghan)
- Applying successfully for land to be vested in a residents’ management company under the Insolvency Act 1986
- Appearing at a disposal hearing of a Part 8 claim for an order for sale
- Drafting Particulars of Claim in a dispute concerning breach of trust by the vendor of a property
- Advising on a proposed application for an order for sale under TOLATA
- Possession proceedings against trespassers (commercial and residential), including interim possession orders
James’ experience includes acting as junior counsel in high-value LLP income tax appeals in the First-tier Tribunal (Tax Chamber): Odey Asset Management LLP v HMRC [2021] UKFTT 31 (TC) and HFFX LLP v HMRC [2021] UKFTT 36 (TC). Both cases raised significant points of partnership/LLP law concerning profit allocations and the nature of a member’s interest in an LLP.
Other experience includes:
- Drafting a letter before claim in a partner exit dispute in a major professional services firm
- Drafting advice concerning partnership property
- Drafting written submissions for arbitration in a partnership dispute
James’ experience includes:
- Advising on whether a claim by a charity for an injunction constituted “charity proceedings” under s.115 of the Charities Act 2011
- Advising on the inheritance tax implications of a gift to a community benefit society
- Advising on charitable gifts in a will and CIO status
Recent highlights include:
- Providing legal research, advice and drafting to a major financial institution on specialist trust and insolvency issues
- Applying successfully for a vesting order under section 181 of the Insolvency Act 1986
- Representing clients in winding up and bankruptcy petitions
- Assisting in drafting an application notice and skeleton argument for setting aside service of a freezing order out of the jurisdiction
- Representing a solicitor’s firm at a CCMC in a claim concerning unpaid legal fees
Qualifications
- Bar Professional Training Course (Outstanding), City Law School (2017)
- Graduate Diploma in Law (Distinction; Equity & Trusts Prize), City Law School (2016)
- Princess Royal Scholarships, Inner Temple (BPTC and GDL)
- DPhil in History, Balliol College, Oxford (2014)
- MSt in History (Distinction), Balliol College, Oxford (2011)
- BA in History (First Class – highest in university), Balliol College, Oxford (2010)
Associations & Memberships
- Member of the Chancery Bar Association
- Member of the Court of Protection Bar Association
- Fellow of the Royal Historical Society
Publications
James is an editor of the forthcoming edition of Williams on Wills (11th edn)
‘Tax Planning in the Court of Protection’, Lawskills (Sep. 2018)
James has also published a number of articles in leading historical journals and a book (on 19th-century religious history) with Oxford University Press.
James Kirby is a self-employed, independent barrister whose practice is regulated by the Bar Standards Board [Bar Council Ref 69244]. He is fully insured with the Bar Mutual Indemnity Fund [BMIF Ref 2360/079] to provide legal services, please refer to the BMIF website for full details of the world-wide cover provided. He is registered for VAT under the reference 304589790.
