Friday, 23 March 2012

This public authority walks into a bar...

“You were not there for the beginning. You will not be there for the end.
Your knowledge of what is going on can
only be superficial and relative”
William S. Burroughs, Naked Lunch

It was an interesting hearing. And my reservations about the outcome proved rather sagacious. A chap's application to have the University's claim for libel struck out was rejected by the Court. The application was based on three points of contention:
  • That the statement of case, specifically the particulars of claim provided by the Claimant to the Defendant Dr Duke, discloses no reasonable grounds for bringing the claim, and is an abuse of process,
  • The Claimant's claim has no reasonable prospect of success,
  • The Claimant’s claim is an abuse of the Court’s process and that the Claimant is using that process for a purpose in a way significantly different from its ordinary and proper use.
I also raised the matter of whether a public authority could sue for defamation, which provided the basis for and resulted in an interesting, if not bizarre, piece of courtroom logic.

The Billy Bones of contention

It was my contention that the University's Particulars of Claim (P of C) disclosed no reasonable grounds for bringing the claim. I stated to the Court that the claim might have the University's name on it but the Particulars of Claim indicated that it was Blogger Hall and and his subordinate Graves who were actually bringing the claim and using the University as a front to bring this libel action. I suggested that they were using the University's name in order to indemnify themselves against costs and any negative publicity if their libel claim failed. I also argued that the Particulars of Claim disclosed no (alleged) reputational damage to the University, and that the Particulars had been framed in such a way as to purposefully conflate the reputation of the Graves and Blogger Hall with that of the University. It seemed rather obvious to even the most reasonable type with a keen eye for detail, that the reputation of a Hall or a Graves was a distinct and separate entity from the reputation of a University. Given past hearings, I thought it might be wise to provide a couple of examples to the Court underscore my arguments.

Alain Sucre... "you're sued!"

Distinct entities - not a Trekkie convention in Colorado

When Alan Sugar sued the Daily Mail for an article that branded him 'miserly' as Chairman of Tottenham Hotspur FC, it was Sugar who did the suing to defend his reputation, not Spurs to defend theirs. Similarly, it was Richard Branson who sued US lottery firm G-Tech in order to defend his reputation when he was accused of being a 'liar' and not Virgin Atlantic Airways to defend their corporate reputation. It demonstrated that an alleged libel against the head of a large commercial institution - the public face of that institution - did not amount to a defamation of the organisation and damage to the reputation of the organisation. It seems a bit obvious even to the most denigrated chump.

You can't take it with you... or can you?

I raised the matter of the 2005 Gus John Report which highlighted a culture of bullying among managers at the University of Salford, and the later 2008-09 GEM Report that showed that the University had failed to address many of the issues raised in Professor John's report. That the former Vice Chancellor Michael Harloe had allowed this critical report to be published online, did this therefore mean that Harloe had damaged the reputation of the University? Not one for not labouring a point, I also asked that if the reputation of this institution and the reputation of a Martin Hall are one and the same, when Hall decides to leave the University, would he be taking the University's reputation with him? It's clearly a silly proposition isn't it?

When he goes, can he take it with him?

A distinct lack of accord

The University's barrister didn't agree for obvious reasons. And nor did the Judge, who to be fair is a District Judge. Eschewing tradition and the widely accepted principle of informing a decision by citing something known in the trade as a 'legal authority', our latter day Solomon ruled that there was a 'nexus' between the reputation of a senior manager and the reputation of the University: that to publish a comment that is arguably defamatory of two senior employees of a University (in their professional role) and of the University's Executive Committee, amounts to publishing comments that are arguably defamatory of the institution that employs them.

There's a sort of perverse yet logical antipodal to this. Is it therefore the case that if one defames an Institution, one automatically defames a senior manager or a cluck of senior managers and yes... you've got it... the entire payroll staff of the Institution. I mean if anyone is the public face of a university it's the lecturers. It is they after all who are confronted by many thousands of students on a daily basis. It's Ying and it's Yang.

Is it illogical Captain?

Yes, you may be conjuring up a similar string theory dichotomy as we collectively perceive an horribly corrupted Vulcan mind-melder with weeping piles. He's mid-flow, and he's not smiling. And he's worked his finger-magic on some poor fuckwit in a business school in some far off distant galaxy. Despite his vinegary temperament he's pleased because he's finally managed to convince our dupe that a new rectal evacuator situated adjacent to the new absolutely necessary holo-meeting room is actually the embodiment of a depilated huntus majoris.

Graves - despite being Salford's FOI 
Champion, he doesn't work for
a public authority

When is a public authority not a public authority?

We also argued that the University was perceived by those in legal circles as something akin to a Publicus Authoritus.* Oddly enough, public universities are also widely perceived by Parliament as public authorities. Even the Information Commissioner thinks they are. I also thought it germane to state in court that Hall and Graves, as employees of a public authority, were therefore public officials and as public officials, should be open to public scrutiny. Indeed I emphasised the point that as public officials employed by a public authority, they should be encouraging more public scrutiny, not less. It seemed entirely bizarre then that the barrister employed by the University would argue that it wasn't a public authority because unlike a local council, it wasn't elected. I'm not sure if he'd bothered to consult the University's own website which states:

'As a public authority, the University of Salford is obliged to meet the requirements of the Freedom of Information Act.'(1)

What the frig does locus standi mean?

But attention to this sort of detail is something that's been conspicuous by it non-inclusion in this whole affair from day one. Far be it for me to argue with the University over how it describes itself publicly and conforms to the law. And I would never be so bold as to argue with a set of law-makers known colloquially as 'Parliament' over such matters of import. But surely, if the law recognises a public university as a 'public authority' then there must be something in it? It was worth persisting with I thought, and to prove the point - that as a Publicus Authoritus the University of Salford has no locus standi to sue for defamation - I brought along one or two legal authorities. I handed them to the District Judge. The first is extremely well known: Derbyshire County Council v Times Newspapers Ltd and Others [1993] AC 534 and the second McLaughlin and others -v- London Borough of Lambeth and Khan [2010] EWHC 2726 (QB). Both cases are explained in more digestible terms here.

Barristers - no flies on them...

To bolster the argument that it wasn't a public authority, the University's barrister argued that the University was more akin to a commercial enterprise, increasingly dependent for its income on student fees rather than government funding or HEFCE grants. It was this that largely determined its status and proved therefore that it was not a public authority. In this schematic it would appear that the legal status of an public authority is fluid and not determined by law but by a set of variable economic factors. One wonders where this leaves our dear old local authorities (councils) who operate increasingly in the commercial arena. Does it mean that they are no longer public authorities and can sue in defamation? Council tax payers and citizens beware!

... no flies on Judges either

As luck would have it, the District Judge, without reference to any legal authority (including the two I'd handed to him), decided that a lower court can overrule a higher court or two and ruled that the University wasn't a public authority and therefore could sue for defamation. I wondered if for a moment he considered the public authority status of the UK courts system who also aren't elected?

Dow Jones -v- Jameel [2005]

I also argued that the libel claim was, on the Particulars as they stood, unsustainable and that the costs of the action would far outweigh any damages the Claimant might hope to receive. This is often referred to as a 'Jameel abuse' and goes to proportionality. The precedent in this was Dow Jones and Co Inc v Yousef Abdul Latif Jameel [2005] EWCA Civ 75 para 69. The District Judge rejected this argument for the reason that the claimant (the University) was also seeking injunctive relief (an injunction which the University barrister admitted was the principal reason for taking action, to close down the Rat Catchers blog and to close down Vagrant in the Casual Ward of a Workhouse), and that therefore, the injunction sought could not be separated from the claim and that 'Jameel' could not impinge upon this aspect of the claim. He decided that on this ground, the claim should stand.

Fly type -"Can you re-particularise these for me please and then re-particularise my head?"
Lady - "Sod off"
A lack of precision... 

I was also keen to raise the matter of the specific content of the University's Particulars of Claim. I cited a passage from Gatley on Libel and Slander 9th edition, which states:

'In a libel the words used are the material facts and must therefore be set out verbatim in the statement of claim, preferably in the form of a quotation: it is not enough to describe their substance, purport or effect. The law requires the very words of the libel to be set out in the declaration in order that the court may judge whether they constitute a ground of action. "A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of whose contents he is unaware. He must in his pleading set out the words with reasonable certainty... The court will require him to give particulars so as to ensure that he has a proper case to put before the court and is not merely fishing for one."'

The problem I have with the University's POC is that whoever compiled them has utilised a technique that  a certain Mr W S Burroughs might recognise - I referred to it as a 'cut and paste' approach. What do I mean? It is quite clear that in some sections of the words relied upon to claim a libel has taken place (allegedly of course), that in some places the beginning of one sentence has been pasted to the final part of another sentence. As any academic worth his sod-chlod would know, this sort of practice decontextualises the words. More importantly, it may also drastically alter their meaning. And call me a little picky, but I don't happen to believe its anywhere near good enough. And unlike the Judge who thought I should be applying for further information through Part 18 of the Civil Procedure Rules, I thought it apposite to state that it is not my role in libel proceedings to build the Claimant's case for them. That's the job of Mr Ian Austin and their barrister.

... and a lack of words

I thought it worth drawing the Judge's attention to one particularly deficient section of the Particulars. Here the words alleged to be defamatory hadn't even been included within the Particulars of Claim. Call me a stickler for detail but I thought including the words alleged to be defamatory was central to the bringing of a claim. Barrister Vaughan directed both the Judge and myself to something called the 'Annexe to the Particulars of Claim' which consists of several pages culled from large sections of the Rat Catchers blog. The section he directed us to for those with good memories was entitled 'It's All in the Game'. If I remember correctly there are 3830 words in this particular little gem. It was rather verbose. Among these 3830 words, which did they claim were defamatory? As they hadn't included the words in the POC, I didn't know and nor did the Judge. I thought it worth mentioning to the Judge that as Mr Vaughan had to refer to his annexe, that this in itself was indicative that the Particulars were far from useful to a chap called me in building a decent defence. I asked that even if the Court decided to dismiss my application, that the Judge at least order the University to re-particularise their Particulars of Claim. It seemed a reasonable request. He didn't.

"Human rights.... they are I believe largely overrated"
An attack on a chap's Convention rights

The Judge did seem to perk up when I made reference to something called my 'Convention Rights'. Now Convention Rights for those who couldn't give a shite, are often referred to in disparaging terms in the haemorrhoid press. They'd have us believe we have too many of them and that there's nothing wrong with women bearing their breasts whilst pulling half a ton of coal up from the bowels of the earth. Or that chaps with beards, of Muslim religious persuasion, who might have an accompanying faint whiff of radicalism, should be sent back to prison for not being guilty of anything. It's what made Britain 'GREAT' you see. But the idea of a public authority interfering with a chap's right to freely express himself is quite frowned upon in the European Court of Human Rights located somewhere in Strasbourg which you're all perfectly entitled to read about here:

'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...'(2)

Back home...

The Royal Courts of Justice
So now, because a public authority has trampled on my right to impart information and ideas, and my right to freely express my opinion, the Judge has decided that the whole shebang must now be heard, not in the  comfort zone of the Manchester District Registry, but somewhere a little further South, often referred to within the civil beakery as the Royal Courts of Justice in Londinivm. Yes this is going to be a full-on libel trial and will be heard by some of the most experienced Judges in this field. Putting aside for a moment the fact that I raised many serious matters which in my opinion have far-reaching implications for our human rights and civil liberties - particularly the right to freedom of expression - I feel my application was dismissed rather perfunctorily. The Judge also awarded swingeing costs of £2,800 against me (which I don't have). Nevertheless, the move to London is a definite 'result'.

An appeal is lodged

So this week my application for permission to appeal the District Judge's decision was sent off to the Court of Appeal in London. And given my impecunious state, it's entirely logical that as I don't believe the Judge's decision was correct in law simply because it wasn't based on any legal authority, I don't believe that the costs he awarded against me are just either. So I've asked that these costs be set aside.

I am looking forward to the first round of preliminary hearings in't' smoke' sometime soon. You are of course all welcome to attend.

Notes and References

* Made up and therefore not really Latin but not entirely disimilar in its written form to a 'pubic authority' a person in a white coat who might well study in some depth all manner of issues centring on pubicus hairicus.
(1) University of Salford website entitled 'Information Governance 'Introduction and Basics' sourced at
(2) Article 10, Human Rights Act [1998] which is framed more widely within the European Convention on Human Rights sourced at

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  1. The public interest defence has just been restored via a Court decision. You should use this as the basis to claim privilege.

  2. Your stand against the big beast that once was a state funded University (but now defined by its own legal representative as a self motivated commercial organism) is a worthy stand. Worthy as I would not like my son to go there with liberal/ educational expectations and then, to find he is fed a commercial philosophy and belief system.