Judgment & Order (Chancery Division) (original) (raw)
Royal Courts of Justice, Strand. London. WC2A 2LL
The Hon Mr Michael Beloff QC and Ms Jane Collier (instructed by Manches, 3 Worcester Street, Oxford, OX1 2PZ) for the Defendants
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
PREAMBLE On 21st January a draft of the judgment was faxed to both sides for them to check for typing slips, gammatical points et cetera. Besides numerous such mistakes, there was one glaring, telling error of fact in the faxed version. In his original paragraph 20 (on the subject of Oxford's obligation to notify Alan Ryan of the terms of Clause 7), Lightman wrote: "Mr Malcolm in his oral submissions referred to a letter headed 'Without prejudice save as to costs' dated 1st July 1992... The status of this letter has not been explored because there is no suggestion in the Particulars of Claim that it gave rise to any obligation..." In fact, as even Oxford's own Counsel had then to point out (22/1), the letter and its obligation were carefully (and correctly) pleaded in both my Particulars of Claim (paragraph 6) and my Witness Statement (paragraph 61). Lightman's mistake, corrected in the final version of his judgment below, suggests that he never properly read my pleadings. - A. M.
1. This is an application by the defendants, the Chancellor, Masters and Scholars of the University of Oxford ("the University") summarily to dismiss the action brought by the Claimant Mr Andrew Malcolm ("Mr Malcolm") against the University. The action and the application turn upon the true construction of a consent order resolving previous disputes arising in an earlier action between the same parties.
2. Mr Malcolm wrote a philosophical work entitled 'Making Names' ("the Work"). Mr Malcolm submitted it to the Oxford University Press ("the OUP"), a department of the University, with a view to the OUP agreeing to publish it. Dr Alan Ryan ("Dr Ryan"), a Fellow of New College Oxford and an OUP Delegate, in two reports dated the 11th February 1985 and the 18th July 1985 made the recommendation to the OUP commissioning editor Mr Henry Hardy ("Mr Hardy") that the OUP publish it. But in February 1986, after the Work had been revised and improved, Dr Ryan changed his mind and recommended that the Work be rejected. The OUP acted on this recommendation. A dispute thereupon arose whether a contract had already been concluded between Mr Malcolm and the University for publication of the Work and whether the rejection constituted a breach of that contract by the University.
3. On the 23rd December 1986 Mr Malcolm commenced an action ("the First Action") against the University seeking a declaration that a contract had been concluded, specific performance of that contract and damages for breach of contract. The University defended the action denying that any contract had been concluded. In early 1987 Dr Ryan left Oxford for Princeton University USA. He did not attend or participate in the trial.
4. The trial proceeded before me in March 1990. In my judgment, whilst I was in all respects sympathetic to Mr Malcolm's case and considered that he had been treated less than fairly by the University, with great reluctance I felt constrained to hold that a contract had not been finally concluded by reason of the absence of agreement of the print-run and the book's format. Mr Malcolm appealed and applied for and obtained permission from the Court of Appeal to adduce expert evidence that the print-run and book's format are not normally specified in such publishing contracts. By a majority of two to one on the 18th December 1990 the Court of Appeal allowed Mr Malcolm's appeal, upheld his claim, refused specific performance but ordered an assessment and payment by the University of damages. The Court urged the parties to reach an out of court settlement. In proceedings for the assessment of damages, on the 15th August 1991 Master Barrett assessed damages at £17,947.13 (of which £6,000 were for Mr Malcolm's loss of opportunity to enhance his reputation by securing the imprimatur of the OUP on his work). On the 19th November 1991 on application by the University Master Barratt ordered a reduction of £502.40 in the damages awarded in respect of the notional income tax deductible from the interest element of the award and that Mr Malcolm pay certain costs. Pending the hearing of appeals and cross appeals from these orders, on the 1st July 1992 the parties entered into a consent order in Tomlin Order form ("the Consent Order").
5. The Consent Order contained three paragraphs in the Schedule to the order material to these proceedings:
6. At the date of the Consent Order Dr Ryan, Mr Hardy and Richard Charkin ("Mr Charkin") had all ceased to be connected with the University: and it was because they were no longer "servants or agents" of the University that provision was expressly made in the third sentence of paragraph 7 of the Consent Order for the University to make the requests there specified of it.
7. In August 1992 Mr Malcolm at his own cost published the Work. On the 1st September 1996 Dr Ryan returned to Oxford to take up the post of Warden of New College and in or about 1997 the University conferred upon him the title of Professor and he was appointed Chairman of the Conference of Oxford Colleges ("the Conference")for a period expiring on the 30th September 1999. He also became a member of a number of University committees. On the 2nd December 1998 Dr Ryan was appointed Director of the Rothermere American Institute ("the Institute") with effect from the 1st January 1999. The Institute is part of the University. As Director of the Institute Dr Ryan was authorised by the University to employ and dismiss staff. Dr Ryan has not been re-appointed an OUP Delegate.
8. On the 13th April 2001, The Times Higher Education Supplement ("the THES") published as its lead letter a letter ("the Letter") from Dr Ryan about the Work. So far as material the Letter read as follows:
"The [Work] wore badly on re-reading; what had seemed fresh, lively and amusing seemed coarse and jeering the third time around. Perhaps the reading climate had changed, perhaps it was always a book that should be read once only. But I never changed my initial view; that OUP should have published a thousand copies and seen if they sold - the press was not poor and a few quid on an outsider was a worthwhile bet...
Alan Ryan, New College Oxford."
9. It is the publication of the first sentence quoted above which prompted Mr Malcolm to commence this action against the University ("the Second Action"). Mr Malcolm maintains that its publication constitutes a breach by the University of paragraph 7 of the Consent Order. Though Mr Malcolm initially instructed solicitors, he has acted in person since the 12th July 2001 on his own behalf (as he did at the trial before me of the First Action). After reciting the facts to which I have referred, Mr Malcolm in paragraph 9 of his Particulars of Claim states (referring to the first sentence quoted above):
"9. These comments from a senior member of the defendants' congregation who was the OUP Delegate centrally involved in the defendants' mishandling of the claimant's book and in the consequent lawsuit, appearing in the country's foremost higher education journal, constitute a serious public derogation of the claimant's work Making Names and a clear breach of Clause 7 of the claimant's settlement agreement with the defendants of 1st July 1992, whereby the claimant has suffered damage to his literary reputation."
Mr Malcolm claims as relief an injunction restraining the University, its servants and agents or any of them, and in particular Dr Ryan, from further breaches of the Consent Order and costs. (It is however clear, and it was common ground at the hearing, that Mr Malcolm has no claim or right to relief against Dr Ryan personally).
10. The University in its Defence raises a number of grounds of defence, but relies only on one ground of defence for the purposes of this application. This ground reads as follows:
"9. As to paragraph 9 of the Particulars of Claim, the matters pleaded disclose no allegation that the Defendants, its servants or agents published or solicited publication of the letter complained of. If the claimant intends to imply that by reason of the matters pleaded either in paragraph 9 or in the remainder of the Particulars of Claim Dr Ryan was the defendant(s) or a servant or agent of the defendants at any material time:
a) The Defendants are a civil corporation [which carries on, amongst other things, the business of publishing under the name of the OUP];
b) It is denied that Dr Ryan was a servant of the Defendants at any material time;
c) If, contrary to the Defendants' primary case, Dr Ryan was a servant or agent of the Defendants at any material time, it is denied that he submitted his letter for publication in the course of his employment;
d) It is denied that Dr Ryan was the Defendants' agent for general purposes, or for the purpose of submitting letters for publication, at any material time. Further and in any event it is denied that Dr Ryan submitted the letter complained of on behalf of the Defendants, or with the authority or apparent authority of the Defendants, or with the Defendants' knowledge, or at the Defendants' instigation. Dr Ryan submitted the letter in his own personal capacity and not in the capacity of any of the positions referred to in the Particulars of Claim;
e) In the premises it is denied that the letter was submitted by the Defendants their servants or agents."
NATURE OF APPLICATION
11. The University on this application contends that the ground of defence pleaded in paragraph 9 of the Defence is plainly a complete answer to Mr Malcolm's case. That answer is that in his Particulars of Claim Mr Malcolm does not allege and could not properly or successfully allege that the publication of the Letter constituted a solicitation of publication by the University, its servants or agents or any of them.
12. The court may give summary judgment against a claimant on the whole of a claim under Part 24.2 of the CPR if:
(a) it considers that
(i) the claimant has no real prospect of succeeding on the claim;
or
(b) there is no other compelling reason why the case should be disposed of at a trial.
13. The words "no real prospect of succeeding" were considered by the House of Lords in Swain v. Hillman [2001] 1 All ER 91. Lord Woolf said (at p.92j):
"[these words] do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful prospect of success."
If, on the evidence, there is no real prospect of the claimant succeeding at trial, the court may therefore award summary judgment in favour of the defendants.
14. The court may strike out a statement of case under Part 3.4 if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing the claim; or
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings.
15. The court's powers to strike out were considered by the House of Lords in Three Rivers DC v. Bank of England (No 3) [2001] 2 All ER 513 ("Three Rivers"). CPR 3.4(2)(a) is concerned with cases in which the pleadings show no proper cause of action (Three Rivers per Lord Hutton at paras 116, 119, pages 549, 550). CPR 3.4 (2)(b) is concerned with cases in which the proceedings are an abuse of process for some other reason. Thus, if a statement of case does not disclose a reasonable cause of action it may be struck out under CPR 3.4. (2)(a) (per Lord Hutton at para 119-120, page 550). If the statement of case does disclose a reasonable cause of action but the Claimant has no real prospect of succeeding on the evidence available to be adduced at trial, it may be struck out under CPR 3.4(2)(b) as an abuse of process (per Lord Hutton at para 120, page 550). There is very considerable overlap between CPR Part 24 and CPR 3.4, and many cases falling within CPR 24 also fall within CPR 3.4.
16. The University's case is that Mr Malcolm has no viable or arguable case that the University, its servants or agents solicited publication of the Letter. Dr Ryan in soliciting publication acted totally independently of the University. The University first submits that Mr Malcolm does not allege in his Particulars of Claim that Dr Ryan was acting as the University's servant or agent when he wrote to the THES; the pleaded case therefore discloses no reasonable grounds for bringing the claim within the meaning of CPR 3.4(2)(a); and there is therefore no real prospect of success within the meaning of CPR 24.2. The University secondly submits that, even if it is assumed in favour of the Claimant (as a litigant in person) that he intended to make such an allegation, and he is given permission to amend accordingly, he will still have no real prospect of establishing such a case. For the same reason therefore his claim will be an abuse of process within the meaning of CPR 3.4.2. The University says that it is clear on the evidence that Dr Ryan was neither the University nor a servant of the University, nor was he acting as the University's agent when he sought publication of the Letter.
THE STATUS OF RELEVANT BODIES
17. It is relevant to consider the legal status of the University and the colleges of Oxford, the OUP and associated bodies. The legal position may be stated as follows :
(a) The Chancellor, Masters and Scholars of the University of Oxford is the corporate name of the University which is a civil corporation established under common law and formally incorporated by statute in 1571 ("the 1571 Act"). It is a legal entity distinct from the individuals who from time to time are the Chancellor, Masters and Scholars of the University.
(b) The Oxford University Press ("the OUP") is a department of the University, whose affairs are in the charge of a Committee of Delegates.
(c) The colleges of Oxford are charitable corporations legally distinct from the University though financially and otherwise closely linked to the University. Their wardens and staff are not as such employees or agents of the University. Some academics are employed by the University alone, some by colleges alone and some by both. But employment by a college is quite distinct from employment by the University.
(d) The University may confer on any person the title of professor as a title of distinction. Such conferment does not as such give rise to any contract of employment between the University and the conferee or vest any authority on the conferee to act as agent for or on behalf of the University.
(e) The Conference represents the common concerns of colleges at the University and negotiates with University bodies on collegiate matters, appoints members of joint University and College committees and carries out various other functions.
(f) The Congregation is the legislative body of the University, whilst the Council is the executive body.
(g) The Institute forms part of the University. Dr Ryan as unpaid Director of the Institute has authority to act on behalf of the Institute for limited purposes e.g. to employ staff, but not e.g. to write letters for publication in the THES.
CONSTRUCTION OF THE CONSENT ORDER
18. At the crux of this case is the true construction of the Consent Order. In view of the conflicting submissions of the parties I must express my views on the issues raised on the true construction of paragraph 7 of the Consent Order.
19. (1) The provision in the second sentence that the University "may" disclose the text of paragraph 7 to its servants and agents from time to time does not (as alleged by Mr Malcolm) impose upon the University an implied obligation to disclose the text to its servants and agents. Paragraph 7 in its first sentence imposes on the University an express obligation to the effect that its servants and agents will not make the derogatory statements referred to. As means of ensuring that there is no breach of this obligation, the second sentence confers on the University a dispensation from the confidentiality obligation imposed by paragraph 6 which would otherwise inhibit the University in informing its servants and agents of the need on their part not to make such derogatory statements. The University may (not must) make the disclosure of the University's obligation to its servants and agents to ensure compliance by the University with its obligation.
20. (2) The third sentence of paragraph 7 imposes no obligation on the University to disclose the text of paragraph 7 to Dr Ryan, Mr Hardy or Mr Charkin. The only obligation imposed is to make a request of them in the terms there set out. It is common ground that such a request in these terms was duly made. Mr Malcolm referred to and relied on a letter headed "Without prejudice save as to costs" dated the 1st July 1992 written to Mr Malcolm ahead of conclusion of the Consent Order in which the University's solicitors stated that they would notify Mr Hardy, Dr Ryan and Mr Charkin of the terms of paragraph 7. The status of this letter has not been fully explored because (as it seems to me) it cannot have given rise to any obligation and its provisions (so far as they might otherwise have any contractual effect) were superseded by the terms of the Consent Order to which Mr Malcolm's case was tied. In any event any breach of any contractual obligation imposed by the letter could not justify the grant of the relief claimed or indeed any relief. It would in the circumstances be purely technical and of no practical significance.
21. (3) Mr Malcolm has sought to adduce in evidence the correspondence which proceeded between the parties in the course of the negotiations leading to the making of the Consent Order. I do not however see how that correspondence affords any assistance in the search for the true construction of the Consent Order. The correspondence makes plain (as does the Consent Order) that Mr Malcolm was anxious for the protection of his own reputation and the reputation of the Work from any disparagement by the University, its servants and agents and by its former servants by Dr Ryan, Mr Hardy and Mr Charkin. The protection agreed to be afforded is to be found in the terms of the Consent Order.
22. (4) I turn to the critical provision in paragraph 7 of the Consent Order in which the University warrants that neither the University nor its servants nor its agents will publish or solicit the publication of any derogatory statement. Three observations are immediately called for. First a publication or solicitation by the Chancellor, a Master or a Scholar acting in a private capacity will not constitute a publication or solicitation by the body corporate, the University. Second the paragraph does not (as Mr Malcolm argues) extend to "officers" of the University (if there are any officers of the University) unless they also constitute servants or agents. The fact that the term "officer" was used in the negotiations cannot assist him. The term is not used in the Consent Order. Third the specific provisions relating to Dr Ryan, Mr Hardy and Mr Charkin make it plain that, unless at the date of solicitation or publication they fall within the category of servants or agents, the University is subject to no liability in respect of any solicitation or publication by them: Mr Malcolm has merely the benefit of a request by the University to them not to publish, a request which may be ignored with impunity.
23. (5) The term "servant" means an employee under a contract of service, thus excluding an independent contractor. A person who is not employed by the University but is paid for services rendered, e.g. giving lectures or supervising students, is not a servant of the University. The term "agent" means a person entrusted with the fulfilment of a role or performance of a task on behalf of his principal, usually involving or affecting the legal relations of the principal with a third party.
24. (6) The prohibition in paragraph 7 cannot be construed as imposing liability on the University if any of its servants or agents (whatever their employment or function) publish or solicit the publication of a derogatory statement, e.g. if the servant or agent is a member of the maintenance or catering staff or a messenger. The question raised is the category of servant or agent engaged by paragraph 7 and the relationship required between the employment or agency and the solicitation or publication. The proper approach to construction of the Consent Order must be one which minimises interference with freedom of expression and debate (most particularly in the university context) and avoids treating the University as assuming the obligation (in effect) to muzzle criticism where the University has no power to do so, whilst at the same time giving purposive effect to its provisions. The purpose behind paragraph 7 is to prevent the University being in any way party to any derogatory statement. The construction which achieves this purpose but avoids any unnecessary stifling of freedom of expression is to read paragraph 7 as a warranty by the University against publication or solicitation of derogatory statements by persons authorised so to act by the University or so acting for or on behalf of the University or in the course of their employment or agency relationship with the University. In short paragraph 7 should be read as a warranty by the University that the University will not do the prohibited acts whether by itself, its servants or agents. This (as it seems to me) accords with the approach to construction of the formula of words used in this case in Marengo v. Daily Sketch [1948] 1 All ER 406 at 407 and Heatons Transport v. TGWU [1973] AC 15 at 99 C-D.
MR MALCOLM'S CASE
25. I must now turn to the question whether on the facts of this case there is an arguable case, that the solicitation of THES by Dr Ryan to publish the Letter constituted a breach of the terms of the Consent Order. The facts are to be found in the witness statements served on behalf of the University of Mr David Holmes, the Registrar of the University, and Mr Ashley Stone of the University's solicitors Manches, and of Mr Malcolm served on his own behalf. There is no material conflict in the evidence and I cannot think that there could be made available today or at trial any further evidence of any materiality on the issues raised on this application.
26. I shall now turn to consider each of the ways Mr Malcolm presents his case.
27. First Mr Malcolm argues that there is a solicitation by the University because Dr Ryan is a Master and Scholar of the University. The short answer is that by the 1571 Act the Chancellor, Masters and Scholars of the University of Oxford for the time being constitute a legal corporation distinct from the individuals who are at any time the Chancellor, Masters and Scholars. That does not mean (as Mr Malcolm argues) that the obligation assumed in paragraph 7 is a valueless or empty obligation. The obligation binds the body corporate in respect of its own acts and those of its servants and agents acting as such. The obligation cannot extend, as Mr Malcolm construes it, to include acts by present (still less past) Masters or Scholars, indeed or (as Mr Malcolm suggested in argument) the members of the University.
28. Mr Malcolm then argues that, because Dr Ryan is Warden of New College and an employee of New College, and because New College is part of the University, Dr Ryan is an employee of the University. With respect this does not follow.
29. Thirdly Mr Malcolm argues that Dr Ryan's status as a professor of the University makes him an employee or agent of the University. That is not so: the title is purely honorific. He then says that Dr Ryan's employment by the University is established by the fact that the University makes (very modest) payments to him for what can only be described as piece work giving a limited number of lectures and supervisions. This however is quite insufficient to establish employment, most particularly since Dr Ryan has no legal obligation to do this work and the University is under no obligation to provide him with the work. In this regard Dr Ryan is plainly an independent contractor, and no more a servant or agent of the University than is the University's counsel making his submissions on behalf of the University in this case.
30. Fourthly Mr Malcolm relies on the fact that Dr Ryan was for a period prior to the critical date Chairman of the Conference and continues to have a role with the Conference. Any position Dr Ryan occupies in this regard is however as representative of his college or the other colleges represented in the Conference. In no way can his role constitute him the servant or agent of the University.
31. Fifthly Mr Malcolm relies on Dr Ryan's membership of Congregation. But membership of the University's "Parliament" again does not make him a servant or agency of the University. In certain circumstances and for certain purposes an organ of the corporate body may be equated in law with the corporate body, but there is no basis for equating Dr Ryan as a member of Congregation with the University.
32. Sixthly Mr Malcolm invokes Dr Ryan's role as Director of the Institute. Undoubtedly in this role he has the role of agent of the University in regard to the engagement and dismissal of staff, but the writing and request for publication of the Letter was in nowise connected with or part of or in pursuance of his duties as such Director. He wrote and solicited publication in his personal capacity as an academic holding a post at New College. Dr Ryan's status as Director of the Institute accordingly likewise does not assist Mr Malcolm.
33. Finally Mr Malcolm relies on the fact that Dr Ryan serves on a number of University committees. After the conclusion of argument at my invitation he sent to me detailed written submissions relating to Dr Ryan's membership of these committees, to which I have given all due attention. I do not see how Dr Ryan's membership advances Mr Malcolm's case in any way. Undoubtedly the committees have an important role in the life and affairs of the University, but membership does not constitute Dr Ryan a servant or agent of the University.
34. In short, save in the role of the Director of the Institute Dr Ryan is neither a servant or agent of the University; and his role as Director of the Institute is quite insufficient to establish any breach of paragraph 7 of the Consent Order. Beyond establishing his status as servant or agent, it is necessary also to show that in soliciting publication of the Letter Dr Ryan in some way represented the University or was acting as servant or agent of the University. It is quite clear this was not the case: the Letter was written in his personal capacity from the college of which he was Warden.
CONCLUSION
35. I am entirely satisfied that this action is bound to fail and summary judgment ought to be given for the University. There is no area where there is any prospect of evidence coming to light before or at any trial which can substantiate Mr Malcolm's claim. I am fully sensitive to his concern for his professional reputation and the limitations on the protection which (upon the construction which I have adopted) the Consent Order provides. But that limitation was inherent in the terms of the Consent Order itself. It is not possible, and indeed it would be wrong, to construe the Consent Order (as he wishes) as effective to muzzle academic freedom of expression and debate and censor any disparagement of the Work by academics at the University unless such disparagement is prompted or authorised by the University. The practical reality is, as it seems to me, that the re-emergence in Mr Malcolm's life on his return to Oxford of Dr Ryan (who had the leading role in the University's damaging decision to refuse publication of the Work) as author of the Letter has understandably fuelled on his part a deep resentment and suspicion of the University. But the Consent Order has never afforded Mr Malcolm protection from the expression of his adverse views by Dr Ryan.
ORDER OF MR JUSTICE LIGHTMAN, SEALED 1st FEBRUARY 2002
UPON THE APPLICATION of the Defendants for summary judgment against the Claimant and/or to strike out the Claimant's claim
AND UPON HEARING Counsel for the Defendants and the Claimant in person
AND UPON READING the documents before the Court
IT IS ORDERED
(1) that there be summary judgment for the Defendants
(2) that the Claimant do pay the Defendants' costs of the Application summarily assessed in the sum of £12,500
(3) that the Claimant do pay the Defendants' remaining costs of the claim other than those of the hearings on 14th January and 24th January 2002 to be subject to a detailed assessment if not agreed
(4) that the Court refuses the Claimant's application for permission to appeal from this order
(5) that if an application for permission to appeal is made the Order for payment of costs be stayed pending the outcme of the application for permission to appeal
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