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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