Sunday, 7 October 2012

The Locus Eaters

Ebb and flow

An allegedly libellous chap entered court number 45, floor ten of the Manchester Civil Justice Centre on Friday 5th October 2012 a little before midday, expecting little and exited quite excited. The inauguration of this excitement began when senior judge Mr Justice Bean suggested that the statements pleaded by the University (Statement of Case or Particulars of Claim) have Jameel written all over them. A concise interpretation of what is referred to as a 'Jameel abuse' can be garnered here. It was suggested by Mr Justice Bean that there is some discussion to be had as to whether all or part of the University's claim should be struck out on the basis of a Jameel abuse or for other reasons. In this chap's opinion there are many reasons for striking this claim out such as:

  • That the statement of case, specifically the Particulars of Claim provided by the claimant (them) to the defendant (me), disclose 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 that is in a way significantly different from its ordinary and proper use,

The interesting matter of a chap called Locus Standi

The hearing became even more interesting when the judge raised the matter of whether the University could sue in libel (locus standi). As readers of this blog will know, I have up to this point, consistently raised this matter with the courts, it has to be said, to no avail. There are two conjoined strands to this argument. The first goes something like this: as the University is a public authority, it is by way of an important legal precedent, precluded from suing in defamation. This precedent is known as the 'Derbyshire Principle'. 

The University of Salford like most other British universities, is a Higher Education Corporation created by statute specifically to carry out a public function. Like grant-maintained schools, local authorities, the former National Coal Board, and the much lauded former British Rail, the Olympic Delivery Authority, the National Assembly for Wales, Channel Four Television amongst a host of others, the University of Salford is classed as a 'core' public authority. District Judge Richmond and the University have a contrasting view of the University's legal status - that it exists in the wider commercial world and therefore is not like a local authority. Clearly Mr Justice Bean has adopted a more pragmatic view of the University's legal status which in all likelihood corresponds to that given by Lord Keith in a landmark ruling:

"It is of some significance to observe that a number of departments of central government in the United Kingdom are statutorily created corporations, including the Secretaries of State for Defence, Education and Science, Energy, Environment and Social Services. If a local authority can sue for libel there would appear to be no reason in logic for holding that any of these departments (apart from two which are made corporations only for the purpose of holding land) was not also entitled to sue. But as is shown by the decision in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1A.C. 109, a case concerned with confidentiality, there are rights available to private citizens which institutions of central government are not in a position to exercise unless they can show that it is the public interest to do so. The same applies, in my opinion, to local authorities. In both cases I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech. [Derbyshire County Council v The Times Newspapers and Others, [1993] AC 534, [1992] UKHL 6]"

I'm no fan of common sense. I prefer to see Mr Justice Bean's assessment of the University's legal status as corresponding to 'good sense'. After all, if the head teacher and governors at a grant-maintained school are classed as a 'core' public authority, and cannot sue in libel, where then does that leave the Vice Chancellor and Deputy Vice Chancellor and the governing body the University Council (including its members)? It's worth mentioning here that the Derbyshire ruling was a House of Lords decision - IN 1993! It may seem a bit pernickity to point out something called 'chronology' but the legal authority cited by the University's barrister Mr Simon Vaughan, entered to buttress the claim that the University can sue in libel (Hong Kong Polytechnic v Next Magazine Publishing Ltd [1977] HKLRD 514 HKCA) has the date 1977 affix't

Martin Hall: Has he invested tens of thousands of pounds
of University money on a fundamentally 
flawed libel action?
Freedom of speech - a human right?

I'm sure Martin Hall would agree with me that freedom to criticise is a key component of democracy. It does after all underpin our university system. How ironic then that it is an esteemed Vice Chancellor and his subordinate that are pursuing a course of action which is intrinsically hostile to this concept. Without wishing to be labelled 'a churl', it might also be worth mentioning another powerful piece of legislation which came into force IN 1998 one referred to in the judicial trade as the Human Rights Act. There is another known colloquially as the European Convention on Human Rights. Oddly enough, both have something to say on the subject of the right of a 'public authority' to interfere with an individual's Convention rights. Section 6(1) of the Human Rights Act 1998 is quite straight forward:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Simple causation

It's clear that Hall and Graves' libel action raises all manner of incongruities and questions. But I'm sure they fully considered the implications of their actions when they first embarked upon this course? Tiny ripples in a pond etc... And it must be eminently clear to any member of the wider public who wishes to access the Rat Catchers of the Sewers, a website that has consistently raised matters of public interest and concern in what is after all a publicly funded university, that it is clearly no longer accessible to the public. It's effectively been 'chilled' by the issuance of Hall and Graves' libel proceedings. And let us be clear as to what Hall and Graves real intentions are with regard to this libel action. It's about securing an injunction to close down Rat Catchers of the Sewers and to close down this blog, Vagrants in the Casual Ward of a Workhouse for good. I can say this here without fear of retaliation because I've said it in open court earlier in the year. And on this matter, District Judge Richmond agreed with me.

Yet I'm sure many readers of this blog have a keen interest in establishing precisely why Martin Hall and Adrian Graves, who steer an institution that espouses and promotes enlightenment values, a core value of which is the promotion and enhancement of freedom of speech, should embark upon a course of action in the civil courts that in a rather unambiguous manner, tramples underfoot like so much night soil, my Article 10 rights to freedom of speech? I take the be-sodding of my rights rather seriously for it is a serious matter in the eyes of the highest courts... a very serious matter indeed. And rest assured, the restitution of my human right to freedom of expression will not end when these libel proceedings themselves collapse in an ignominious defeat.

Adrian Graves: before launching this libel action, 
did he and Hall run this past University Council, 
did they give them the green light and 
can I have a copy of the minute of this 
meeting and the written authorisation?

The outcome of Friday's hearing

Having taken a crash course in libel law, I am by no means versed in the subtleties of what is inferred when a senior judge calls into question a claimant's statement of case, or for that matter an institution's locus standi (legal standing or right) to sue in libel. A good friend with many years of experience in this matter put Mr Justice Bean's words into perspective: this libel claim is, in Fraserian terms "DOOMED"!

What they wanted.... what they got

They asked for 28 days to provide the court with a copy of its constitution which I take to be the Royal Charter and the accompanying statutes (I could find no evidence of a University of Salford 'consitution' via a quick Google search) and a skeleton argument as to why the University's statement of case should not be struck down either in parts or as a whole as a Jameel abuse. The judge gave them 14 (that's fourteen days) which any person with some knowledge of legal niceties should be able to interpret quite easily.

I eagerly await the skeleton argument that University of Salford's lawyer, libel supremo, Mr Ian Austin who is well versed in such matters as he specialises in commercial litigation, property litigation, contractual disputes and general commercial claims, will be placing before the court. It'll have to be based on compelling legal argument backed by one or two legal precedents that trump Derbyshire and the European Convention on Human Rights. Mr Justice Bean was very clear. If they can't provide a compelling argument as to why this public authority can be viewed as an exception to the rule and can sue in libel, then this very expensive libel case will fall. In many respects, a failure on appeal might be the most humane way of ending this debacle. One wonders how this case would be viewed by a Mr Justice Tugendhat at full trial?

Mr Justice Bean has now directed this matter to the Jury Lists in London. It will be heard in front of the UK's most preeminent defamation judges. In the immortal words of Windsor Davies "oh dear, how sad... never mind"!

Notes and References

Derbyshire County Council -v- The Times Newspapers Ltd and Others [1993] AC 534, [1992] UKHL 6
Jameel (Yousef) v Dow Jones and; Co. Inc. EWCA Civ 75; [2005] QB 946; [2005] 2 WLR 1614; [2005] EMLR 353

'Public Authorities' under the Human Rights Act 1998 sourced at
European Convention on Human Rights sourced at

Usual disclaimer: This work is and expression of opinion on a matter of public interest and contains the opinions of the author. It is intended to report current events that are of public interest and public concern. The reproduction and use of any documents, photos and video images herein is to provide humour and accuracy in order to avoid civil litigation and claims of misquoting. In reporting current events they are used within the context of Fair Dealing or Fair Use. The author is happy to provide further acknowledgement if requested (email below).

The author also suggests that before embarking upon expensive civil actions for libel, contact the author. We have reams of documentary evidence which we are happy to provide. A right of reply also operates. We are also happy to make corrections and if necessary provide an apology. Email


  1. While not wishing to be prematurely congratulatory, I wish, nonetheless to offer my comment of "Well done" to both you and your legal representative.

    This is a very important case, as it potentially sets precedent with respect of the right of a public body, such as a university, to quash free expression, something that I do not believe it has, particularly as it relates to matters of libel against the institution itself, as distinct from its officials.

    Accordingly, when the criticism refers exclusively to their job-related activities, it would seem to reason that such an action of libel ought not be able to be put forward on behalf of the individuals, particularly if paid for with any amount of public funds. Likewise, if the criticisms refer only to private non-work-related activities (which, of course is not the case in this instance), then the university certainly ought not to be able to spend one dime of public funds towards the pursuit of a libel action.

  2. Mot the end, or even the beginning of the end, but hopefully the end of the beginning and all that. Fingers crossed.

    I still want to know the process the University went through in appointing Ian Austin as its lawyer for this action.

    Universities are also public bodies (or, in proper parlance, "contracting authorities") for the purposes of public procurement law, which means they must comply with public procurement law when placing contracts (such as the contract to advise on a libel claim). Even though legal services are known as "Part B services", and therefore not subject to the full rigour of the Public Contracts Regulations, the Treaty for European Union principles still apply - basically, there should have been a fair, open and transparent competition to apppoint Austin, as a matter of law.

    And given that he neither has the expertise to run a libel claim, nor (any longer) works at a firm which would ordinarily be expected to beat off the bigger firms in any such fair, open and transparent competition, it is very hard to draw any conclusion other than that he was inappropriately, and even unlawfully, directly appointed due to his position as Chair of Audit of the University. Occam's razor cuts any other argument to ribbons. Naughty University.