Monday, 26 November 2012

Style over Substance

I'm a third cousin twice removed of a chap called 'mouth aghast'. I'm rarely lost for words. But I received an email a couple of weeks back which caused a degree of slack-jawedness not seen since the release of Deliverance in 1972. For those new to this blog, this matter centres on the case of one Dr Gary Paul Duke who is the recipient of a libel claim which is being pursued by the Vice Chancellor of the University of Salford Professor Martin Hall and his subordinate Registrar Graves under the name of the University of Salford.

Regular readers will know that like an unshuttered silicone-based visual extramural augmenter in a strongish New York wind, I've rattled on to some fine tune about the University of Salford's Particulars of Claim. It's a pressing concern premised on a series of fundamentary* issues. One in particular hopped of the page, assaulting a chap's common senses.

The rudimental

Now I'm sure I've raised this on more than one occasion both in this blog and in the libel courts. I've been assured that it's customary practice in libel claims, that the exact words alleged to be defamatory of a claimant, to the very last full stop, be included in the Particulars of Claim. There's a very good reason for this. The words as well as being the 'meat' of the alleged tort (the libel), are of course the basis for the defendant's defence. They are the facts in the matter. On page 652 of the ninth edition of Gatley on Libel and Slander, it states:

"Where 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...He must in his pleading set out the word 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 O.C.D.. of law

The above quote suggests that this chap the law is a rather pedantic fellow. When he says '[t]he law requires...' it sort of means... well... it's required BY LAW. Now I'm many things. But being 'unthorough' in such matters is rarely one of them. I've been likened to our old friend Naucrates ductor on more than one occasion. Like my coral-dwelling compatriot monsieur cheval marin, once I've got the bit between my teeth, I tend not to let go.

Ductor Naucrates PhD

I've fairly asked on more than one occasion, that the University reparticularise their claim. It's a decent enough request. You see I need to be able to answer to the allegations against me. And I know one shouldn't begin a sentence with 'and', but in order to do this I need to produce a fullish defence. So logically I need all the words relied upon, not a reference to an annex that includes thousands of words (including thousands of words not alleged to be defamatory) culled from the deeply investigative Rat Catcher of the Sewers blog, which it seems have been pegged onto these Particulars.**

An lawyer

The Reasonable Man

I'm always interested in what a reasonable person might think. If this person were prone to slipping into the odd metaphor or two, he might think that so full of holes are these particulars of claim, that if they were a square of tissue de toilette, that he'd likely gain an excess of rect-O-fauna over his freshly starched cuffs. Oh Lord! how I've endeavoured to make it reasonably clear to the lawyer acting for Vice Chancellor Hall and his underling Graves (who when acting in their professional capacities it is claimed are therefore the University of Salford), that the Particulars of Claim that carry the esteemed Hall's signature are far from complete. I worry about them - the Particulars that is. After all, this is going to be heard in the  Court of Appeal. The Court of Appeal is a tad 'big time'.

Few would accuse me of shying away from sharing an opinion. And my opinion is that if I'd produced them, I'd be fearful that a legion of pre-Reformation paid jovials, hired for the occasion, would snigger at them from a quiet corner of  the public gallery in the Queen's Bench. And this would in all likelihood detract from my piss-poor attempt at a deeply serious courtroom 'vox magister'.***

Skeletons and closets

At the last hearing in front of senior judge, the Honourable Mr Justice Bean, the matter of the University's statement of case came up.  Mr Justice Bean asked the University to provide a Skeleton argument to address the matter of why all or part of the University's claim should not be 'struck out on the principle established in Jameel v Dow Jones(1) or any other reason.' Christmas presents rarely come early. Particularly the one's you want. I particularly liked the '..or any other reason' bit.

From the fusty top shelf of my overstuffed personal credit-card funded libel closet, in my eagerness did I crouch daily-nightly. I awaited the imminent arrival of the University's response, often with only an ill-adjusted distended left knacker for companion. It wasn't much in the way of company. The copper telephonic wires that spanned several greasy, vomit-ridden ginnels (which I'm told by Sylvia with the prolapse, also doubles on occasion as a unitary bird-shitter), for weeks thrummed with semi-diabolical theoratum. It was as if someone had shifted the Kennedy conspiracy into reverse: where the fatal bullet had instead emanated from an arsey troll. Yes I, and a cohort of unreconstructed specialist well-wishers sought to second guess the precise character of the devastating riposte that would any day be winging its way to my letterbox. Why devastating? Well the initiators of this claim lodged in the name of the University of Salford - Hall and Graves - have after all secured the services of a lawyer of some distinction. Yes, I refer to Ian Austin. They also have counsel. Inwardly, I thought 'it's bound to be good'.

A bit deflated

As a rule, unlike my bowels, my hysteria is rarely unregulated. Unlike my local family practitioner, I've not yet been able to establish a convincing link to the infrequent yet annoying pangs of gout, the odd twinge in an otherwise over active urinary tract, the recent additions to my right palm, and a hellish reliance on high-octane 'purple juice'. Some have suggested removing my mobile phone from my front 'Hampton-holder'. It does get a bit warm. But as those who've experienced exceptions to the rule will know, there are always exceptions. And one such candidate appeared via my email inbox on the 19th October 2012 courtesy of lawyer Austin's office. It was the billy-bones of a skelington argument. It was quite long. The bit that raised a smile came right at the end in paragraph 20. It was very short, consisting of a mere few lines. It dealt with my concerns regarding the POC. Well actually it didn't.

An example of styli over substance?

I firstly considered scaling it but couldn't decide on whether to place 'serious' at one end and 'shite-ing thy pantalons with Chaucerian laughter' at the other. What could be construed as 'obvious' to the serious internal-framework-contestation****  reader was that it contained the word 'averred' twice. It suggested that the lack of full particularisation in the Particulars of Claim (or pleaded case) was simply a matter of 'style over substance' and that the lack of fullness in the pleaded case was necessary because to reproduce the entirety of the blog would be cumbrous. It is, in my opinion, a novel approach to libel law.

An unreasonable man?

Was I being unreasonable I wondered? Yet, the potential got me to thinking which as regular readers of this blog will know, is nearly always a bad thing. Clearly I hadn't asked for those parts of the blog alleged to be defamatory of Hall and Graves and therefore the University, to be reproduced using the finest traditional Assyrian styli laid out precisely in pre-Akkadian cuneiform. Nor was I expecting it to be presented to me through the tried and tested format of a children's pull-out book?  Given that style was trumping substance, I wondered if it was legally possible to get measured like an half decent whistle, for a half decent defence? 

Almost immediately I rejected this a silly. Instead I decided to write to the Honourable Judge Bean asking that the Court grant two witness orders so that the initiators of this libel claim - Hall and Graves - appear at the Court of Appeal hearing so that they may speak to the Particulars of Claim and witness statements that bear their names.

I'd like to hear it from the horses mouths so to speak.

Notes and References

* Hideously concocted by the author merely for effect.
** This blog is currently password protected and not accessible to the public because of  the 'chilling effect' imbued by the University's libel claim. In effect, a public authority (as established in the Freedom of Information Act 2000) I have asserted in the High Court, has interfered with my Convention rights (Article 10 European Convention on Human Right to enjoy freedom of expression without interference from a public authority). Oh dear...
*** 'Teacher's voice'
**** skelington argument

(1)Dow Jones and Co Inc v Jameel [2005] EWCA Civ 75 (03 February 2005, Para 57) hinges on the question of proportionality as enshrined in the Overriding Objective of the Civil Procedure Rules.
(2) Higher Education Funding Council of England

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 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