IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
ACCOMPANYING EXHIBITS
DRH1 (56 pages) including: 15 pages from the New College Statutes, some of which were illegibly handwritten; 16 blank forms relating to honorary professorhips; 10 pages, some blank, of American Institute minutes;
DRH2 (62 pages) the handbook of the Conference of Oxford Colleges (last two pages, the only ones relating to Alan Ryan, later found to be 'missing' from the Court Bundle); and
DRH3 (18 pages) files from www.akme: The War for Jericho: TLS article by Malcolm, 2/4/99, the Case History of Malcolm v. Oxford 1986-1992, and a letter from Malcolm to Henry Hardy, 15/11/92.
Altogether only 7 of Holmes' 151 pages personally relate to Alan Ryan.
I, DAVID ROBERT HOLMES of University Offices, Wellington Square, OX2 2JD will say as follows:-
1. I am the Registrar of the University of Oxford. I am employed by the University and am responsible for the administration of the University.
2. I am authorised to make this witness statement on behalf of the Defendants, the Chancellor, Masters and Scholars of the University of Oxford, in support of their application to strike out the Claimant's claim pursuant to Part 3.4(2) of the CPR on the grounds that the Claimant's Statement of Case discloses no reasonable grounds for bringing the claim and/or is an abuse of the court's process; alternatively, for Summary judgment pursuant to Part 24.2 of the CPR on the ground that the Claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial. The contents of this witness statement are based on my own personal knowledge or, where I have indicated, from information I have obtained from documents or from other parties.
3. There are now shown to me marked "DRH1" true copies of various documents to which I refer below.
Status of the Defendant
4. The University of Oxford is a civil corporation established under common law which was formally incorporated by Statute in 1571 [link at end of file]. Its corporate name is "The Chancellor, Masters and Scholars of the University of Oxford". It is a legally distinct person from those individuals who are at any particular time the chancellor, masters and scholars respectively.
The Claimant's First Set of Proceedings
5. In 1986 the Claimant commenced High Court proceedings against the Defendants following the decision of Oxford University Press ("OUP") not to publish a book by the Claimant entitled Making Names. OUP is a department of the Defendants and is not a separate legal entity from the Defendants. Accordingly legal claims relating to OUP must be made against, or in the name of, "The Chancellor, Masters and Scholars of the University of Oxford." The affairs of OUP are in the charge of a body known as the Delegates.
6. The Claimant was unsuccessful at first instance but successful upon appeal. Following the Court of Appeal judgment in the Claimant's favour, and an enquiry as to damages, the parties settled the matter. A Consent Order was agreed and signed by both parties on 1st July 1992 (pages 1-3 of "DRH1"). Clauses 7 and 8 of the Schedule to the Consent Order stated:-
"7. The Defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names. For the purpose of giving effect to this undertaking, the Defendants may disclose the text of this term to their servants and agents from time to time. The Defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names.8. The undertakings contained in Paragraphs 6 and 7 hereof are of unlimited duration.
7. One of the individuals involved in the events which led to the dispute between the Claimant and OUP was Dr Alan Ryan. I am informed by Dr Ryan that in 1985/6, he was a Fellow of New College, Oxford, a Reader of the University of Oxford, the Assessor of the University of Oxford and a Delegate of OUP. However, by July 1992, when the agreement referred to above was signed, Dr Ryan had left Oxford and moved to Princeton University in the USA.
The Claimant's Second Set of Proceedings
8. The Claimant commenced new proceedings against the Chancellor, Masters and Scholars of the University of Oxford on 8th August 2001 for an alleged breach of the Consent Order referred to above, seeking an Injunction "restraining the Defendants, their servants or agents or any of them, and in particular Alan Ryan, from further breaches of the agreement of 1st July 1992" plus costs on the indemnity or alternatively, standard basis.
9. The Claimant bases his claim on a letter from Alan Ryan to the Times Higher Education Supplement ("THES") dated 13th April 2001 (page 4 of "DRH1") in which Alan Ryan stated in relation to Making Names:
"The book wore badly on re-reading; what had seemed fresh, lively and amusing seemed coarse and jeering the third time around."
10. The Claimant refers in his Particulars of Claim to Dr Ryan's various appointments or roles. Although he does not allege in terms that Dr Ryan is a Defendant or a servant or agent of the Defendants, he appears to imply that this is the case. Dr Ryan is not one of the Defendants as he is clearly not the civil corporation referred to in paragraph 4 above. I refer to each appointment or role in turn below.
Wardenship of New College
11. Dr Ryan is the Warden (ie head of house) of New College. I am informed by Dr Ryan that he is employed by the college and that the college pays his salary monthly on the PAYE basis. Dr Ryan further informs me that he was elected Warden by the college's governing body in May 1995 and took up his post on 1st September 1996. Copies of the pages of New College's Statutes which relate to the election of the Warden are at pages 5-18 of "DRH1". New College is a wholly separate legal entity from the Defendants. I confirm that the Wardenship of New College is not a University position and that Dr Ryan is not an agent or an employee of the Defendants in this capacity.
Title of Professor
12. Dr Ryan has the title of "Professor". However, this is simply a title of distinction. Chapter VII section I. s10 of the Defendants' Statutes Decrees and Regulations ("the Statutes") provides that the University may confer as appropriate the title of Professor or Reader, without stipend, in recognition of personal academic distinction, on either (a) employees of the University, or (b) persons not employed by the University but who are making a significant and sustained contribution to it in an academic capacity. I am informed by Dr Ryan that the University Distinctions Committee of the General Board of the Defendants conferred the title of Professor on Dr Ryan in 1997. He was not at the time (and he is not now) employed by the Defendants. A copy of the relevant Statute from the Defendants' Statutes, Decrees and Regulations 1997 is at page 19 of "DRH1". A copy of a recent circular which sets out the system of honorific appointments is at pages 20-35 of "DRH1". Accordingly, the title of Professor does not give Dr Ryan authority to act on behalf of the Defendants in any capacity whatsoever.
Membership of Congregation
13. Dr Ryan is a member of Congregation, the legislative body of the Defendants. He would have been re-registered in September 1996 when he returned to New College from the USA. A copy of the relevant Title of the Statutes setting out the composition and duties of the Congregation is at pages 36-38 of "DRH1". I am not aware of any other duties which have been assigned to Congregation by the Statutes under Title II Section I para 2(g). Dr Ryan is not employed by the Defendants as a member of Congregation, nor does his membership of Congregation afford him any authority to act on its behalf.
Member of the Conference of Colleges
14. Dr Ryan is a representative of New College to the Conference of Colleges ("the Conference"). A true copy of Part 1 of a handbook on the Conference and is now shown to me marked "DRH2". As the Introduction to the handbook states, the Conference represents the common concerns of several colleges of the University of Oxford; negotiates with central University bodies on collegiate matters; appoints members of joint University/College committees; has representation on the University Council, its committees and the five Divisional Boards (Life and Environmental Sciences, Mathematical and Physical Sciences, Medical Sciences, The Humanities and Social Sciences); and acts as a body for intercollegiate discussion and decision-making.
15. I am informed by Dr Ryan that he was Chairman of the Conference between 1st October 1997 and 30th September 1999. (The Chairman is elected to the office for two years.) I am further informed by Dr Ryan that he has been the Deputy Chairman of the Admissions Executive of the Conference since its inception in October 2000 and he has been a Conference representative on the University's Joint Committee for the Co-ordination of University and College on Fund Raising since 1997 (page 62 of "DRH2"). The Introduction to the handbook states (at paragraph 2) that the Admissions Executive is the committee concerned with undergraduate admissions, and that Membership of the Admissions Executive includes representation from the University thereby providing a forum for formal liaison with the University on admissions matters.
16. Once again, Dr Ryan is not employed by the Defendants in any of these positions; nor does he act on behalf of the Defendants in any capacity in connection with any of these positions.
Director of the Rothermere American Institute
17. Dr Ryan was appointed the Director of the Rothermere American Institute ("the Institute") by the University's General Board on 2nd December 1998 with effect from 1st January 1999. Copies of documents relating to the appointment are at pages 39-55 of "DRH1". A copy of the decree establishing the Institute is at page 56 of "DRH1". The decree states that the Institute was set up to:
"provide a focus for the study of the United States and the colonial territories that preceeded (sic) it, and to promote an interdisciplinary and comparative understanding of the nature and society of that country and the relationship between the United States and other countries".The Institute was originally known as the Oxford American Institute but was renamed the Rothermere American Institute on 21st January 1999 (page 49 of "DRH1").
18. Dr Ryan is not paid for his role as Director of the Institute. As to his functions, I am informed by Anthony Weale, the Secretary to the General Board of the Faculties (which was responsible for the academic administration of the University) at the time of Dr Ryan's appointment, that Dr Ryan was appointed as Director to pursue the academic programme of the Institute, oversee the completion of the building of the Institute and undertake budgetary responsibility for it.
19. As such, Dr Ryan had authority to act on behalf of the Defendants for certain limited purposes, relating to the administration and operations of the Institute. In particular, he was authorised to employ and dismiss staff, as set out in a letter of authority to him dated 23rd July 2001 from the Defendant's Head of Personnel (page 54 of "DRH1"). A copy of the Statute referred to in Mr Whiteley's letter is at page 54 of "DRH1". He had no other authority from, or other obligation to, the Defendants arising out of his position as Director.
20. I am informed by Dr Ryan that (on a date that he cannot recall) he also received a letter from Professor Newell (which is no longer available), who was the Chairman of the Staff Committee until 30th September 2000. I understand from Dr Ryan that this letter also authorised him to employ and dismiss staff in the identical terms as set out in Mr Whiteley's letter but gave him no other authority. I confirm that Dr Ryan is not (and was not in March/April 2001) authorised by the Defendants to write any letter or other correspondence in relation to Mr Malcolm in any way whatsoever; nor have the Defendants any right or power to control him in relation to such correspondence.
21. As Director of the Institute, Dr Ryan is provided with an office and standard office furniture at the Institute, but he does not receive any equipment from the Defendants.
General
22. Dr Ryan is, therefore, not employed by the Defendants and is not paid by the Defendants in any capacity. Furthermore, Dr Ryan is not (and was not in March/April 2001) authorised to act on the Defendants' behalf except in certain limited respects specified above in connection with the Rothermere American Institute. He was not authorised to write to the THES on behalf of the Defendants, and the Defendants did not authorise or instigate the particular letter in question. I am informed by Dr Ryan that he did not inform anyone that he was writing to the THES before the letter was published.
The Claimant's Breach of the Agreement
23. Clause 6 of the Agreement stated:
"From the date hereof both the Plaintiff and the Defendants will keep strictly confidential and not disclose, nor cause, permit or howsoever otherwise procure the disclosure of the terms of the agreement herein to any third party, save as required by law, and save that the terms of the agreement herein may be disclosed to the parties' professional financial advisers and to Clifford Chance and Harvey McGregor QC (for the Defendants) and to Richard White (for the Plaintiff) on condition that the aforesaid agree not to disclose the terms to any third party. These undertakings of confidentiality apply to each and every term of the agreement herein but not to the fact of the settlement and when questioned concerning the settlement, the parties shall reply with words to the following effect: 'The parties have agreed to settle their outstanding claims but are bound by mutual undertakings of confidentiality and accordingly are not at liberty to discuss or comment upon the terms of the settlement. "24. There are now shown to me marked "DRH3" copies of pages which, I am informed by Paul Stone of Manches, solicitors for the Defendants, appear on the Claimant's website and which refer to the agreement in July 1992 (pages 5 and 11 of "DRH3").
25. I believe that the Claimant will not succeed in his claim for the reasons set out in paragraphs 4 and 11-24 above. For the same reasons, I believe that the Claimant has no real prospect of succeeding on the claim. I know of no other reason why the disposal of the claim should await trial.
26. I believe that the facts stated in this Witness Statement are true.
Signed D. R. Holmes
Dated this 9th day of October 2001