Cleeves v University of Oxford

The Claimant brings this claim against the governing body of the University of Oxford, whose legal title is “The Chancellor, Masters and Scholars of the University of Oxford” (the “Defendant”) for damages, arising out of alleged shortcomings in the Defendant’s treatment of her during and after her period of study at the Defendant University. The keystone to her claim is the alleged theft of and breach of copyright in research undertaken by her during her studies, with a view to becoming a Doctor of Philosophy. In fact, she never completed her doctorate, and complains that the Defendant was instrumental in preventing her from completing it. She further complains that the Defendant failed to complete its own investigation into her complaints properly, and failed to alert the Claimant to the possibility of a further right of recourse to the Office of Independent Adjudicator (“OIA”). For these failures, she seeks damages from the Defendant, including aggravated, punitive and exemplary damages. Her claim form stated that she expects to receive damages in excess of £200,000. By an earlier letter to the Defendant dated 11 November 2015, she had quantified her losses at 133 million Canadian dollars (equated by the Defendant, at that time, to approximately £55 million).

There are three applications currently before the court. They are, in date order:

The three applications were listed for hearing before me by order of Warby J sealed on 4 January 2017.

It is logical that I deal first with the appeal from Master McCloud’s order before considering the applications by each party to strike out the other’s case.

The Defendant does not resist the appeal and so I allow it by consent.

However, for reasons to which I shall return, it is necessary to set out the sequence of events which gave rise to Master McCloud’s Order and resulted in the appeal coming before me today.

On 8 December 2015 the Claim Form was issued. The Claimant’s Particulars of Claim followed on 11 March 2016. The Defence was lodged on 29 April 2016. The Defendant invited the Claimant to withdraw her claim with no order as to costs failing which the Defendant indicated that an application to strike out the claim would be made. The Claimant did not respond to that offer. On 20 May 2016 the Defendant wrote to the Claimant saying that the Defendant would apply to strike out her claim and requesting information needed for a private room appointment (“PRA”). On 23 May 2016 the Claimant responded stating that she did not agree to request a PRA. On 24 May 2016 the Defendant issued an application to strike out the claim (this is the first application listed above). On 31 May 2016 the Claimant replied to the defence and issued her own application to strike out the defence (this is the second application listed above). On 20 May 2016 Master McCloud made an Unless Order requiring the Claimant to provide an address for service and comply with the CPR in relation to giving her address. On 27 May 2016 Master McCloud issued a further Unless Order requiring the Claimant to provide details as required for the completion of the PRA form. On 22 June 2016 Master McCloud extended the time for completion of the PRA form to 29 July 2016. On 14 September 2016 the Claimant provided information for the PRA form. On 21 October 2016 Master McCloud struck out the Claimant’s claim for non-compliance with the order requiring PRA information and for failing to cooperate in the listing process.

At the time that she struck out the Claimant’s claim, it appears that Master McCloud was not aware of the Claimant’s letter dated 14 September 2016 providing the listing information needed. It is for that reason that the Defendant consents to this appeal being allowed: there has clearly been some confusion in the Court office, which was not the Claimant’s (or the Defendant’s) fault.

On 9 November 2016 the Claimant appealed against Master McCloud’s order. On 24 November 2016 Jay J granted permission to the Claimant to appeal against the order of Master McCloud dated 21 October 2016. On 5 December 2016 the court notified the parties that the appeal was listed for 21 March 2017. On 7 December 2016 the Defendant wrote to the Claimant and to the Court setting out its position in response to the order of Jay J and inviting the Court to make an order allowing the appeal by consent but asking that the parties’ rival strike out applications should be listed as soon as possible. On 13 December 2016 the Claimant wrote to the court stating that she did not agree to the order proposed by the Defendant. On 16 December 2016 the Defendant emailed the Court and the Claimant suggesting that in light of the Claimant’s refusal to agree to the Defendant’s proposed order, the hearing scheduled for 21 March 2017 should go ahead, in order to hear the rival strike out applications. On 3 January 2017 Warby J by Order agreed to the Defendant’s suggestion and accordingly all matters were listed to be heard together on 21 March 2017 (his order was sealed on 4 January 2017).

As I have recorded, there is no opposition to the Claimant’s appeal. I allow it. This claim is therefore reinstated.

The Defendant seeks an order that the claim should be struck out under CPR 3.4(2)(a) and or (b) on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim and/or are an abuse of the courts process or otherwise likely to obstruct the just disposal of the proceedings. Further or alternatively the Defendant seeks an order for summary judgment under CPR Part 24 on the basis that the claim has no real prospect of success. In the further alternative, if both the previous applications fail, the Defendant applies for an order for further and better particulars of the claim, and an order for security for costs against the Claimant.

The Claimant acts in person, and has drafted the Particulars of Claim (and indeed various skeleton arguments and other documents) herself. I take account of the fact that she is not a lawyer and I make appropriate allowances. The Claimant addressed me at the hearing at some length, and I have before me a considerable body of written material from her. She is a highly intelligent and articulate woman. I am sure that she understands the need for accuracy in the way she puts her case. She is certainly capable of achieving that accuracy in her written work (and in oral submissions).

Paragraph 3 of the Particulars of Claim summarises the claim in this way:

“The Claimant’s Claim arises from the unlawful wrongdoings of the Defendant’s employees, which include: conspiracy to infringe the Claimant’s copyright, conspiracy to steal, theft, breach of contractual obligation of confidence, infringement of copyright under sections 17, 21, 23, 24, and 77 of the Copyright, Design and Patents Act 1988, deceit, and conspiracy to defraud. The Defendant has breached contractual duties. The Defendant has breached statutory duties under section 15 of the Higher Education Act 2004. The Defendant has also violated Articles 1, 6, 8 and 14 of the Human Rights Act 1998 and section 91(2)(f) of the Equality Act 2010.”

The document then runs to 125 paragraphs.

The Defendant suggested at paragraph 12 of its Defence, as an attempt to summarise the claim, that the claim could be understood as based on seven causes of action, roughly split into two categories: (1) claims arising out of the Claimant’s time as a student; and (2) claims arising out of the various complaints made by the Claimant to the Defendant and to the Office of the Independent Adjudicator (“OIA”). In the Claimant’s skeleton resisting the Defendant’s application, the Claimant suggests that paragraph 12 of the Defence amounts to a “false statement”: there are, she says, “actually 7 categories of causes of action with a total of more than 20 causes”, footnoting 31 paragraphs of her Particulars. This small exchange illustrates two things: first, the difficulty of identifying with any clarity what is the mainstay of the Claimant’s case. She raises many arguments and makes many assertions, but it is difficult to identify the central themes of the Claimant’s case with precision, and she resists any attempts to do so. Secondly, it demonstrates the angry tenor of the Claimant’s submissions, both written and oral, as I have witnessed them, and as reflected in the extensive correspondence between the parties in relation to this hearing. There are many instances where she accuses the Defendant of making “false statements” or similar.

My understanding of the background to the Claimant’s claim is this (and I shall attempt a summary, even though the Claimant will doubtless disagree with aspects of it): she commenced as a postgraduate student in oriental studies at the Defendant (St Antony’s College) in 1999. In 2006 her status as a postgraduate student lapsed without the Claimant having gained any qualification (this is an area of complaint: she suggests that she should have been awarded a D.Phil on the basis of the work she had already done and submitted by 2004, see §§ 37 and 101 of the Particulars).

The Claimant’s chosen area of study was the role of intellectuals in the Chiang-nan region of China in the eighteenth century before the opium wars, seen through the eyes of Yuan Mei (1716-98), a well-known poet and scholar of the Qing dynasty. By April 2004, she had completed four papers, one of which was entitled “Were Yuan Mei’s thoughts on women’s poetry revolutionary?”. She submitted two copies of this paper to the Defendant as her “confirmation paper”, alongside her D.Phil thesis outline which listed the four completed papers and a proposal for two further papers (those further two having been requested by her supervisor – that too being the subject of some complaint by her). The title of her thesis was to be “Yuan Mei (1716-98), Intellectual Maverick”.

The Defendant was confirmed in her thesis following an oral examination on 29 September 2004. Only one copy of her confirmation paper was ever returned to her, she says. In the event, the Claimant did not complete her D.Phil (in circumstances which are the source of yet further complaint by the Claimant) and she left the Defendant university in 2006. She says that she continued working on her thesis after that.

In November 2008, the Claimant says that she discovered that her supervisor, Dr David Faure, had published a work in 2007 which, so she says, contains her original ideas taken from her confirmation paper. Specifically, she notes that her supervisor referred in one place to Yuan Mei as a maverick, without crediting her. She subsequently discovered other publications which, she says, used her original ideas and expressions. Eight such publications are listed in the Particulars of Claim (they are listed in the Claimant’s skeleton argument resisting this application at § 18). The Claimant does not provide the dates of all the various publications but says that she discovered their existence from December 2009 onwards.

There are several important points to be made:

The existence of the 8 publications causes the Claimant to conclude that her confirmation paper must have been unlawfully used or released by the Defendant. That is how these various academics and commentators have come to express ideas about Yuan Mei which, she says, were the product of her own original research. She accuses the Defendant of permitting unauthorised access to her confirmation paper or, even, conspiring with unidentified others in the theft of her work and consequent breach of her copyright.

In July 2012, the Claimant initiated a complaint with the Defendant. That was already some years after she discovered the first of these alleged breaches of her copyright.

The Defendant investigated her complaint, which was at that stage framed as a complaint against her D.Phil supervisor, Dr David Faure. On 21 September 2012 the Defendant (by Professor Ewan McKendrick, the Defendant’s registrar) wrote to the Claimant in the following terms (so far as is relevant for present purposes):

“Further to my letter of 14 August, I instituted an initial investigation into your allegations of plagiarism of your ideas. In order to ensure that there was no conflict of interest, I asked a senior academic in the University, who has not been involved in any way in teaching you or assessing your work but is familiar with the relevant era of Chinese history, to consider the allegations you raised.

I have now received the report from the senior academic concerned, who notes that Yuan Mei was widely recognised as unconventional in terms of the Qing dynasty elite. Arthur Waley, Yuan Mei (London, 1956) says ‘there was a streak of impishness, even of impudence in him, which made his enjoy shocking people’ (p. 204). This leads the senior academic to conclude that describing Yuan Mei as a “maverick”, which given the known facts of his life might have been arrived at independently, cannot be seen as a violation of intellectual property rights, or as an act of plagiarism.

Further, a book published in 2005 refers to ‘Yuan Mei’s maverick streak’: Sing-chen Lydia Chiang, Collecting the self: body and identity in strange tale collections of late imperial China (Leiden, 2005), p. 184, and this term is also used in an article published by the same author in 2002, Sing-chen Lydia Francis, “What Confucius Wouldn’t Talk About”: The Grotesque Body and Literati Identities in Yuan Mei’s “Zi buyu”, Chinese Literature: Essays, Articles, Reviews (CLEAR), Vol. 24, (Dec., 2002), pp. 129-160. The senior academic concludes that the use of the specific term “maverick” in relation to Yuan Mei therefore dates to at least 2002.

…

On the basis of the above information, I have therefore concluded that there is no basis for taking forward a more detailed investigation under the Code into your allegations against Dr Faure, nor any basis for forwarding your complaints about Professors Berg and Schmidt to their respective institutions. I therefore regard the matter as closed. I am copying this letter to Professor Herzig, the Warden of St Antony’s and the Proctors’ Office.”

The Defendant then closed its complaint process.

The Claimant was not satisfied by this response, and on 15 January 2013 referred matters to the Office of the Independent Adjudicator for Higher Education (“OIA”). The Defendant provided its complaint files to the OIA. On 13 November 2013, the OIA sent its “Complaint Outcome” to the Claimant. The Claimant made further submissions and the OIA sent a revised Complaint Outcome to the Claimant on 9 January 2014; the recommendations had not changed.

The OIA recommended that the Defendant should pay compensation of £2,500 to the Claimant to compensate for distress and inconvenience by the Defendant’s refusal to name the senior academic who had reported (and whose views were captured in the Defendant’s letter of 21 September 2012), and making other observations. That was as far as it went.

The Defendant adopted the OIA’s recommendation and by letter dated 28 February 2014 offered the Claimant £2,500 and named the academic concerned, a professor in the Faculty of Oriental Studies. The Claimant wrote to the Defendant objecting to this individual. The Defendant replied rejecting the Claimant’s objections and saying the matter was closed. The Claimant again complained to the OIA. After several exchanges of correspondence, on 24 April 2015, the OIA sent a final Complaint Outcome to the Claimant. It was not persuaded to reopen the complaint. The OIA closed the matter finally.

Then the Claimant issued these proceedings. As well as complaining about the theft (as she alleges) of her confirmation paper, the Claimant advances other claims connected with her failure to complete her D.Phil, and with the complaints process undertaken by the Defendant and the OIA (although the OIA is not a party to this claim).

The Defendant’s case is set out in the defence. The Defendant denies the claim in its entirety (§§ 3, 5). The Defendant raises a number of defences. It contends that the claim is time-barred, does not advance any recognisable cause of action, does not assert any facts which disclose the necessary elements of any recognisable cause of action, lacks any real prospects of success, and/or constitutes an abuse of process. The Defence does not plead item by item to the Particulars of Claim on the basis that it would be disproportionate to do so (see § 4).

The Defendant argues that the Particulars of Claim disclose no reasonable grounds for bringing this claim, alternatively, that this claim is an abuse of the Court’s process or would otherwise be likely to obstruct the just disposal of the proceedings (CPR 3.4(2)). In the alternative, the Defendant seeks summary judgment under CPR 24 on the basis that the claim has no reasonable prospect of success.

There are certain parts of the claim which could not succeed in this Court. Those parts of the claim which relate to the Claimant’s failure to complete her D.Phil are academic complaints which this Court could not properly adjudicate. Those parts of the claim which assert failings in the Defendant’s complaints system, or its engagement with the Claimant’s complaint to the OIA, would appear to be outside the jurisdiction of this Court and would not even arguably give rise to a claim for damages. To the extent that such failures are said to constitute breaches of statutory duty, the claims are misguided because the statute relied on (Higher Education Act 2004) does not give rise to any private law rights. The claim under the Equality Act 2010 is bound to fail given that this Court lacks jurisdiction under that Act (the County Court would seem to be the appropriate forum).

The mainstay of the Claimant’s claim is, as I understand it, that the confirmation paper was stolen or copied unlawfully. In relation to that central allegation, the Claimant relies on a number of causes of action. There are two fundamental problems. First, the claim (expressed through a number of causes of action) is not explained in terms that make out a case for the Defendant to answer. Secondly, to the extent that the claim can be understood, it appears to be long out of time.

The alleged theft of the Claimant’s original work is the crux of the Claimant’s case against the Defendant (I think), yet it is not explained in the Particulars of Claim. There are two areas which are particularly lacking in explanation. First, in what way, with specifics, does the Claimant assert that the 8 publications breach her property rights? The Claimant asserts copyright over the contents of her confirmation paper, but she does not set out, with specifics, those parts of her confirmation paper which she says have been stolen and reproduced unlawfully in the 8 publications she mentions. This is central to the Claimant’s case, but it is not set out. The Claimant said to me that she thought this was a matter of evidence, and so she had not pleaded it. But that is a weak explanation which I cannot accept, in the face of 125 paragraphs of detailed pleading, and her evident understanding of the basic proposition that a pleading must enable the Defendant to know what case it has to answer (and the Court to know what case it has to decide). Without these details, the Particulars of Claim are incomprehensible. Secondly, why does the Claimant reject the Defendant’s answer, given in the letter dated 21 September 2012, that hers was not an original interpretation of the work and significance of Yuan Mei, but reflected a general view found in the work of other commentators? This is critical, because if, in truth, the Claimant’s research was not original, then there is no reason to infer – as the Claimant does and as she invites the Court to do - that the 8 publications drew on her work at all. If that inference cannot be proved, the Claimant has no case.

Doubtless there are other aspects of the Claimant’s claim which require explanation. These are the most obvious gaps, at least to me.

This claim clearly requires amendment if it is to proceed. The Claimant, sensing that was the way the wind was blowing at the hearing before me, made an impassioned plea to be able to amend the claim. There are many reasons why I consider that it would be inappropriate to permit her to amend her claim, even if I had before me at this stage a formal application to amend, and a pleading reflecting the desired amendments (I have neither). As a procedural matter, I am not in a position to grant permission to amend, because it is entirely unclear what amendments might be proposed, and whether they would indeed clarify the Claimant’s case.

But in any event, I conclude that this claim cannot proceed because it is abusive in nature and / or otherwise likely to obstruct the just disposal of the proceedings. It is on this point that I rest my decision, and accede to the Defendant’s application. The Defendant relies on three authorities to support its submission that this claim is abusive: Towler v Wills [2010] EWHC 1209 (Comm), Cohort Construction (UK) Ltd v M Julius Melchior (A Firm) [2001] CP Rep 23, and Eatwell v Smith and Williamson [2003] EWHC 2098 (Ch).

Those authorities establish the following propositions:

Those propositions are all relevant in this case:

There are two further considerations in this case which lead me to conclude that this case is abusive. The first is the Claimant’s repeated assertion that the Defendant, and those who represent the Defendant, are dishonest. Within the Particulars of Claim, such allegations appear in terms at paragraphs 93-6 which assert conspiracy to commit theft, theft and deceit by the Defendant. As I have noted, the Particulars of Claim do not set out any cogent basis for these claims, which rest on the Claimant’s assertions without more. Having re-read the Particulars since the hearing, I see that allegations of dishonesty, fraudulent misrepresentation, undisclosed conflict of interest and “egregiously insidious” conduct are sprinkled liberally throughout the Particulars, in each case asserted without any factual or evidential underpinning (although plainly reflecting the Claimant’s personal views). Even beyond the Particulars of Claim, it seems that the Claimant readily accuses those who challenge or resist her case of dishonesty: as an example, the Claimant’s skeleton supporting her own application to strike out the defence (the third application, to which I shall shortly come) illustrates this trait: see § 9, where she asserts that the Defendant’s statement – seemingly innocuous - that the various academics who published the 8 articles are unconnected with the Defendant, is “misleading and false”; and § 10, where she asserts that the Defendant’s characterisation of her claim as relating to a single idea that Yuan Mei is a maverick – an understandable reading of the Particulars which I initially shared until put right by the Claimant – is a “fraudulent misrepresentation”. That skeleton also asserts that the Defendant’s Counsel, Mr Greatorex, has made “untrue and/or misleading statements in his submissions to the Court” and quotes at length from the Bar Code of Conduct (§ 22). Mr Greatorex has conducted this case with absolute professionalism and there is not the slightest reason to suggest that he has misled the Court.

I accept that the Claimant believes that she has been the victim of a conspiracy and that her work has been stolen. I also accept that she is extremely distressed at the loss (as she sees it) of her research work. But the fact is that she is quick to accuse the Defendant and its representatives of dishonesty or worse. These are strong accusations, which are not evidenced in any way. For the Claimant to use the Court process to accuse institutions and individuals of dishonesty, when there is no evidence to support such accusations, is not acceptable. I consider this to be a manifestation of the abusive nature of the Claimant’ claim.

Further, I am invited to have regard to the way in which the Claimant has conducted this litigation to date as further evidence of abuse. There are two examples in the recent past of the Claimant’s unreasonable approach to this litigation. The first was her refusal to fill in the PRA form to get an appointment before the Master. In the end, that caused her claim to be struck out on procedural grounds, which required an appeal, which has in the event been allowed by consent. But the point is this: why did the Claimant not simply provide that information when she was first asked? All that time and effort (and resource) could have been spared, if only she had. Secondly, she refused to dispose of her appeal against the Master’s order by consent and said she wanted a hearing. That was an absurd stance for her to take, even allowing for her lack of understanding of the Court processes as a litigant in person. In the end, the Defendant sensibly suggested that this hearing (originally intended for the appeal) should be used to determine the cross-applications for strike out, which is what Warby J ordered and why we are here. But the process required unnecessary time and resources because of the Claimant’s attitude.

I have read the correspondence attached to the Defendant’s application. I have listened to the Claimant in Court. I am compelled to the conclusion that she has lost all sense of objectivity and proportionality about this litigation. I see no prospect of an amicable outcome to this litigation, no prospect of any narrowing of issues, no prospect of cooperation in the management of the case in advance of trial. The consequence of that for the Defendant will be significant cost, with little prospect of recovering any of its outlay regardless of the outcome at the end of the day. For that further reason, I conclude this claim is abusive.

I turn to the merits of the claim itself. A close analysis of the merits of the claim is not possible, given (as outlined above) that various critical elements of it are not pleaded and thus remain unclear. But it is clear, at least, that the Claimant faces very considerable problems. I have referred to some of those above: there are many parts of her claim which are simply misguided. There are other problems too. The most significant of those is limitation. Her claims for infringement of copyright, breach of contract, and breach of statutory duty, if there is any substance in any of them, would all appear to be subject to a six-year limitation period. She entrusted the confirmation paper to the Defendant as long ago as 2004. She ceased as a student at the Defendant university in 2006. She complains that her Supervisor first breached her copyright by a publication in 2007. Yet she did not issue proceedings until 2015. The limitation period for the asserted failure of custodianship of her work – which lies at the heart of these claims - expired long before 2015. She is out of time.

She also advances various claims under the Human Rights Act. That contains a one year limitation period, which is amenable to extension. No such extension of time is currently sought; and I cannot envisage circumstances where such an application, made so long out of time, in a case such as this, would succeed.

She also advances allegations of dishonesty, theft and conspiracy to defraud. She might say that these are subject to a longer limitation period (although this is not pleaded, I am doing my best to see how she might put her case). But for reasons already discussed, these parts of the Claimant’s case are very weak (to put it mildly). They are based on assertion without evidence. Indeed, I agree with Mr Greatorex that these allegations, based on dishonesty, should not have been pleaded in the first place given that they are so lacking in any factual or evidential basis for the bad faith which is alleged.

The allegations of mishandling of the complaints process might still be in time (the complaint to the Defendant was still ongoing at the end of 2012), but as stated above, I doubt that there is a viable claim in this Court for procedural failure(s) during the complaints process, and it is difficult to see that damages might be due.

I conclude that the merits of the claim are poor. I am unable to say that there are no prospects of this claim succeeding at trial, simply because the Claimant’s pleaded claim is at present unclear. But I can say, on the material before me, that the prospects for this claim are dim. This is a factor relevant to the exercise of my discretion.

I have considered whether some other order, short of striking out, would be more appropriate in the circumstances. But having identified the claim as abusive, and noting that it will continue to be pursued in an abusive manner if I permit it to progress, I conclude that the problems cannot be addressed by any measure less draconian than a strike out.

I therefore grant the Defendant’s application. I strike out the Particulars of Claim under CPR 3.4(2)(b) as abusive or otherwise likely to obstruct the just disposal of the proceedings.

In light of my conclusion on the Defendant’s application, the Claimant’s application becomes irrelevant. I would not have acceded to it in any event: the Defence is a proper and fit response to the Particulars of Claim. The Claimant’s hypothesis in making this application, namely that the Defendant has avoided answering the allegations against it, is misguided. The Defendant has done the best it can to answer the Claimant’s claim in a proportionate manner. It is the Claimant’s claim that is unclear, not the Defendant’s response to it.

This claim is struck out.

The parties are at liberty to make applications on consequential matters in writing within 7 days following the formal hand-down of this judgment (for which the parties need not be present). If such an application is made, the opposing party will have another 7 days to respond to it in writing. All applications and submissions are limited to two sides of A4. I will determine any such consequential applications without a hearing.