James Kirby

James’ experience includes:

• Appearing in a Part 8 directions hearing in the High Court regarding the removal of executors in a £multi-million estate
• Appearing successfully to strike out a TOLATA claim over the family home as an abuse of process
• Appearing successfully in a claim for a division of chattels under s.188 of the Law of Property Act 1925
• Drafting a settlement agreement in a 1975 Act dispute involving insolvency and survivorship issues
• Settling witness evidence in 1975 Act proceedings
• Attending mediation and drafting mediation position statement in a claim for family provision under the Inheritance Act 1975
• Drafting a Part 8 Claim Form and witness statement in an application by executors for directions in the administration of an estate
• Assisting in the preparation for trial (including skeleton argument and cross-examination notes) of a claim for undue influence regarding a will and the lifetime transfer of the family home
• Drafting a letter before claim regarding breach of fiduciary duty by executors and trustees

James’ regularly advises on matters concerning trusts and estates, Particular experience includes:

• 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
• Drafting a deed of appointment for an offshore trust
• Drafting advice on a proposed application under the Variation of Trusts Act 1958 and related inheritance tax issues
• Drafting advice on rectification of a trust instrument in a family settlement

James appears regularly in the County Court in landlord and tenant disputes. Other experience includes:

• Appearing in a two-day interim application in a high-value mortgage possession claim in the High Court (led by Jonathan Gavaghan)
• Appearing successfully to strike out a TOLATA claim as an abuse of process
• Applying successfully for land to be vested in a residents’ management company under the Insolvency Act 1986
• Appearing at final hearing of 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
• Successfully opposing a tenant’s application for an injunction against a landlord
• Representing a mortgagor’s tenant in mortgage possession proceedings
• Appearing in the First-Tier Tribunal Property Chamber (Residential Property)

James’ is a founding member of the Court of Protection Bar Association. Particular experience includes:

• Advising on the effect of loss of capacity on a “right to reside” in trust property
• Drafting a Position Statement for the Official Solicitor in a dispute concerning unauthorised gifts by an LPA attorney
• Drafting advice regarding professional negligence and the creation and abuse of Lasting Powers of Attorney

James has appeared as a junior barrister for HMRC in the First-Tier Tribunal (Tax Chamber) in a substantial test case concerning high-value income tax avoidance schemes. He also has experience of drafting statements of case and other documents for HMRC.

James’ experience relating to capital taxes includes:

• Advising executors on deductibility of liabilities for IHT purposes
• Drafting a deed of variation of a will including IHT and CGT elections
• Drafting advice on a proposed application under the Variation of Trusts Act 1958 to mitigate liability for IHT on an intestate estate
• Assisting Georgia Bedworth in a case involving CGT, corporate insolvency and cross-border issue

James has extensive experience of partnership and LLP matters. During his pupillage he sat with renowned partnership practitioners Jeremy Callman and Jonathan Gavaghan.

Particular experience includes:

• Appearing in the First-Tier Tribunal (Tax Chamber) in a four-day hearing concerning corporate partner tax avoidance schemes
• 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:

• Providing legal research and advice 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
• Appearing regularly in the Winding Up Court and before Insolvency & Company Court Judges in chambers
• Drafting an application notice and skeleton argument for setting aside service of a freezing order out of the jurisdiction

James’ experience includes:

• Advising on the inheritance tax implications of a gift to a community benefit society
• Advising on testamentary charitable gifts and CIO status