Thursday, 31 March 2011

The ACB of Defending Against a Libel Claim

The Particulars of Claim

Braving the gentle spring sunshine and complete lack of gale-force headwinds despite another rather annoying chest infection, this writer did on Monday pedal his way to the Civil Courts in Manchester to lodge the rather extensive defense against the equally extensive Particulars of Claim (PoC)(1) served on this writer by the University of Salford (hereafter referred to as the Claimant). Now the law is a serious matter. Chief Ironside wasn't held in high esteem among his contemporaries because of his wry wit. Nor did he use a series of tried and tested comedic asides when bringing rogue elements of the San Fransisco criminal fraternity to book. Did the Sweeney's sardonic and whisky swilling Inspector Reagan adopt a humouristic approach to law and order despite sharing an office with Dennis Waterman? He did not. Yet despite the solemnity that often accompanies the issuance of a libel proceedings in the High Court, the University's Particulars, if I may use the term without fear of attracting another lawsuit for cracking one off, have been the source of some mirth to myself, my 'servants' and my 'agents' for myriad reasons I feel somehow obliged to outline below.

The immanence of coin scantiness

Firstly, to place things into their proper perspective it's worth noting that this writer is far from happy with his employment status and bank account at the moment. Such is the cardinal insufficiency of one's wallet at this particular juncture that despite the Relief of Insolvent Debtors Act of 1712 and regular visits from the Red Cross, some have suggested that the Claimant might be better served having this alleged miscreant dealt with via the 18th century and the London Comptor. However, putting to one side issues of abject beggary for the moment, indigence does tend to place one at a distinct disadvantage when it comes to one's ability to purchase the services of the finest libel lawyers in the United Kingdom. Thus, a certain reliance has developed on the advice of good friends, seekers of justice, and wishers of well from afar. So with this in mind, it explains why these Particulars of Claim have been through a few hands and have in their wake provoked rather enthusiastic cachinnations.

I wonder how much I'll get for these strides. More importantly
will they cover the cost of a top barrister for at least one hour?

Exactly who's doing the suing?

Which brings us to one aspect of the source of this mirth - the lack of any real particulars within this Particulars of Claim. You see, it's the sheer extensiveness of this document that has scored high on the guffaw-meter. If they'd been hewn from solid granite, carted down from Mount Sinai around the time of the book of Exodus BC and hand-delivered by Charlton Heston I'd have been less impressed. I've been reliably informed that the best PoC tend to err on the side of brevity.

If your senior manager had a massive pair of sponge hands would the 
widespread chortling necessarily register on this guffaw-meter?
Why? Well it appears that if you have allegedly defamed someone, that defamation is pretty obvious and therefore a superior Particulars of Claim is usually quite succinct. It could easily be encapsulated into a short paragraph or two. When they reach about twelve pages in length, the alarm bells should be pealing like the  arse of an over-zealous apprentice nude sunbather from Macclesfield. Now if this wasn't enough, they were also insufficiently particularised. It states clearly on page one of the PoC that the Claimant is the University of Salford. It's widely accepted among people of some considerable legal knowledge in the field of libel law that the UoS as a public authority has no locus standi or legal standing to bring an action for libel. I've been informed that this is all pretty basic stuff that any libel lawyer worth their sodium chloride would know. To add to the confusion, the PoC states:

"(6) The defendant, through the website operated by him, either wrote or caused to be written or published or caused to be published a number of articles that contained references and words that were defamatory of the claimant.

It seems quite straightforward. However, rather confusingly, the PoC later goes on to suggest an alleged defamation against the extensively cognominated Deputy Vice Chancellor and Registrar and Secretary and Dr Adrian Graves and the Vice Chancellor Martin Hall when it states:

"By their ordinary and natural meaning and by way of innuendo the words either mean or are reasonably understood to mean that:

- Dr Graves is the sort of man who has on this occasion and who has on other occasions made grave errors of judgment, and who must therefore lack judgment, must make bad decisions and must be incompetent...
- The reference to Martin Hall is by way of irony and is meant to imply that, despite promoting himself as such, he is neither a human rights activist nor a believer in social justice...

- That Dr Graves and Professor Hall and therefore the claimant have acted wrongfully and unlawfully and in a secretive manner by keeping from the students and the general public matters which both the students and the general public are entitled to know..."

You box-wearing alleged berk... I clearly left instructions
for you to particularise the claims not the clams

So who allegedly has been defamed here? The University or Graves and Hall as employees of the Claimant? Such is the confusion that I'm anticipating further claims for defamation from one particular porter in University House who might well have taken exception to the slandering of his neck tie by me, four years ago this May 11th in front of witnesses.

The lack of finer detail...

Many readers might concur that it would seem common sensical to suggest that libel law is a specialist field. A lawyer practicing in this specialism would therefore have spent many a long year in studying and training. Moreover, as Professor Hall had affix't his signature to the PoC, 'tis a reasonable assumption that he did himself cast a critical eye over the contents of the Particulars prior to signing it. He would also then have noticed that whomsoever had drawn up the Claim Form (N1) on behalf of the University - it was Ian Austin - hadn't particularised the amount of damages being sought. It simply said 'TBC' which one might reasonably understand to mean 'TO BE CONFIRMED'. This immediately engendered a spate of nocturnal emissions of the diarrheal kind. When was it going to be confirmed I wondered? At the start? During the trial itself? Three minutes before the end or one hour before the alleged defamation occurred utilising a borrowed inter-spatial holodeck at MediaCity?* Given the proximity to the BBC, I wondered would the expert services of ex-Soviet remote viewers from a 1983 episode of Horizon be sought in order to project onto a wall in the judge's chambers far-flung figures from even farther-flung places? Or would the last laugh really be on me as the damages were finally confirmed in person by a fanatical management retiree on loan from the wider HE sector in a bath chair, who hasn't yet been told the war is over, reciting almost canonically from crumbling parchment as my mortal remains are physically evicted from their mahogany-veneered sarcophagus and pissed on prior to them being tipped unceremoniously into a paupers grave adjacent to Lumns Lane tip.**

The mind boggled. Could it be any worse than this? Could the alleged defamation be so severe and command damages of such magnitude that the best mathematical minds employed by the Claimant were having difficulty putting it in terms that could be written with a Biro on an A4 sheet of paper, never mind understood by a jury comprised of mere selfish genomes? Yes that was it! I shuddered. Maybe 'TBC' meant TOO BIG to COMPREHEND! I dismissed this after a few days as silly.

What do words cost?

There might be a simpler explanation. In order to particularise damages, one would firstly have to also particularise (demonstrate in the PoC) in fiscal terms or through other quantifiable means, the actual damage suffered. For example did the writings on Rat Catchers of the Sewers directly correlate into nineteen thousand less students enrolling at UoS in 2010/11? Or has the Claimant found it more difficult to recruit staff such as Finance Directors and PA's? Have librarians been in short supply recruitment-wise because of the pitiful grammar and the blatant over-use of the exclamation mark!!!? I think you get the picture. You couldn't put down something along the lines of 'I heard someone laugh out loud whilst reading at their computer therefore it's clear evidence that this vile website has corrupted staff/students en masse and led to broad-spectrum smiling within our veritable institution particularly when they see me with my shirt sleeves rolled up' could you? Neither could you sellotape £100,000 of damages to it? It would fall off. Like a lice-ridden syrup,(2) a judge wouldn't wear it.

Piss off!
Evidence of alleged damage - also know as empirical evidence - would most certainly have to be provided in court to demonstrate this. I am reliably informed that it should at least be in the Particulars. Lawyers for the Claimant did have a go. The empirical evidence of serious damage they chose to introduce was this this...

"(8) By reason of the publication of those matters complained of and set out within paragraph 7 hereof, the Claimant's reputation and standing has been seriously damaged amongst students, teachers and management within the academic community. As evidence of the extent of the harm caused to the claimant, and the extent of the defendant's publication, reliance is placed upon that which is written at page 7 of the blog under the heading "A big thank you" where it is stated that the website is "becoming increasingly popular by the week" I said this:

"It is not clear as to who is the claimant and therefore whose reputations it is alleged has suffered harm: the University or Dr Graves and Professor Hall who are employees of the University.

It seemed quite logical really.

The lack of any finer defence...

Indeed at several points it was impossible to produce any defence as the actual allegedly defamatory words had not been included in the PoC. For example, the Claimant alleges that "[t]he contents of a board game which is set out and described at Pg8-of the attachment (and which is too long to repeat herein) are defamatory..." The problem is in not repeating it 'herein' it doesn't stipulate which precise words in the opinion of the Claimant are alleged to be defamatory. I thought it wise to record this in the defence along the lines of...

"The claimant has not sufficiently particularised this part of the claim in laying out the words on which the claimant alleges a defamation or defamations have been committed. This makes it impossible to provide an adequate defence or rebuttal."

A glimmer of hope...

Apart from quite a bit of stuff not in there, there was some stuff that was in there. Here is not the place to print vast tracts from the Claimant's PoC or my defence however much one might wish to. Yet in the interest of balance I thought it wise to include at least one claim that is clearly set out and which the Claimant may believe provides them with a compelling case. Teaching and academic staff as well as students at UoS might like to take note:

"(i) At page 20 of the attachment the words written under the heading "Back to the real world" have the natural and ordinary meaning and are meant to mean or are understood to mean that the claimant:

- Makes its staff members undertake an excessive workload.
- Teaches its students in lecture and tutorial groups that are too large and this affects the quality of the teaching services provided to its students.

Remembering for one moment that I had been a UCU rep at UoS and as a consequence, had my ears bent on many occasions by UCU members and other staff over these particular issues, I thought it best to keep the defence short and to the point:

"Defence: I submit a defence of justification and also that of fair comment on the basis that there is evidence to suggest both.

Well the defence is firmly lodged with the High Court. We shall await with eager anticipation the first court hearing and see what the judge's views are once s/he's had a gander at the Claimant's Particulars.

* This doesn't really exist and is considered to be satirical
** Lumns Lane Council tip is very well organised and located not far from Agecroft Cemetery in Salford. The staff are very helpful. However, despite being very well laid out, there is no paupers' grave adjacent to the tip and as such, this aspect is made up (ie fictional) and certainly not meant to represent practices condoned by managers at any Higher Education institution in the North West or any other geographical location either now or in the future. It is asserted to be written in the finest tradition of satire and parody and the time-honored tradition of self-abuse self-deprecation.

(1) University of Salford (Claimant) and Dr Gary P Duke (Defendant), claim no OMA90401, Defence against Claimant's Particulars of Claim, lodged with the Manchester District Registry Monday 28th March 2011
(2)A 'syrup' is a wig (syrup of figs) for all those who have no prior working knowledge of Cockerney rhyming slang

Disclaimer: This is largely a work of fiction, satire and parody, interspersed with lots of fair and honest comment, as well as a large sprinkling of the author's opinion. Any facts contained herein have been provided by the Claimant in their Particulars of Claim. All else is simple and straight forward comment on this content. The usual disclaimer protocols apply (see below).

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Monday, 21 March 2011

My dear chap it doesn't just happen in Egypt - Join the picket lines this week!

Don't stay at home - why you shold join the picket lines!

This week and next will see UCU members in universities and colleges across the UK (March 24th in England) striking against attacks by the employers on pensions. Today lecturers in Scotland took strike action and lecturers in Wales are striking tomorrow (18th March). Vagrants have learned that lecturers at Warwick University were also peopling the picket lines today to defend their pensions and jobs. Why should lecturers strike? The fight for decent pensions is not some sort of abstract disagreement between employers and the UCU. Pensions are deferred pay. They're not gold plated. Gold plated pensions tend to inhabit the gilded corridors traversed by the likes of unelected bankers, Vice Chancellors and the CEOs of large concerns. Thus despite what BBC newsreaders and the Tories would have us believe pensions are an entitlement and not gifted to us by overly generous bosses. 

UCU general secretary, Sally Hunt, said: 'Staff at colleges and universities across the UK will be out on strike on Thursday 24 March in an unprecedented level of action across the further and higher education sectors. The attacks on staff's pensions, pay and job security have created real anger throughout the sector and instead of burying their heads in the sand the employers need to respond urgently to UCU's attempts to negotiate.'

The scales of justice weighed heavily in favour of
strike action by judges in France earlier this February 

Democracy from below and the importance of collective action

Staff at University of Salford will also be on strike on the 22nd of March. The Vagrants are pleased that Vice Chancellor Martin Hall has emailed staff in order to reaffirm that democracy is alive and kicking at the University of Salford. He informs us that the majority of those who participated in the recent ballot for industrial action voted for strike action. Like this Vagrant, Professor Hall has a clear commitment to the concept of liberal democracy and the notion of majority rule. It is indeed heartening to see university employees actively engaging in the grass roots participatory democracy within the union particularly when it centres on such important issues such as pensions, pay and jobs.

Deepening our democracy

But this democracy shouldn't cease the moment you've placed your cross on the ballot paper. UCU members should engage with non-members, explain to them why they're taking action and ask them to join the union and join them on the day. Indeed why stop with colleagues. Why not involve students as well. This strike is not just about pensions but the future health of Higher and Further Education. You'll be pushing at an open door as far as students are concerned. And in keeping with the spirit of extending liberal democratic values into the workplace wouldn't it be nice if all staff including senior managers, regardless of whether they are members of the UCU or not (or whether they voted or not) respected the will of the majority who voted and decided not to cross picket lines. I mean you might not vote in a general election but it doesn't mean you can reject the decisions and laws passed by Parliament does it? That would be vaguely anti-democratic wouldn't it?

Picket line fables and folklore galore

Picket lines are a great place to build solidarity, meet new colleagues, swap stories and absorb some of the picket line folklore that permeate universities across the country during periods of heightened militancy. You might even hear the hoary old urban myth of the conscientious manager, possibly a poor old Dean or Head of School, desperate to demonstrate their commitment to collective action and the plight of their colleagues by resigning from their union in order to cross a picket line. It's certainly done the rounds.

Time to join the union

Indeed, for those who have not yet joined the UCU (and other campus unions) what better time, under the shadow of a finely honed axe poised menacingly over several hundred jobs. What is clear is that if it falls, its keen edge will not discriminate between members and non-members of trade unions. And on this note, today in a wonderful show of solidarity, students at Edinburgh University went into occupation in support of striking Scottish teaching staff. There is a growing awareness among both students and university workers that the protests against fees and the strikes against the attacks on pensions, conditions and job losses are one and the same.

Edinburgh student occupy in solidarity with striking lecturers last week
A Vagrant's life can be a lonely life

We Vagrants by our very nature are often isolated from wider society... in Beckerian terms we're 'outsiders'. When the opportunity arises to indulge in a little collective endeavour, we grasp it eagerly with our grimy hands. The mass movements that exploded onto the world stage driven by the Egyptian and Tunisian masses in first two months of 2011 have demonstrated that collective struggle is firmly back on the agenda.  This week's strikes are therefore part of the larger global opposition to driving down our standards of living  in the now and the future (lower pension benefits) and driving up the profits of the already super-rich. We have a world to win or a lot to lose. Next to this, the thinly veiled threats of pecuniary loss should be seen for what they are - a clear indication that when push comes to shove, those at the top table are not really our friends and that they're more than a little rattled at the prospect of what our own collective endeavour might bring.

For those who do brave the elements, a picket line is an exciting place.  This Vagrant will be joining those out on the picket lines at Salford on Thursday. As strikes rarely garner much positive commentary on the television news or in the press, we have provided a little demonstration of wider action and solidarity among colleagues across the country happening this week.

Oh and by the way, don't forget to book your seat for what promises to be a huge demonstration against the Tory cuts in London this Saturday.

The full list of Universities that are out 17-22 March is below

The University of Aberdeen
Aberystwyth University
University of Bangor
University of Bath
Queen's University of Belfast
University of London, Birkbeck College
The University of Birmingham
University of Bradford
University of Bristol
Brunel University
University of Cambridge
Cardiff University
City University
Courtauld Institute of Art
Cranfield University
The University of Dundee
Durham University
University of East Anglia
University of Edinburgh
University of Essex
University of Exeter
The University of Glasgow
University of London, Goldsmiths
Heriot-Watt University
The University of Hull
Imperial College London
University of London, Institute of Education
The University of Kent
King's College London
University of Wales Lampeter
University of Lancaster
The University of Leeds
University of Leicester
University of Liverpool
London School of Hygiene and Tropical Medicine
London School of Economics
Loughborough University
The University of Manchester
Newcastle University
The University of Nottingham
Open University
University of Oxford
University of London, Queen Mary
University of Reading
Royal College of Art
University of London, Royal Holloway
The University of Salford
University of London, School of Pharmacy
University of London, Senate House
The University of Sheffield
University of London, SOAS
University of Southampton
University of St Andrews
The University of Stirling
University of Strathclyde
University of Surrey
University of Sussex
Swansea University
University of Ulster
University College London
University of Warwick
University of York

Universities still finalising details of their action because of holiday dates:

Durham University
Newcastle University
Institute of Education
University of Cambridge
University of Oxford
University of Sussex
University of Warwick
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Wednesday, 16 March 2011

A Libel Claim

The McLalford One

By now purveyors of this website will be aware that I am being sued for libel by the University of Salford. Yes it's now official! The claim was served upon me on day one of my recent (adjourned until August) Employment Tribunal. It was a nice touch if a little predictable. It's a very interesting case that The Claimant makes all of which we shall be exploring in greater of detail over the coming weeks and months. That is, as long as I can fend off an injunction restraining my good self and my 'servants or agents from publishing or causing to be published the same or similar words defamatory of the claimant.'(1) This I see as a gross calumny as being unemployed, I simply cannot afford any servants or chauffeurs and I'm not yet the Director General of MI5 as I've only just sent off my completed application. It never occurred to me that when first applying the quill of scrutiny to the yellowed parchment of accountability (the first January Vice Consul's Newsletter) that many years down the line, I would be vested with the unenviable role of defender of freedom of speech (FoS) and upholder of the right to criticise (RtC) without fear of penury at the University of Salford. But there we go. 

Now before I heave-to, I'd just like to state for the record that there is overwhelming evidence to suggest that Professor Hall and his immediate corporate subordinate Dr Graves are diligent and judicious officers of the University. Taking this nautical theme a stage further, few would disagree that steering such a great ship is vested with a great deal of authority and calls for decisive leadership skills. However, when it comes to matters of law it also calls for a deal of precision particularly when one sets in motion the formidable behemoth known as English Libel Law. One mentions this because one or two anomalies have emerged in the fabric of space-time situated directly over very specific geographical coordinates within the 'Particulars of Claim' sent to me by the University's lawyers. Being a generous chap, I thought I'd take the opportunity to share them with readers.

One is partial for certain particularities within the Particulars of Claim

One of the grounds for suing me for defamation is that I am alleged to have suggested through the use of words organised in a satirical fashion on a Rat Catchers of the Sewers blog "[t]hat Dr Graves and Professor Hall and therefore the claimant [the University] have acted wrongfully and unlawfully and in a secretive manner by keeping from the students and the general public matters which both the students and the general public are entitled to know."(2) The allegation is also made that through rearranging more words into critical satire with a hint of lampoonery and other writings on the Rat Catchers blog, I have stated that "the claimant's senior members of staff and therefore the claimant itself has deliberately flouted and ignored the law and its legal obligations and in so acting considers itself to be above the law and acts in a way that is above the law."(3) Pretty straight forward on the face of it.

One might also say with a degree of certainty that Professor Hall must have read through the 'Particulars of Claim'. I say this with some puissance because it appears to have his signature on it (see below). Now I'm generally regarded to be about as quick on the uptake as a tectonic plate in full reverse, but as I read and absorbed the detail of the claim something occurred to me that readers might be able to help explain. 

One signature from a Vice Chancellor and the facts stated are in his belief true

Dates are not the only fruit

On the 17th November 2010 I made a Subject Access Request to Mr Matthew Stephenson of UoS. Under an SAR, the University by law (Data Protection Act 1998), must provide all information and data that it holds on the requester. My letter went something like this...

Dear Matthew

Further to my email to you dated November 9th 2010, I enclose a cheque in the sum of £10 made payable to University of Salford in lieu of payment for a Subject Access Request under the provisions of the Data Protection Act 1998. I would like you to supply me with all data held on me by the University between the period 1st November 2009 to the 17th November 2010.

I can appreciate the immense pressure that you must be under in your role as Head of Information Governance, and the volume of work that must pass through your office daily. With this in mind I have included below a list of the individuals/employees and former employees who may hold, or have held information pertaining to me or who have been involved in any University business pertaining to me. This list may not include all individuals/employees of the University that hold information on me. I would of course expect you to supply any information to me from individuals who are not included on this list.

I will not accept the claim that any correspondence that has been courtesy copied (Cc’d) to University solicitors or legal representatives is legally privileged and will expect any such information to be supplied to me under the terms of the DPA 1998.

Given the past reticence of University employees to supply all information held on me, as well as those who have lied claiming they hold no information, or indeed who have withheld information, only supplying such information when I have raised the issue with you - I refer specifically to my email to you dated 11th February 2010 - any dissembling such as this, or indeed any attempts to circumvent the legal obligations of the University under the DPA 1998, shall immediately be brought to the attention of the Information Commissioner. I also reserve the right to bring matters such as these to the attention of the Employment Tribunal panel, and to the attention of the Court in any future libel proceedings the University wishes to pursue against me.

Kind regards

Gary Duke

And the list went something like this...

Martin Hall
Adrian Graves
Keith Watkinson
Scott Mullholland
Mark Rollinson
Paul Jenks
Prof John Wilson
Ms Xiang Li
Prof Cynthia Pine
Alison Purnell
Ian Austin
Prof Michael Harloe
Matthew Stephenson
Phillip Hopwood
Simon Atwell
Linda Puttick
Heather Mortimer
Richard Morford
Paul Rowlett
Chris Wells
Alan Mawson
Tony Britten
Martin Bull
Prof Chris Andrews
Christine Sheehy
Phillippa Whitakker
Liz Bromley
Ms Lynsey Harris (any correspondence that is not privileged)
Phillip Benton
Edward Rowan (acting for the University in matters relating to Dr Duke)
Jamie Brown
Matthew Webber
Ricky Chotai
Paul Farrall
Jan McKenzie
Any correspondence between the University and the police concerning Dr Duke
All information held by University security or any third party security employed by the University
Any correspondence held by the University between itself and the UCU regional officials or now or past serving UCU branch officials concerning Dr Duke
Any correspondence between the University and any UCU reps and the University concerning Dr Duke

An authoritative letter received

After much to-ing and fro-ing, the sending of large numbers of documents to me (including many copies and some documents that had large parts and names redacted) delays, not sending documents I knew to exist, and vigorous letters to University lawyers, as if to draw a line under my request Martin Hall wrote to me on the 23rd February 2011. It was a nice gesture.

Another signature from a Vice Chancellor
Having received the Vice Chancellor's personal assurance that I had "all" the information I was entitled to, and there was nothing else to send to me, I girded my loins, grabbed the nearest jawbone of an ass and braced myself for the forthcoming battle in the Employment Tribunal. This I did in the knowledge that any documentary evidence held by the University that I might need to rely on in evidence, was safely in my own hands. However, it was with great alarm that the doorbell rang on Monday afternoon. This was odd as I don't have a doorbell. On the other side of the door was a postal worker who handed me a rather large bundle of documents and then walked off barely suppressing her imprudent laughter. This formidable bundle was from the Information Commissioner and supplied to me courtesy of a Subject Access Request made by me to the ICO around the beginning of February 2011. 

Should the owner of this finger plan an extension for all the extra documents?

The bundle contained lots of emails and documents but also included this...

...which is the top part of this and was signed by...

A quick refresher

There were a few documents in this bundle that I'd not seen before. They were from the UoS to the Information Commissioner and they concerned me. They'd have to as it's highly unlikely that the ICO of all people would supply me with documents about someone else. Before we journey any further it might be prudent to take a moment to refresh our collective RAM - part of the claim against me for defamation is that in their words, I am alleged to have suggested on a Rat Catchers blog "[t]hat Dr Graves and Professor Hall and therefore the claimant [the University] have acted wrongfully and unlawfully and in a secretive manner by keeping from the students and the general public matters which both the students and the general public are entitled to know."

Ever so slightly contradictory

This led to a question or two springing forth in the dysfunctional cerebrality of a serial Morrisons shopper like some irked Greek goddess of wisdom who's having to resit her GCSE in maths. Questions such as was Prof Hall aware before he affix't his signature to the 'Particulars of Claim' that his second-in-command had written letters to the ICO? Did he know that the ICO had taken the unusual step of having a face-to-face meeting with Matthew Stephenson and Alison Purnell which is recorded in emails between the ICO and the University? Did he know that the University's lawyers Pinsent and Masons had also written to the ICO on the 1st February 2011 explaining why the UoS had refused more FOIs on the grounds of vexatiousness prior to the ICO making his decision regarding my complaint against the University? He was clearly aware of the decision of the ICO as he'd received a letter dated the 7th February 2011 announcing the ICO's decision. It was all in the bundle and more.

Now I might be missing something here. Martin Hall is an honourable man and a man of integrity. As such he would never put his signature to a document called the 'Particulars of Claim' that was false or untrue? Clearly, if the University illegally withheld information that it was legally obliged to provide me with, then the suggestion that the University have acted wrongfully in keeping secret information that students and the general public are entitled to know would be proven. Of course this is all argumentative... little more than the highly abstract theoretical musings that are characteristic of an over-excited dialectical historian with pretensions towards heinous logorreah (look it up). But unraveling the ethical machinations within the higher echelons of University administration is almost a physical impossibility for someone who finds it challenging simply putting his trousers on in the morning. It may be the case that the Vice Chancellor did not know any of the above. If he did know then he is open to accusation of lying. If he did not know then the question arises as to why did his subordinates not give him the information?

Far from being 'a berk' Dr Duke is taking necessary preemptive precautions in the
event that Hall and Graves are successful in silencing his laptop...
An interesting question arises or does it?

Now a few more interesting questions have crossed a gin-soaked mind. Was Hall deliberately misled by his subordinates or was it incompetence? If the former then surely it amounts to gross misconduct? If the latter then whose incompetence? There is of course the possibility suggested by Hall that he considered that he did not have to provide any further information. If this was his opinion it would be interesting to know who provided this advice to him? This latter suggestion that Hall considered he did not have to provide any more information is somewhat undermined by the speed with which the ICO provided this information. Moreover, the ICO's response and the provision of specific documents gives lie to the idea that the University did not have to provide the information. The ICO's response shows that Hall's personal assurance, that I had been provided with "all" the information I was entitled to, was worthless. When the leader of an august institution such as the University of Salford writes, one can usually rely on its accuracy and veracity. After this incident can anyone place the same degree of reliance on what the University says? There may be a perfectly acceptable reason for all this, yet given the University's reluctance to share even material it's supposed to share with the great British public, please don't hold your breath waiting! I don't want to be on the end of a medical malpractice suit as well.

Dear Dr Duke... Dear Mr Stephenson...

Even now, despite the ocular evidence, the University denies it has any other information that according to Data Protection legislation it has to supply me with. Embarrassingly for the University, and, as if on the whimsy of a Paul Daniels or some other esteemed purveyor of magical entertainment like the long-deceased David Nixon, an email from Mr Stephenson arrived yesterday in response to an earlier letter from my good self to him dated 23 February 2011. It said:

Dear Dr Duke,

Your letter has been considered. The University’s view is that you have received all information to which you are entitled under the Data Protection Act 1998.

Yours sincerely

Matthew Stephenson

Maybe I should write back along the lines of "Dear Mr Stephenson. I did receive quite a bit of information to which I am entitled. The problem is that I did not receive all the information I was entitled to from you!

Yours faithfully

Dr Gary P Duke"

I think I'll not bother and save this one for the High Court.

(1) Page 11, Particulars of Claim signed by Martin Hall 28th February 2011
(2) Page 8, Particulars of Claim signed by Martin Hall 28th February 2011.
(3) Page 5, Particulars of Claim signed by Martin Hall 28th February 2011.

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Thursday, 10 March 2011

Dear Mr Kafka...

In lieu of the seven percent solution

Like most people, I've had my share of joints. The Sunday ones which are a bit of a rarity these days. The type that are immensely satisfying when they slide together like... well a dovetail. The big fat ones that have on a few occasions led to a recurring theme many readers will be familiar with: a floor, a foetal position, a green face, a swift conversion to the nearest available religion in order to allay the creeping certainty that your increasingly laboured insufflations are to be your last, a desperate attempt to retain some semblance of dignity, a rigid repudiation of an almost canonical desire to expel your full stomach content (including the lining) at a velocity close to light speed over the nearest excuse for a threadbare Wilton. For that reason I've decided to eschew the latter in favour of a churchwarden pipe and a forty five pound a day crack habit. I do of course jest. But I do take some considerable enjoyment from a pinch or three of rough Kentucky Nougat shag stuffed almost to overflowing into a polished briar bowl.

But of late it's the aching ones that have insinuated themselves into the everyday. Despite being rather irksome, these I can deal with utilising the oft-used traditional remedy of swearing. Or should I say I did, as my right foot's this week taken out a grievance against my mouth and my jaw's been suspended pending a disciplinary investigation. This is of course silly. But on a more serious note - and I hope this article can help others in a similar situation avoid pitfalls - it deals with a novel type of joint that has inculcated itself into my routine far more insidiously than the odd appalling rheumatic twinge in a right hallux. I have unwittingly become habituĂ© to another abhorrency, a type of joint that is I believe peculiar to either Employment Tribunals (or possibly other matters of a legal nature). The particular joint to which I refer is in some circles known as the 'Joint Bundle'. A definition and an explanation is in order.

The new kid in town

For those new to this blog, I am currently taking my former employer - the University of Salford - to an employment tribunal for unfair dismissal. I lectured in International Studies and was the branch secretary for the UCU. I was dismissed in 2009 for allegedly bullying and harassing two members of staff through writing satirical exposes based on the former VC's monthly electronic newsletter. This is the general context. 

Back to matters in hand. The 'joint bundle' for an Employment Tribunal (ET) consists of all the documents that both parties wish to be entered as evidence. As the employer most usually has the resources available, it is expected that they will collate all documents and order them date-wise into the bundle which is then provided to both parties as well as one each for the three Tribunal panel members. In order to ensure that this is achieved in a timely fashion, Case Management Orders are provided by the Tribunal which must be rigidly adhered to on pain of circumcision. I jest with ye further. Breaching the deadlines within CMO's will largely leave one's foreskin intact but can be punished by a not inconsiderable fine and possible forfeit of your claim. For anyone who is moderately organised, this all seems reasonable and easily manageable... or so it should be. As one might expect, an Employment Tribunal and all the concomitant preparations is a highly charged affair and as such, the joint bundle is a highly contested arena as is the issue of document disclosure.

That absurdity of a beard'll not get ye past us. Begone ye fecker!
Document disclosure or lack thereof

One can almost taste the next salty statement issuing forth from your collective lips - how does one know all the documents available have been disclosed by the employer? Well the short answer is that one doesn't. An example may enlighten. There is no provision in the University of Salford Disciplinary Procedure for disclosure of documents which by any stretch of the imagination places any alleged miscreant at a distinct disadvantage. The Procedure at 3.1.5. states that 'members of staff have a right to':

be treated fairly and consistently. This includes representation, the right of appeal, and the right to be provided with all the evidence and relevant documentation prior to attending a disciplinary hearing.(1)

The sting in the tail here is the word 'relevant'. And who decides what's relevant? Hazard a guess. Clearly, an allegation of bullying and harassment is a serious matter so there is one document that should be disclosed to you. It's called the complaint.

Where is the complaint?

Only an unreconstructed dolt would welcome the idea of being treated unfairly and inconsistently. But it is entirely within the realms of possibility that one can be treated consistently yet unfairly. The two are not necessarily correlates. To elucidate. Let's explore a hypothetical case such as my own.* 

You've been accused of bullying or harassing two people by writing about them in a satirical manner. Yet the alleged 'victims' of the bullying or harassment haven't made any complaint against you. There's no record of any complaint. Neither have they made a witness statement to HR regarding the alleged bullying or harassment. It seems that no one on the employers' side has thought it necessary to invite the alleged 'victim[s]' to an informal or formal meeting to discuss the alleged bullying. No note of such meeting exists. Indeed so important is this issue of alleged bullying and harassing that the investigating manager doesn't think it's necessary to interview the two 'victims' or take statements from them.

And just to reassure you that you've not been engulfed by a particularly malevolent universal parallelogram, the non-existence of any complaint has been confirmed from the horses mouth so to speak. Both the Chair of the Disciplinary Panel Mr Philip Hopwood and the former executive director of finance Mr Simon Attwell (the chap who chaired this writer's appeal hearing against dismissal) admitted under the withering cross examinatory skills of the 'persistent' Mr Eric Longley during last week's Employment Tribunal, that there were indeed no complaints. You see it's all very consistent.

It's in the Code

The UoS Code of Practice for Dealing with Harassment and Bullying is quite clear on this matter:

"... complainants must understand and accept that copies of all notes and correspondence concerned with the complaint will be given to the alleged harasser at his/her request."

It goes on to say that:

Formal resolution may be pursued where the individual regards attempts at informal resolution as inappropriate, or informal attempts to resolve the matter have been unsuccessful. The formal complaint should be made in writing to the Head of School... [i]t must be understood by the complainant that any such formal complaint, and any further written communications will be passed to the alleged harasser... [o]nce an individual has made a formal complaint he/she is entitled to expect managers to instigate a formal investigation... [n]o further action will be taken without the consent of the individual concerned. The matter will be dealt with as confidentially as possible but in some cases the allegation may be so serious as to require immediate action (such as invoking the Disciplinary Procedure or involving the police)...(2)

Where are the witnesses?

So you decide that as no verbal or written complaint has been forthcoming as per the University's own Code, nor a witness statement provided to you laying out any complaint, it's reasonable enough to take the initiative and ask the alleged 'victim[s]' to testify at your forthcoming disciplinary hearing to explain how they were bullied and harassed. They refuse. You've also written in a satirical manner about two Vice Chancellors so you invite them to give evidence as to how they've been bullied and harassed but oddly enough they also refuse. They didn't make a complaint either but clearly a lack of complaint is no barrier to being designated a bully and harasser despite what the employer's own rules say. You attempt to follow this thread of Carrollian logic to its denouement but you immediately conclude that maybe you should exchange the daily crack habit for the more mundane and profitable pastures of an extended LSD induced feedback loop.

My dear chap, like your arse, you'll find the document referred
to down there in two parts
Au revoir jus-naturale?

Now except in the realms of a piece of fiction written by a chap called Kafka, one might imagine it might be quite difficult building the meanest sort of defense against allegations of bullying and harassment where complaints do not exist. By any sense of what's known in the trade as fairness or 'natural justice', a reasonable person might have discerned in the distance the muted peal of an alarm bell or two or at least the cordite stench of a latent structural paradox in crisis. Given this elemental Gordiana, you find that inevitably, the bony finger of unemployment beckons.

Dear Dr... I'm afraid it's irrelevant... irrelevant... irrelevant...

If one is experiencing this kind of difficulty in the run up to and during a disciplinary hearing, it follows that once lawyers are involved (on their side as one is hardly in a position to afford legal representation) the job becomes incrementally arduous. The alleged perpetrator of vileness (the Conscientious Claimant) wants to collate as much documentary evidence as possible but the employer is under no obligation to make documents (other than those used in the disciplinary process) available. One can seek through the Tribunal a Document Disclosure Order but they're about as likely to be granted as a back-dated UN resolution for the invasion of Iraq.

You could elect to utilise the Freedom of Information Act which is an essential tool. It's also largely useless tool. If one's employer is a public authority, they can refuse any of your FOIs on the grounds of say vexatiousness and like a brown immovable thing covered in bark, one is largely stumped. However, there is a small hint of daylight in this crepuscular envelope. It's known as a Subject Access Request which resides under the glorious aegis of the Data Protection Act 1998. I've had occasion to make two SARs and some very interesting documentation and emails have come to the fore.

It's not uphill but it is a shitty job all the same
Even if you manage to lay your hands on the documents through friends and the odd voluntary disclosure of a ream of emails by some unknown individual, there now ensues a battle for relevancy. You receive documents under the Data Protection Act and some are shall we say discommodious to say the least. Like an over-extended ball-bag, this leads to much toing and froing. Even within the Tribunal  this contestation continues. The Conscientious Claimant says that the extensive series of emails between the above two members of staff that were received anonymously, do indeed indicate a close friendship and should therefore go in your 'unagreed' bundle. The Respondent's barrister say they're not relevant and objects to the Tribunal judge a little too successfully. The Conscientious Claimant asks that a recently received copy of a rather interesting report into appointments in a business school should go in. The Respondent's lawyers again oppose its inclusion again stating it's not relevant. Yep, that one's also ruled out. You think this rather odd as you'd sort of mentioned both these issues in a highly satirical publication or two, which played no small part in raising the two issues to the fore in the first place.

Praise be and hallelujah... hallelujah... hallelujah!

Some days it appears that not much is going your way. But, having rejected the notion that the world is going to end next year, I also wish to avoid diving headlong into the perfidious waters of conspiracy theorem. Besides, I now have a lovely crisp copy of the TCM Executive Summary and interesting reading it makes too. An associate but not someone who is involved in any perceived wider campaign with my good self, has decided to put it online so you too can read it by clicking just here. In closing, I'd like to thank Chris Sheehy for providing us with access to the TCM Executive Summary.

If anyone would like to provide me with a copy of the full TCM Group Report you can email it to me at


    * For the avoidance of doubt it's not really hypothetical case but a real one.
    (1) University of Salford  Disciplinary Procedure, Revision Date, 12 May 2008
    (2)University of Salford Code of Practice for Dealing with Harassment and Bullying (ref: Harassment and BullyingcodeofPractice/29.01.04

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    Monday, 7 March 2011

    The sham nature of a disciplinary hearing

    It's self-evident that he has the potential to produce satirical writings and annoy those
    in positions of power... therefore with reference to the laws of Soderic, his
    facial hair can never be permitted to freely associate on our grounds
    As readers may be aware, last week saw the first two days of the eagerly awaited Employment Tribunal into this writer's claim for unfair dismissal. Given the body of documentary evidence submitted, it has now been adjourned for a three day hearing beginning 15th August 2011. Two University of Salford witnesses - Mr Philip Hopwood and Mr Simon Attwell - gave evidence and some very interesting issues emerged which will be forensically examined over the coming weeks. Firstly a brief chronology might assist us in our deliberations.

    The ology of Chronos

    April 29 2009 - GPD elected branch secretary UCU Salford
    May 18 2009 - GPD suspended as part-time lecturer
    May 23 2009 - First disciplinary investigation
    June 10 2009 - Second disciplinary investigation
    August 4 2009 - Disciplinary Hearing
    August 6 2009 - GPD summarily dismissed

    A cursory glance at the timeline might suggest that all is above board. Yet one or two anomalies emerged in the course of Mr Hopwood's testimony that proved... well intriguing to say the least. A little background might serve to enlighten.

    All above board

    In January 2011, as I've mentioned before, I was in receipt of a large number of documents which were provided under a Subject Access Request (DPA 1998) procured in mid November 2010. One among many caught my attention. It was a simple document that contained two press statements prepared by the University prior to last September's postponed Employment Tribunal. It went under the heading 'Gary Duke tribunal standby statements':

    To be used if the case goes in the University's favour:"The University is satisfied with the result of the tribunal and would now like to focus on the future and, as always, to delivering excellent service to our staff, students and partners."

    ln the event that the University loses:"The University is disappointed with the result of the tribunal and plans to fully consider the verdict before taking a view on how to proceed."

    This is of course good practice. It demonstrates that the UoS and senior managers are even-handed, judicious and prudent doesn't it? Mr Hopwood in giving evidence concurred. For those who remember, my suspension and sacking was quite high profile both locally and nationally for a variety of reasons all of which I'll be delving into over the coming weeks. I have my own views on the legitimacy of my disciplinary hearing. I've always maintained that its outcome was a foregone conclusion. But you'd expect me to say that wouldn't you?

    Nevertheless, it's one of the principal reasons for taking this to an employment tribunal. Yet despite my ongoing scepticism, Mr Hopwood assured the Tribunal that proceedings were fair and that no one could know the outcome of the hearing prior to the panel's decision being announced. I breathed a sigh of relief increasingly happy in the knowledge that the decision of the disciplinary panel could only have been arrived at during and after proper process, careful deliberation and proper consideration of all the evidence and any other substantive factors. As if to affirm this perspective, Mr Hopwood stated that they were under "no pressure to come to a decision". According to Mr Hopwood, it took the panel around two hours (2 hours) to ruminate, deliberate and adjudicate. ACAS has a considered view on this:

    Adjournment before decision 52: Adjourn before a decision is taken about whether a disciplinary penalty is appropriate. This allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is any dispute over facts.(1)

    Despite severe arse-burn, his Petard has been successfully hoisted
    Timeline -v- Timescale

    Mr Hopwood was also very clear when he stated that there was a "timeline not a timetable"for progressing the hearing and the decision making process. Again all good and proper. However, a piece of documentary evidence was brought to the attention of the Tribunal which cast considerable doubt over the veracity of Mr Hopwood's assurances. The piece of evidence was an email.

    Dear Martin...

    This origin of this email was a freelance public relations chap known as Edward Rowan. He was brought in by the University to deal with press issues around the time of my suspension and dismissal. It was sent to Vice Chancellor Martin Hall dated 31st July 2009. Under 'Subject' it said 'Email as discussed - OFF THE RECORD' and it went something exactly like this:


    The email exchange below is for information. I've copied it to Adrian and Keith Watkinson.

    The current timeline for next week, agreed with Keith, is that the Disciplinary Hearing will be held Tuesday 4 Aug, their decision will be announced face-to-face, in person on Thursday 6 Aug in the afternoon. I will then immediately brief my media contacts off the record. We will then distribute the news release to all media.

    I have produced a draft news release (attached) which is now with Keith for his consideration and submission to the University's legal advisor.(2)

    I plan to meet with Catherine Cairncross on Monday to finalise arrangements with the University Press Office

    Regards Ed.

    If you float you're up the road, if you drown we'll renew your contract!

    A job thoroughly well done

    Ordinarily, this email might not normally draw a second glance. But on closer inspection provocative questions begin to spring forth like militant Siphonaptera in a state-owned flea circus run by the tyrannical Colonel Gadfly. Readers might wish to reflect on the date. Like me, many of you might be asking how Mr Rowan, Vice Chancellor Hall and the Registrar Dr Adrian Graves could know precisely four days before the Disciplinary Hearing what the outcome was going to be? How could they know four days before that the decision would be reached and transmitted to me on the 6th August? And indeed it was. How could they know that I was going to be dismissed?

    Oddly Mr Rowan hadn't prepared two statements in case any decision went my way. Why? It's not beyond the realms of fantasy in fair proceedings that one might have received a good telling off, a metaphorical slap on the back of the hands from the Disciplinary Panel with an accompanying final written warning.

    It seems that neither Hall nor Graves, the two most senior officers within the University, had asked for Rowan to prepare a second press release. Shouldn't Watkinson as head of HR have flagged this up given his training? Rowan did send it to him after all for his "consideration". Didn't the University's legal advisors who must specialise in Employment Law, suggest to Watkinson and Rowan that they knock together a second press release just to be on the safe side?

    I've given the University every opportunity to provide all documentation under two Subject Access Requests including the missing second statement and countless letters to Matthew Stephenson and the University lawyers reminding them of their obligations under the law. Indeed Vice Chancellor Hall wrote to me personally a few days before the ET and assured me that the University had now supplied me with all the documentation I was entitled to under the Data Protection Act. So I now have everything according to Hall! Oh... and before you ask, he didn't send any second press release.

    Oh the specificity of it all...

    I've read and re-read Mr Rowan's carefully drafted email to Hall... 'I have produced a draft news release...' Yes it's clear. He means there's only one. But as the Tribunal heard there is a very good reason for this and it was a simple but instructive point made by Mr Longley who is representing my good self. The reason why the University prepared two statements for the Employment Tribunal and only one for the Disciplinary Hearing was that they can exert no direct control over the decision of the Employment Tribunal. It is a different matter when it comes to their own disciplinary processes and disciplinary actions.

    Below is the draft press release. It seems that Mr Rowan couldn't even get my age right nor the allegations made against me by the University not that I mind having a few years knocked off my age!


    (1) Discipline and grievances at work: The Acas guide, sourced at


    It is University policy not to comment on disciplinary matters concerning its staff but given these matters have already been reported in the press as a consequence of the actions of others it is incumbent upon us to comment to your enquiry. A part-time lecturer at the University of Salford has been dismissed from his post after admitting that he was the author of several newsletters defaming a number of his colleagues.

    He is 38 years old Gary Duke and his dismissal followed a disciplinary hearing at which he acknowledged that he had anonymously published a series of newsletters containing malicious and personally damaging defamatory racist and sexist (not included in the disciplinary & subject to grievance so not sure we should use these words)remarks concerning fellow colleagues.
    The disciplinary panel heard that the female lecturer who was the target of Mr Duke's remarks is extremely distressed by his comments.
    A spokesperson for the University said "Mr Duke has been dismissed from the University's employment owing to alleagtions that amount to gross misconduct."