“… any inventions, designs, information, know-how, specifications, formulae, data, processes, methods, techniques, and other technology that are conceived, or developed by the University, its staff or agents, alone or jointly with others, during the course of the Research Programme and the Intellectual Property Rights therein.”
“… Dr Richard Hill in the School of Pharmacy and Biomedical Sciences, Faculty of Science at the University or of such other member of staff as the Funders and the University shall mutually agree.”
" ….these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when ….the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for…."
"…This is not a mere slogan. It reflects an old legal rule that fraud unravels all…It also reflects the practical basis of commercial intercourse. Once fraud is proved, 'it vitiates judgments, contracts and all transactions whatsoever'…Parties entering into a commercial contract will no doubt recognize and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal. What is true of the principal is true of the agent, not least in a situation where, as here, the agent, if not the sire of the transaction, plays the role of a very active midwife."
" I would add, for the sake of completeness that the present case is not concerned with a situation of the dishonest conduct of a servant or agent in the course of the performance of a wholly valid contract, say a contract of carriage, and an exemption of, say, the theft of the goods in transit. There questions of construction may well arise…."
" I think it is an inescapable conclusion from what he said that the Judge did think that the clause applied to a claim for fraud and to a claim which had been fraudulently concealed by the conduct of the freight forwarder….I do not think such a construction was justified. The clause is obviously designed to meet ordinary contractual claims …which a freight forwarder would expect to have to face in the ordinary course of his business. As Lord Justice Rix put it in HIH Casualty at p.512: Parties to a contract plainly look to performance rather than non performance or misperformance, but they also contemplate the latter. It seems to me however that fraud is a thing apart. Parties contract with one another in the expectation of honest dealing. The majority decision of the House of Lords in HIH Casualty…does not cast doubt on these principles." 149. With respect, I do not think that this passage affords Mr. Jacobs the assistance which he sought to derive from it. First, it is quite understandable that a contractual time bar provision should be inapplicable when a claim has been fraudulently concealed (cf.,s.32 of the Limitation Act 1980 ); that can have no bearing on the true construction of cl. 27(A). Secondly, when considering the discussion in Granville as a whole, to my mind the references to "fraud" are references to fraud by the freight forwarder; they are not references to theft by the freight forwarder's employees for which the forwarder is vicariously liable. Such a construction is itself a noteworthy inroad into cl. 28 of the BIFA terms (contrast, in a different area of the law, The Captain Gregos[1990] 1 Lloyd's Rep 310 ), but, again sheds no light on the true construction of cl. 27(A). Thirdly, even if the time bar provisions of BIFA are inapplicable to claims involving employee dishonesty for which the freight forwarder is vicariously liable, it does not follow that cl. 27(A), a limitation clause, is similarly restricted. While it is true that the section in the BIFA terms, "
“Igfr1 confers resistance. IP18167B knocks out Igfr1.”
“So IP1867B stops resistance to EGFR inhibitors by downregulating IgFR1.”
“Igfr1 confers resistance. IP18167B knocks out Igfr1.”
“So IP1867B stops resistance to EGFR inhibitors by downregulating IgFR1.”
“If we were to use as many words as required to perfectly summarise all of the data in this manuscript and then summarise that data into the different sections and also into the title, I do not think that that would change those outputs of this manuscript, i.e. if we were to take all of the data into account and perfectly summarise it, I think we would still come out with the same conclusions of this paper”
“don’t seem to lose weight at all, they are gaining weight, which could be a positive sign of tumour growth control under liquid aspirin treatment”
“The description of the in vivo data, as stated by Prof Bushell are confusing”.Professor Short also explained in cross-examination that the reference to six mice “is a typographical error although I must say six is a fairly standard number to use in these circumstances. That might explain the typographical error”
‘where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger’, per Rix LJ in Markel International Insurance Company Ltd v Higgins[2009] EWCA Civ 790 at [50]. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts[1964] 1 WLR 451 , 455 (cited by Lord Nicholls in In re H[1996] AC 563 , 586H), ‘The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’
‘I think there are several different reasons why that might be the case. So you may have run an experiment that did not work quite as well as you thought it would. And you may, you know, be under time pressure to produce some data, and we have seen that actually running a western blot is time and it is a sort of an energy intensive technical process. It would be much easier obviously to take an image that already existed and use that.’ 42. Finally, the fact that the paragraph 15(b) allegation concerns the manipulation of a ‘control’ blot that tends to look very similar across experiments (if done properly) in fact makes deliberate conduct (i.e., dishonesty) more probable. That is because it is understandable, as a matter of human psychology, that a scientist under immense time and personal pressure would cut corners by manipulating the same beta actin western blot image (the work of a few seconds) to look different (cropped, presented (i.e. flipped) and labelled differently) in separate figures, instead of going to the effort of finding, in a not uncomplicated electronic filing system, the ‘original’ beta actin western blot image (i.e. a beta actin image derived from the same experiment from which the particular protein of interest image is taken) and cross-referencing that with a laboratory book to ensure it is accurate. Because the image is the ‘control’ and does not illustrate the ‘protein of interest’, one can see why a scientist might be able to persuade him- or herself that, in that limited sense, manipulating this image is less culpable. It is, of course, still dishonest. ‘I think there are several different reasons why that might be the case. So you may have run an experiment that did not work quite as well as you thought it would. And you may, you know, be under time pressure to produce some data, and we have seen that actually running a western blot is time and it is a sort of an energy intensive technical process. It would be much easier obviously to take an image that already existed and use that.’
‘The Editor and Publisher received a letter from the University of Portsmouth alerting us to an investigation into alleged research misconduct. The University concluded their investigation with external experts and determined that misconduct did take place in relation to the research involved in this paper.’
“The Principal Investigator shall keep the Funders regularly updated on the progress of the Research Programme by providing regular reports not less than four times a year (every 3 months); meeting with representatives of the Funders at times and places mutually agreed upon to discuss the progress and results, as well as ongoing plans, or changes therein, of the Research Programme. The Principal Investigator shall also hold regular conference calls/meetings with the Funders as and when important data is obtained.” 185. In the University’s submission, this last point is critical in understanding the nature of the University’s obligations under Schedule 1. In the University’s submission, it is clear from clause 2.2 that the Research Programme as planned in the Schedule was subject to change depending on progress and results, and that plans with respect to the Research Programme as it related to the Drug could be changed by the Principal Investigator, Dr Hill in consultation with Innovate. That stands to reason when one considers the following particular characteristics of the Contract: a. As a contract for a programme of scientific research, it necessarily had to have built into it a large measure of flexibility to adapt as the research progressed. b. That flexibility was all the more important as the funding under the Contract was meagre in total, and strictly limited to£25,000 in respect of the Drug component of the research (and even then Innovate only paid half). 186. Support for the University’s interpretation can be found in the additions to the research programme that were in fact carried out: the study of IP1867B as an adjunct therapy to the EGFR inhibitors Gefitinib and AZD3759 was an adjustment to the Research Programme made by Dr Hill in consultation with Innovate and Innovate have made no complaint about that additional work. 187. In the light of the foregoing, the University’s primary submission is that, by the time of the completion of the work comprising the Research Programme which underlay the publication of the Article, the scope of the Research Programme under the Contract had evolved pursuant to clause 2.2 of the Agreement. By that point, the Research Programme under the Contract equated to the research that had actually been done (the “Completed Research”). 188. It follows that, in order to put Innovate back into the position that it would have been but for the alleged breaches of the Contract, the repeat research programme only has to be of a scope and scale approximating that of the Completed Research which underlies the Cancer Letters Paper. To go beyond that would be to award Innovate damages which go beyond compensation for its contractual loss. In the University’s submission, the correct exercise in assessing the repeat research quote relied upon by Innovate is therefore to ask whether it is of a scope and of a scale approximating to that of the Completed Research which underlies the Cancer Letters Paper, not to look to the anticipated Research Programme as set out in Schedule 1 of the Contract as executed on7 July 2016 . 189. The logic of that analysis is consistent with the pleaded case on breach as run by Innovate at trial. Innovate’s case at trial focussed exclusively on the errors which Dr Hill was said to have made in the Article. It was not suggested in cross-examination of Dr Hill or Professor Pilkington (for example) that Dr Hill had erred in his conduct by failing to undertake or complete aspects of the Research Programme as set out in Schedule 1. That stands to reason: first, Mr Cohen (and to a lesser extent Dr Stuart) were in constant communication with Dr Hill as to the progress of the Research Programme. Secondly, the research undertaken was necessarily curtailed by the pressure from Innovate to complete the Research Programme and publish the Article. 190. In the event that the Court does not accept the University’s primary position, the University submits that, at the very least, the scope and scale of any proposed repeat research programme must be referable to and limited to the obligations set out in Schedule 1 to the Contract. Again, it would offend the compensatory principle for Innovate to be awarded damages in respect of a repeat research programme which went beyond the scope of the work contemplated in Schedule 1. “The Principal Investigator shall keep the Funders regularly updated on the progress of the Research Programme by providing regular reports not less than four times a year (every 3 months); meeting with representatives of the Funders at times and places mutually agreed upon to discuss the progress and results, as well as ongoing plans, or changes therein, of the Research Programme. The Principal Investigator shall also hold regular conference calls/meetings with the Funders as and when important data is obtained.”