Duke v The University of Salford [2013] EWHC 196 (QB)

[2013] EWHC 196 (QB)Case No QB/2012/0543IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue ON APPEAL FROM MANCHESTER DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 February 2013
Before
THE HONOURABLE MR JUSTICE EADY
Between
DR GARY PAUL DUKEAppellant/THE UNIVERSITY OF SALFORDRespondent/
The Appellant/Defendant appeared in person for in personJustin Rushbrooke (instructed by Heatons) for Respondent/ClaimantHearing Hearing date: 28 January 2013
Judgment
[1]In this libel action the University of Salford sues Dr Gary Duke over a number of blogs published by him towards the end of 2009. He applied to have the action struck out before District Judge Richmond in Manchester on 10 March 2012 on the basis that there was no reasonable prospect of success and/or that the claim was an abuse of process. This application was rejected, however, and permission to appeal was initially refused, both by the District Judge and, on paper, by Hickinbottom J on 27 June last year. A renewed application was granted by Bean J at an oral hearing so as to enable two specific matters to be resolved. The first question was a pure matter of law; namely whether a university can sue for libel at all. On the assumption that it has the capacity to bring such proceedings, the second issue for which permission was granted was whether or not this claim, or any part of it, should be struck out in accordance with the principles outlined by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946.[2]I was surprised by the submission that no university has the capacity to sue for libel: see e.g. University of Glasgow v Economist Ltd [1997] EMLR 495 and Hong Kong Polytechnic University v Next Magazine Publishing Ltd [1997] 7 HKPLR 286. I had always understood that a university would be able to sue to protect its reputation (provided the words complained of genuinely referred to the university itself, as opposed to identifiable individuals with responsibilities for its administration) and that they were such as to damage its reputation. Dr Duke, however, wished to revive an argument very similar to, if not identical with, the submission that was rejected by the Hong Kong Court of Appeal in the Next Magazine case. Obviously, the High Court in this jurisdiction is not bound by such a decision, but Dr Duke argues that it should not be followed in any event because, in the first place, it is simply wrong and, secondly, because Hong Kong jurisprudence does not have to take account of Article 10 of the ECHR, which enshrines and protects the rights of citizens to communicate freely and impart information.[3]The argument which Dr Duke wishes to resurrect is that the decision of the House of Lords in Derbyshire County Council v Times Newspapers [1993] AC 534 has the effect of preventing universities from suing for libel on the basis that they are to be regarded as public or governmental bodies providing higher education on behalf of central government which has delegated the task to them. This is simply not correct. Mr Rushbrooke, appearing for the University, pointed out that it is not the function of government to administer or provide higher education. He described that as an “Orwellian” prospect.[4]Of course, it is true that universities receive large sums of public money and that they have to comply with various statutory provisions, but that is not to say that they are to be equated with central or local government. The Court of Appeal in Hong Kong held that the Derbyshire case was distinguishable. As it was put by Litton VP at p.291:
“In my judgment, the consultations which govern a body like a university are far removed from those in the Derbyshire County Council case. In no way does the university take part in the government of Hong Kong. It is not an organ of government, democratically elected or otherwise. If public interest be the test, I would hold that it strongly favours the protection of the reputation of institutions of learning like the university.”
[5]In this jurisdiction, if it were decided that as a matter of public policy universities should not have the right to sue for libel, that could only be implemented by the legislature or, perhaps, by the Supreme Court. In this respect, therefore, I would uphold the decision of the District Judge. It follows incidentally that the related argument put forward by Dr Duke, to the effect that a decision adverse to him would open the “floodgates” and lead to a multiplicity of libel actions brought by universities and colleges of higher education, is simply misconceived. No such flood has resulted from the law as it now stands.[6]The important question on the present appeal, therefore, is whether the claim should be struck out as an abuse of process or, as I would formulate it more specifically, whether the words complained of do actually refer to the University or defame it.[7]One can envisage circumstances in which allegations of a general nature about a university could cause genuine damage to its reputation. Such allegations, if they reflect adversely upon its employment practices or admissions policy, might well discourage prospective employees or students from making applications. One can readily understand that such an institution would have a reputation as an employer and as a teaching or research body. What must be of central importance in every case is the extent to which the words do indeed reflect upon the university itself.[8]From time to time, it has been emphasised how important it is for the court to be wary, in cases where a corporate entity is suing for libel, to ensure that it is not being “put up” or used as a protective shield when the real gravamen of the defamatory words is to reflect upon the reputation of an individual or individuals: see e.g. Gatley on Libel and Slander (11th edn) at para 28.4, n.16; Carter-Ruck on Libel and Privacy (6th edn) at para 8.7, n.1; and Duncan & Neill on Defamation (3rd edn) at para 10.05, n.1. Considerations of this kind have a particular resonance in the present case.[9]The words complained of appeared on a website under the name “Rat Catchers of the Sewers”. A blog was operated, whereby members of the public or students of the University were encouraged to make contributions to an ongoing discussion either anonymously or by way of pseudonyms. It seems that one of the main functions of the blog was to provide a platform for criticism of various aspects of the University’s administration.[10]Dr Duke criticises the lack of particularity, as he sees it, in the words complained of in the particulars of claim, but it is possible to identify the main thrust of the complaints. It would be tedious to set out all of the allegations identified in the pleading, but the publications are identified in sub-paragraphs 7(a)-(j). There is no doubt that the University was referred to in various contexts and criticisms were made as to the way it was being administered. A persistent theme, however, was the focus upon two individuals in particular, namely Dr Adrian Graves and Professor Martin Hall. Professor Hall is the Vice-Chancellor of the University and Dr Graves holds the post of Deputy Vice-Chancellor. Dr Duke told me that he has nothing against the University as such, and indeed that he has considerable respect for its high standards and its accomplishments. His criticisms were directed towards those responsible for its administration. I hasten to add that what Dr Duke himself says about this cannot be determinative. What matters is the import of the words complained of themselves. I have come to the conclusion that any adverse comments about the University are, in context, really incidental to the attacks made upon the conduct attributed to the two individuals.[11]Mr Rushbrooke has submitted that, simply because libellous allegations reflect upon individual members of the academic staff, that does not mean that the University itself cannot also be defamed by the same words. He is quite right about that, of course, as a matter of general principle. What is important, however, is how the court construes the specific words which form the subject of complaint. I regard it as wholly unreal, and indeed an abuse of the court’s process, for these proceedings to continue on the basis that the only claimant is the University when the conduct to be examined in any plea of justification or fair comment would be that of Dr Graves and Professor Hall.[12]I need to make good my conclusions by referring in a little detail to the individual passages complained of in paragraph 7.[13]The point is illustrated well by sub-paragraph (a), which refers to a blog under the heading “Registrar and Antipodean: has Dr Deputy made another grave error of judgment?” Dr Graves is referred to as “secretive” and Professor Hall (with, I believe, some irony) as a “vehement human rights activist and social-justice believer”. They are said to have “adopted the antediluvian virtues of yester-yore … and have decided that staff and the wider public have a right not to know … the two top university bosses have decided that the less you know the better off we’ll all be”. If that is defamatory, it seems to me plainly to reflect upon the two identified individuals and the way in which their responsibilities have been discharged. I think it is fair to describe the reference to the University as being “incidental”. It is by no means the “villain of the piece”; indeed, it is portrayed almost as a “victim” in the sense that its best interests are being damaged by those identified as the culprits.[14]Sub-paragraph (b) refers to a blog headed “What a load of old bill-hooks”. The sentence in question is as follows:
“This infelicitous posturing by the University big-wigs cuts against the grain of the University’s own Information Governance … ”
It is said that the natural and ordinary meaning is that the University (and its senior members of staff) have acted inappropriately and have failed to follow the University’s rules of governance. This is contrived in the extreme. It makes no sense to say of the University that it has failed to follow its rules of governance. The criticism only makes sense in relation to human beings rather than a corporate entity. It is they who either do or do not follow its rules.[15]Sub-paragraph (c) refers to “these two implacable University bosses” who “regard themselves as immune to the whims of mere legislature in the shape of Parliament, and feel that they can readily cock their metaphorical hind legs at the trifle of English Law whilst offering the universal one-finger salute against the Freedom of Information Act (2000)”. The subject of the attack is plainly, yet again, the “University bosses”.[16]Sub-paragraph (d) identifies a blog referring to the departure of a personal assistant called Susan Burgess. The suggestion seems to be that the “Graves/Hall Continuum” was wishing to conceal the circumstances of her rather hurried departure and that they authorised “a significant payment … in order to cover a heinous impropriety”. This is raised by way of a question, but the implication is clear. At all events, any “heinous impropriety” can only have been brought about by one or more human beings. Again, it makes no sense to suggest that the University was paying money to cover a heinous impropriety. The behaviour described is such as to be ascribable only to human beings.[17]Sub-paragraph (e) refers to a suggestion that “some staff … have likened the current rule of the Strategic Leadership team to the Majis al-shura of Hexbollah … whereas other more cynical types suggest that it is more reflective of the Maglis al-shura al-Karar”. It is said that the much vilified Hexbollah might appear to be more democratic, accountable and transparent than “the current ruling regime at Salford”. There follows the allegation that “… under the leadership of Hall and Graves the University would seem to be adopting some of the more odious policies of the great Chinese bureaucratic dictatorship that dresses itself in the apparel of ‘communism’”. Again, the criticism is directed towards the individuals.[18]Sub-paragraph (f) complains of the following passage:
“With more than a hint of irony, this week, Vice Chancellor Hall has been appointed to the Knowledge Sharing Board … Can Hall successfully square his wish to be open about other peoples research when he is so secretive about information that he ultimately controls, and which should equally be open to those who request it?”
The words speak for themselves.[19]Sub-paragraph (g) attempts to incorporate by reference, as words complained of, the content of a board game which is set out and described in an appendix. Whether that is a satisfactory way of pleading is open to question but, assuming it is, it is quite clear from the meanings pleaded that it is said to convey an imputation of “bullying” and “harassment”. There is also reference to false accusations of sexual harassment. The meanings are pleaded at (probably excessive) length, but the point is that the defamatory allegations relate to behaviour that is attributable to individual human beings rather than a corporate entity.[20]Sub-paragraph (h) complains of words written under a heading “Many strings to his bow”. The accusation complained of is that there have been “acts of nepotism” and appointments made, not on individual merit, but on the basis of personal relationships. It makes no sense to accuse a corporation of “nepotism”. The allegations can only relate to individual human beings. From the context it is clear to whom that criticism is directed.[21]Sub-paragraph (i) refers to criticisms of members of staff being allocated excessive workloads and of lectures and tutorial groups being too large. If that is a criticism which is defamatory at all, it is surely directed towards those individuals who have imposed the excessive workloads or determined the size of tutorial groups.[22]Sub-paragraph (j) complains of an allegation that “senior members of staff” ensure that the findings of the staff mediation service are biased and that members of staff will not be given a fair or impartial hearing. That is plainly an allegation which is defamatory of those who administer the mediation service. Lack of impartiality, or “bias”, must refer to human failings.[23]It is in the light of this pleading that I have come to my conclusion that, in substance and reality, this is an action about allegations against individuals rather than against the University itself. The District Judge was of the view that any damages recovered by the University were likely to be modest (although not negligible), but that it was arguable that there was nonetheless a “real and substantial tort” and also that there was a real prospect of its obtaining an injunction. Indeed, it was the injunction which was placed in the forefront of the University’s argument on Jameel abuse. (As Dr Duke expresses it, somewhat differently, the proceedings have been brought not to protect the reputation of the University but to achieve the collateral objective of stifling free speech.) I am not convinced that there is a “real and substantial tort”, so far as the University is concerned, or that the proceedings should be allowed to continue purely for the purpose of the University’s obtaining an injunction to stifle criticism of Dr Graves and Professor Hall (for that is what it is about).[24]It is sometimes said that the appropriate test to apply, on such applications, is whether “the game is worth the candle”: see e.g. most recently the decision of the Court of Appeal in Cammish v Hughes [2012] EWCA Civ 1655 at [52] et seq. For the reasons I have given, I am satisfied that in this instance the litigation is not worth pursuing if its sole objective is to protect the reputation of the University (any damage to which is purely incidental) or to obtain an injunction to prevent bloggers criticising Professor Hall and Dr Graves (since they are not parties).[25]Sometimes, where an employee is libelled in relation to the carrying out of his/her duties, it may be legitimate for the employer to support and fund a claim in the name of the relevant individual. If Dr Graves and/or Professor Hall wished to bring an individual libel claim (and were able to surmount any difficulties imposed by the Limitation Act 1980, as amended), it is conceivable that such an action might be supported by University funds. That would be a decision, however, for the appropriate authority to make in the circumstances prevailing when that bridge has to be crossed.[26]I will allow the appeal on the basis of Jameel abuse, because I cannot see that a real or substantive tort has been perpetrated against the University; nor do I foresee any tangible advantage being achieved by way of its reputation being effectively vindicated (even assuming that it has been damaged). In so far as there has been any incidental damage to the corporate reputation, it is not going to be in any real sense vindicated for so long as any defamatory allegations against Professor Hall and Dr Graves with regard to their stewardship are left in the air.

Cited in 1 later judgment