IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
1. I will firstly address the issue of Dr Ryan's University Committee memberships etc. (hereinafter 'posts'), secondly explain some new points and another new item of evidence that have only today come to light, and then, in the light of these new facts, and at risk of overtiring the learned judge, analyse two sharp, residual legal/logical difficulties that have been troubling me since the hearing of 14th January 2002.
Dr Ryan's University Posts
2. I received the defendants' list and notes about Dr Ryan's posts by fax at about 5.0 pm on Tuesday 15th January. Their list of six posts adds to my list three new posts plus his ex officio memberships of electoral boards, and subtracts one from mine without responding to it - his apparent Chairmanship of the University's Equal Opportunities Committee. The defendants' list gives characterisations rather different from mine (and from the University Calendar's) of some of these posts. My combined list below also includes his Directorship of the Rothermere American Institute. I note that the defendants exhibit the University Calendar pages for only two of their entries, an omission which I will rectify where I can.
3. As can be seen from DRH2.62 (AM1.188), not all Oxford University Committees are published in the Calendar, and the ones that are and are not published in the Calendar vary from year to year.
4. There are further difficulties (for all parties) in getting at this information. The printed University Statutes (2000, current) Title IV Section III. 5 (page 36) reads (page 1, following):
"A complete list of all the permanent committees of Council shall be published annually in the University Gazette in Michaelmas Term, with the names of their chairmen (and vice-chairmen where appropriate) and other members."5. But a Council Decree (2) in the University Gazette of 7th December 2000 overrules this with (page 2, following):
"Notwithstanding the provisions... (above), Council shall not be required to publish annually in the Gazette... provided that such information is made available to members of Congregation by electronic or other means."
6. As a matter of fact such information is not presently available to members of Congregation by electronic or other means, and it is certainly not available to me. I have to rely (and can only exhibit) the last printed publication of (e.g.) the Equal Opportunities Committee (Calendar, 1999/2000). Several university officers (the Proctors, the Press Office, the Equal Opportunities Officer himself) yesterday told me that the composition of the Equal Opportunities Committee (and others) is now confidential. There may well thus be further Oxford University Committees on which Dr Ryan serves of which we, and perhaps even Dr Ryan himself, have no knowledge.
7. Allowing for these points, my combined list of Dr Ryan's Oxford University posts as at 13th April 2001 presently reads as follows, in suggested rough order of 'defendant' importance.
(1) Deputy Chairman of the University Admissions Committee - in its last published form at 13/4/01 named The Joint Undergraduate Admissions Committee (unless there is another such committee) - a Statutory Committee of Council and the General Board (see page 3 following).(2) Deputy Chairman of the University Admissions Executive Sub Committee of (1) - a Statutory (Sub) Committee of Council and the General Board (not in Calendar).
(3) Chairman of the University Equal Opportunities Committee - a Statutory Committee of Council and the General Board (see pages 4-7 following; formerly but not now in Calendar; I include earlier examples to demonstrate continuity).
(4) Member of the Degrees by Diploma and Encaemia (sic) Honorary Degrees Advisory Committee - a Committee of Council (see page 8 following; formerly but not now in Calendar).
(5) Member of the Committee for the Careers Service - a University Committee, all Heads of House ex officios.
(6) Member of the College Contributions Committee - a University Committee (see page 9 following; I note that the defendants' undated exhibit p.2 does not include Dr Ryan, so I here rectify their omission).
(7) Representative of the Conference of Colleges on the University's Joint Committee for the Co-ordination of University and College Fund Raising. Self-evidently a joint University/College committee, though note that on DRH2.62 (AM1.188) it is headed "University Committee, not in Calendar".
(8) Director of the Rothermere American Institute, fully entitled The University of Oxford Rothermere American Institute.
(9) Ex officio member of electoral boards for chairs associated with New College and the Rothermere American Institute.
8. In short, at the material time, Dr Ryan was the Director of a University Institute, and sat on three Statutory Committees of the University Council, one non-Statutory Committee of the University Council, two Committees of the University (Visitors and...), and one joint University/College committee (all classifications as in the Oxford University Calendar, whose separate "The Colleges" section does not begin until page 191). Also, not long beforehand he had been Chairman of the Conference of Colleges, a post which, ex officio, put him at the very top of Council itself (see page 10 following) and of several more Council Committees.
Some other new material
9. Today, as a result of my hurried researching into Dr Ryan's various posts, I have been approached by a senior figure at the University who finds the defendants' statements concerning Dr Ryan's status at the University insupportable. He has faxed me an interesting new item and has put to me the following points:
(a) By ancient tradition the posts of Vice-Chancellor and non-designated Pro-Vice-Chancellor (at the material time 6+1 in number), the University's highest authorities, can be held only by heads of house, that is by people, according to the defendants' logic, who, like Dr Ryan, do not fall within the scope of the phrase "the defendants, their servants and agents" (see pages 11-12, heads of house starred). This echoes the first of my logical difficulties.
(b) By virtue of the traditional rotation system, Dr Ryan is himself soon likely to be appointed a Pro-Vice-Chancellor.
(c) Dr Ryan's titular Professorship was awarded by the Social Studies Faculty (a University body) in recognition of his teaching and supervision work for it. His lecture courses will have been advertised by the Faculty as University courses. However his (Professor's-scale) salary is paid, and only paid, on account of his teaching work for the University Faculty.
(d) Dr Ryan's Graduate Supervision work (Mr Stone, paragraph 6) will have been remunerated by regular payments from the University Chest like the anonymised example exhibited at page 13 following.
10. The first thing that this new material and Dr Ryan's list, still only provisional, proves is that the evidence previously provided by the defendants was inadequate and incomplete. Mr Holmes' statement of 9th October 2001 has already been partially 'overtaken' in respect of Mr Ryan's earnings from the University by Mr Stone's last-minute statement of 10th January 2002. Now, even in respect of Dr Ryan's University posts, Mr Holmes, the University Registrar who should surely have immediate access to all such information, has been proved to be wildly under-informed.
11. The defendants' entirely new admissions of 15th January 2002 offer yet another demonstration that the full facts of Dr Ryan's responsibilities for, functions at, and incomes from the University are only likely to emerge at a proper hearing of the claim, with cross-examination of witnesses and so forth.
12. The next thing that these accumulating exhibits demonstrate is that, even in terms of the legal niceties, the defendants' attempt to maintain a clear distinction between 'the colleges' on the one hand and 'the university' on the other is unsustainable. All the myriad university committees, from Council downwards (page 10), are evidently all in constant flux and reorganisation, are drawn and only drawn, from the members of the university's colleges, are locked in a perpetual merry-go-round of transient post-holding, and are often expressly designated by means of college-rotation (e.g. DRH2.53). Far from being "entirely distinct", the colleges and their university are entirely enmeshed.
13. As stated in the Wolfson Lectureship notice (AM1.11a): "Virtually all university academic posts at Oxford have a formal association with a college", so it is always going to be open to a university committee-man to say, or 'spin' in any context that "he is only representing his college" on any committee. The game of hide-and-seek that Dr Ryan and OUP played with me in 1986-90 behind the systematically ambiguous role of its Delegates, is now being replayed by Dr Ryan and the university behind the systematically ambiguous role of its colleges.
14. But in fact, and surely in law, when Dr Ryan serves on one of his seven present university committees (or served in 1986 on the OUP Delegates Committee, or was the University Assessor), he is/was not serving "as the representative of (an entirely distinct) New College" as the defendants are trying to suggest, but is/was participating in the administration of the university itself, that is, of the defendants.
15. The current major THES article on Oxford's reform which I displayed at the hearing personally credits and quotes Dr Ryan for playing a big part in the latest 'streamlining' of his University's governance, placing him at the very heart of the defendants' power-structure.
16. At the hearing on 14th January Counsel for the defendants asserted that Dr Ryan falls into a small, third class of Congregation members whose salaries are wholly funded by their colleges. By letter of the following day I asked them to state roughly how many people fall into this class, but they declined to reply (see pages 14-16 following). One may speculate that it amounts to only a very tiny fraction of the Congregation's present 3,600 members.
17. However, assuming that most of the (about 40) heads of house would be amongst this small elite, and in the light of 9(a) above, there is the further perverse result (again, the first of my logical difficulties) that many of the University's uppermost echelons and committees are largely and sometimes wholly composed of people who, according to the defendants' logic, would fall outside the scope of the phrase "the defendants, their servant and agents". By way of further illustration of this, I exhibit also at page 18 the University's Hebdomadal Council for 1999-2000 (the last year it was published), again with the heads of house starred.
18. Turning back to the instant claim and to the agreement of 1st July 1992, the learned Judge, in his written summary para. 7, states:
"Dr Ryan as director of the [Rothermere American] Institute has authority to act on behalf of the Institute for limited purposes e.g. to employ staff, but not to write letters for publication."
I still cannot (the second of my logical difficulties) make sense of this in the context.
19. University and college people, famously above all others, do not need or seek authority to write letters to journals. The parties to the agreement clearly were not intending "derogatory letters" to mean "derogatory letters ratified by the University Council", or whatever else might be thought to count as "with the authority of the defendants".
20. At the hearing on 14th January Counsel for the defendants suggested that Dr Ryan was acting "on a frolic of his own." But even without consulting its preceding 1992 correspondence, it is clear just from the agreement's Clause 7 (e.g. its last 'request' sentence) that its whole purpose was to prevent such individual 'frolics', with the defendants by their volunteered second sentence (notification of their servants and agents from time to time) impliedly undertaking specified steps to prevent them. Not only did they fail to take those steps, now they are failing to acknowledge a clear breach.
21. As a matter of history, the clause's phrase "or any of them" was suggested by my advising barrister as an addition to the defendants' standard formula "servants and agents", and was immediately accepted by them, precisely to emphasize that the clause was to cover letters written by individuals, and this addition can fairly be spelt out as "or any individual one of them."
22. The defendants' stated contextual reason for the specific exclusion in 1992 of Dr Ryan, by then at Princeton, from the scope of "their servants and agents" was that he was a "former officer or employee" of the defendants (AM1.90), again implying that the phrase "servants and agents" was intended to include their "present officers or employees" and hence to imply a general application of the phrase appropriate to a vast, unusual, complex, amorphous 'employer' like an ancient collegiate university, and certainly an application that would include a holder of seven of its committee posts and one of its institute directorships.
23. Whatever the outcome of this particular claim concerning Dr Ryan's particular letter of 13th April 2001, it is in the obvious interests of all parties, for the avoidance of future similar litigation, that the scope of the evidently contentious phrase "the defendants, their servants and agents, or any of them" be clearly determined.
24. Notwithstanding all the evidence now amassed putting Dr Ryan firmly at the very heart of the defendants' structure, it seems equally clear to me that a decision made on the basis of evidence that a particular future 'offender' sits on (a), (b), (c) university committees or gains x% of his University income by giving piece-work lecture courses is a recipe for potentially endless future disputes. Resolution of such a simple clause cannot hang every time on the state of play in the University Committees' musical chairs game, or on the ebbing and flowing of the ancient Colleges-versus-University war.
25. It would be far better, I again suggest, simply to lay down that in our agreement's letter-writing context, the phrase "the defendants, their servants and agents, or any of them" should be taken to mean "current registered members of the University Congregation".
26. In case it helps further on this point, I have just obtained from the internet the University's new Statutes, published in the Gazette Supplement (1) to no.4601, 7th November 2001, and I exhibit here (page 19 below) the University's own various new definitions of "Membership". It will be noted that there are listed several much wider definitions of "Membership of Oxford University" than the Congregation (8) which I have suggested.
27. Had Dr Ryan in 1992 held the positions at the University he now holds (and so not been mentioned in Clause 7's last 'request' sentence), would either party to the settlement as drafted have regarded him as not being 'bound' by it (to echo the wording of the OUP employees' memorandum)? And in 1992 would such a derogatory letter from him have been legally defensible or defended? I cannot believe so, or that either party would have raised any question or doubt on account of Dr Ryan's position at New College. At the time and in the context (and with his notification as implied), there would have been no doubt whatever: Dr Ryan's 'frolics' were the Clause's prime target.
28. This being so and the defendants' undertaking being "of unlimited duration", I submit that the defendants' application should be rejected now as firmly as it would have been in 1992, with no elapse of time or spells in Princeton being allowed to blunt the sharpness either of the law or of the contracting parties' original and clear intentions.
Filed 17th January 2002 by Andrew Malcolm, the Claimant in person.