An appeal, Mr Justice Eady and the obvious benefits of Betamax over VHS

Just to prove that a certain chap of some facial discomfiture has not been making this up for the last (nearly) three years,  the die has inexorably been cast. At 10:30 am on Monday 28th January 2013, in Court 13 in the Court of Appeal itself within the Royal Courts of Justice, a whisker-sodden sc'undrel's appeal is being heard before the esteemed Mr Justice Eady. 

Is there a public interest?

The overriding argument behind this appeal is to invite the Court to decide that there is no public interest in allowing a public authority such as a state funded university to sue in defamation, in this case libel. Readers may recall the Derbyshire Principle. Should a public authority be able to sue for libel? I've argued in court that it's a tad hostile to something known in the freedoms trade as 'freedom of expression'. How much? Well get your foot rules out and measure this: the Rat Catchers of the Sewers website has been unavailable to the public because of this claim since April/May 2010. Nope... no injunction has been served on this tweed-wearer so far. It's been achieved through a simple mechanism known among the libel fraternity as the 'chilling effect'. It's rather effective. Let's look at a hypothetical ramification if a university as a public authority is allowed to sue in defamation.

Hypothetical Ramification #5 - it's not on the White Album

You are an employee of a public authority. This public authority has itself published surveys that show senior managers are responsible for significant levels of staff bullying and what a reasonable person might describe as extraordinary levels of harassment. You're a rep in your trade union and decide to speak out about your own experiences and the experiences of members of your union. You decide to raise them at a forthcoming lunchtime public union meeting. You read in the press that your employer - the public authority - has decided to sue one of your members for libel. You shiver.

A much-valued Sony Betamax in happier days,
taking in some much needed Vitamin D

Legal representation - open to everyone regardless of ability to pay

Now you're a principled person. You want to do right by your members. Yet there's a problem. You can't get Legal Aid for defending against defamation claims. So you decide to lodge your pride and joy - a 1982 technically superior Betamax video cassette recorder (with an unaligned but recently degaussed playback/record head) with your local 'Your Stuff to Cash Transformer'.  You receive an almost kingly ransom of £12.30 and wonder why staff are pissing themselves in paroxysms as you leave the 'shop'. After checking over the health of your current account through the wizardry of modern online banking techniques, you decide that as your overdraft doesn't extend to several hundreds of thousands of pounds for lining the pockets of the legal profession, you might be better served keeping your gob shut and not standing for re-election next year as union rep. It's an employer's dream strategy and it's only gone and ruddy well worked. Soon word gets round, and across the country the fear sets in. Everyone's terrified that there might be a management stooge in their union meetings with a concealed digital voice recorder. Collectively they shudder at the thought of that Pre-Action Protocol dropping through their letter boxes.

Back to the events of tomorrow

Deputy Vice Chancellor Graves and Professor Hall have for this appeal, decided to secure the services of  Counsel in the shape of one Mr Justin Rushbrooke. I'm told he's very good indeed. I wonder how much his services are costing? It's likely that former Chair of Audit for Salford University governing council Ian Austin will be there in his legal capacity representing the University. I wonder how much his services have cost so far throughout this whole process?

I as usual, will be representing myself.

Notes and Resources

Before considering taking legal action in the form of a libel claim, all the above has been asserted in open court, so there!

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 garypaulduke@gmail.com

Like the boney finger of Father Time, the boney finger of the Court of Appeal beckons...

The end of the world is nigh year is almost upon us. Once more we've managed in our usual inebriated and haphazard way, to stagger on for yet one more year. By our reckoning, Vagrants has now been publishing for a full two and one half years. One could almost liken our struggle to remain in the ether-web to that of the mythical Titans who merely struggled to elevate themselves from the stormy shite-pits of Tartarus all in the name of self improvement, but that would be silly. A hurdle or two has been placed before us since the inception of this website in June 2010. Our overriding objective so to speak - since the first letter arrived courtesy of one Ian Austin in March 2010, has been to defend ourselves against allegations of libel, ultimately brought by the venerable Vice Chancellor of the University of Salford Martin Hall, and the other one, who according to them, when acting in their professional capacities are the University of Salford.

Lex Parsomoniae

The irony of the bringing of this claim by Hall and Graves in the name of the University of Salford is unlikely to have been lost on our regulars. You see during this time and in our own peculiar manner, as well as bringing you tales of regular park-bench merry-making, we've also demonstrated that certain senior types at the University of Salford are not at all shy when it comes to either encouraging senior managers to author and distribute rather widely the odd defamatory statement or two against a chap of no fixed salary, when it suits, or making up serious and untrue allegations of criminal impropriety against a heinously whiskered chap of some Christmas face. Two particular examples shine out which we've covered extensively in a previous posting (see 'Sisyphus Shitae and the Labours of Hyperbole').

The Court of Appeal and the Derbyshire Principle

Well, it appears that after a very long and tedious gambol through the libel courts, one particular member of our slightly-soiled fraternity (me) has been granted his day in the Court of Appeal in the Royal Courts of Justice in London on the 28th January 2013. It's a date some of you might want to insert into your yet to be despoiled 2013 diaries. It's worth noting that I'm perfectly happy for this matter to go to full trial. I'd relish the prospect of airing some University of Salford laundry in the High Court. But this appeal has been lodged because it is premised on one or two rather important issues, matters of which the press really should take some notice. For example, I will be asking the Court of Appeal to reassert the 'Derbyshire Principle', a vital piece of case law that restricts the right of public authorities and public bodies to sue in libel. It's something we've argued at length in front of one or two District Judges and its a legal principle that appears to be lost on Messrs Hall and Graves who manage what they themselves describe as a 'public authority' (see previous posting 'This public authority walks into a bar...').

Freedom of Speech

But in initiating these proceedings, Professor Hall has raised matters that I've felt obliged to raise in open court - namely his 'infringements of my human rights'. Two to be precise: my right to exercise 'freedom of speech' and in the final analysis, my right to a fair trial which comes under Article six of the Human Rights Act which revolves around matters such as the noticeable 'inequality of arms' as Hall and Graves have access to considerable financial resources (University funds) upon which to draw to prosecute their claim.

This should be of some interest to every academic and academic-related member of staff across the country. Why? Well academics and academic related staff throughout the UK in our public universities should be able to openly comment upon the manner in which their University is managed and run. Yet academics are being targeted for doing just that. It's recently reported that Professor Ian Parker at Manchester Metropolitan University has been suspended for speaking out against recruitment policies, a process I myself was exposed to. University employers might wish to avail themselves of current European case law on such matters as it's well established in European law in Sorguc V Turkey 2010 that '... the Court underlines the importance of academic freedom, which comprises the academics' freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction...'. 

Freedom from legal funding

The real shame throughout this whole process, is that as Legal Aid is not available to defend against libel claims, I've had to fight this case without any legal assistance from my own union the UCU. In truth, as well as not being able to avail myself of top legal advisers, I'm also not able to avail myself of tuppence to rub t'gether. Unlike the University who have a top defamation lawyer in top commercial litigator Ian Austin to act upon their instructions, I have no lawyer, no barrister. On the 28th January, I shall be representing myself as I have throughout this libel case. I'm deeply indebted to the kindness and advice of many people who have provided the best advice and huge amounts of support, and in particular two individuals who know who they are, who have advised and have helped steel me in times of real adversity.

A reluctance to underestimate the importance and why...

Yet this isn't just about fighting for the rights of academics to criticise the managers who run their universities. It's about resisting and rolling back the forcible insertion of market-driven managerialism into our public university system. Universities are not like flotsam, cast adrift and battered on the sea of global economic uncertainty. If that were the case, as some Vice Chancellors seem to suggest, then why have Strategic Management Teams? In the real world, specific decisions are made by specific people, often highly paid human beings individuals or groups of individuals, decisions which frequently translate into mass job cuts, worsening conditions for staff and an increasingly negative experience for increased fees paying students.

But it's going to be a benchmark case for a singular reason. It's about fighting for the principle that every taxpayer and citizen should of right be able to speak out publicly against the highly paid officials, paid from the public purse, who run our public universities, public authorities and other public bodies, without the fear of a libel claim landing on their door mat. To use an analogy: we resist the the chilling effect of winter by lighting fires. In order to fight against the chilling effect of a libel claim, we need to light a bigger fire.

La Lutte Continue!

Oh... and a happy New Year to you all!

Notes and Resources

1)  See page 31 of the ET's Reserved Judgement

Before considering taking legal action in the form of a libel claim, all the above has been asserted in open court, so there!

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 garypaulduke@gmail.com

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

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 garypaulduke@gmail.com