Nadim Al-Hasani v Ronald Nettler
| Jurisdiction | England & Wales |
| Judge | Master Henderson |
| Judgment Date | 21 March 2019 |
| Neutral Citation | [2019] EWHC 640 (Ch) |
| Docket Number | CLAIM No. IL-2018-000124 |
| Court | Chancery Division |
| Date | 21 March 2019 |
[2019] EWHC 640 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building,
Fetter Lane,
London, EC4A 1NL.
DEPUTY Master Henderson
CLAIM No. IL-2018-000124
The Claimant in person, Oliver Isaacs (instructed by Bower & Bailey LLP), counsel for the First Defendant, Zoe Gannon (instructed by Bevan Brittan LLP), counsel for the Second Defendant
Hearing date: 1 st November 2018
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
DEPUTY Master Henderson
Introduction
This is my judgment on 5 applications which were listed for hearing before me at 11.00 on 1 st November 2018.
In chronological order of their time of issue, the applications were as follows:
2.1. An application notice dated 17 th September 2018 by which the Claimant applied under CPR 3.3(5)(a) to set aside a costs order made against him by Chief Master Marsh on 4 th September 2018.
2.2. An application notice dated 19 th September 2018 by which the Claimant applied for permission to amend his Particulars of Claim pursuant to CPR 17.1( 1) or (2) in the form of an attached document (“the Proposed Particulars”).
2.3. An application notice dated 24 th September 2018 by which the Second Defendant applied for an order striking out all or any of the Claimant's claims and/or summary judgment against the Claimant.
2.4. An application notice dated 25 th September 2018 by which the Claimant applied for summary judgment pursuant to CPR 24.2(ii) against the Defendants.
2.5. An application notice dated 9 th October 2018 by which the First Defendant applied for an order striking out all or any of the Claimant's claims and/or summary judgment against the Claimant.
At the hearing, in response to questions from me, the Claimant explained that the only claim which he wished to make in these proceedings was a claim for infringement of copyright. The infringement is alleged to have been effected by the First Defendant publishing as his own name in 1998 and/or 1999 a research paper of the Claimant's. A major issue in respect of the applications before me is whether the Claimant has a real prospect of establishing that s.32 Limitation Act 1980 applies so as to cause the ordinary 6 year limitation period for claims for infringement of copyright to have started less than 6 years before these proceedings were issued.
A chronology of substantive events with various comments by me is as follows:
4.1. The Claimant studied Arabic at the School of African and Oriental Studies (“SOAS”) in London in the early 1990's. As part of his degree at SOAS he wrote a research paper (“the research paper”) on Ibn al-'Arabi's concept of ontological/universal Mercy. This was entitled “Ibn al-'Arabi's Concept of Mercy; the Chapter on Zakariyya”. The Defendants do not admit that the Claimant wrote such a paper, but for the purposes of these applications no real doubt has been thrown on that, and the remainder of this judgment is written on the footing that the Claimant has at least a real prospect of establishing that he wrote such a paper.
4.2. In 1993 the Claimant was offered a place by the Second Defendant to study for a D. Phil in medieval Arabic Philosophy. The Claimant says that the offer was conditional on his obtaining a 2:1 from SOAS and completing the research paper. On that footing, both of these conditions must have been satisfied because the Claimant was accepted on to the D. Phil programme at the Second Defendant.
4.3. Upon the Claimant's admission to the Second Defendant in 1993, the First Defendant was appointed his academic supervisor.
4.4. The Claimant says that in the first month of his supervision by the First Defendant (so in or about October 1993) the First Defendant asked him for a copy of the research paper. The First Defendant says that he has no recollection of the research paper.
4.5. In 1994 the Claimant was unable to secure funding for the second year of his D. Phil. He asked the Faculty for temporary leave in order to secure funding. His request was granted.
4.6. In 1998 the Claimant obtained funding and says that his request to resume with his D. Phil was granted by the Faculty in 1998.
4.7. By a letter dated 24 th September 1998 the Claimant was accepted on to an M. Phil course in Medieval Arabic Thought at the Second Defendant. The first three sentences of the first paragraph of that letter read (I take this as hearsay evidence from the judgment of Gage J in the proceedings which the Claimant brought against the Second Defendant for judicial review in 2000; bearing in mind that statements in the judgment which are statements of fact are admissible as hearsay evidence but that statements based on the Judge's exercise of his judgment are of no weight as such in these separate proceedings unless they give rise to issue estoppels or arguments as to abuse of process):
“I am pleased to inform you that the Board of Faculty of Oriental Studies has accepted you for the M. Phil course in Medieval Arabic Thought, under the supervision of Dr Zimmerman, with effect from Michaelmas Term 1998. You will be required to pass a qualifying examination in the course of your first year.”
4.8. The Claimant says that “on his return to the Faculty” the First Defendant unexpectedly asked him to consider embarking on a 2 year taught Master's course (M. Phil) in medieval Arabic philosophy. If the Claimant is correct as to this, he must have returned to the Faculty before the 24 th September 1998 letter was written. The Defendants agree that in 1998 the Claimant embarked on a 2 year M. Phil course. The First Defendant says that he had no further involvement with the Claimant after 1995. There is therefore a dispute of fact as to whether the First Defendant asked the Claimant to consider embarking on the M. Phil course. The Claimant goes further and alleges that his consent to the change of course was “only procured through duress whereby the First Defendant claimed he could not continue to supervise the Claimant until or unless he first embarked on a 2 year M. Phil course” (paragraph 25 of the Proposed Particulars).
4.9. The Claimant says that in 1998 the First Defendant published in his (the First Defendant's) own name, the research paper or part of it as an article in a book for commercial purposes, without permission or authorisation from the Claimant. In his existing particulars of claim the Claimant alleges two publications by the First Defendant of the research paper; one in 1998 and one in 1999. The First Defendant “denies the Claimant's claim in its entirety” (paragraph 1 of his Defence) and “[puts] the Claimant to proof that he has infringed any copyright in the research paper (paragraph 5 of his Defence). The First Defendant does not specifically state whether or not he published the allegedly infringing publications.
4.10. The Claimant confirmed acceptance of the 24 th September 1998 offer by a letter dated 29th September 1998.
4.11. In the judicial review proceedings the Claimant stated that, after the M. Phil course started, his supervisor, Dr Zimmermann, first told him that he would not have to sit a qualifying examination in Arabic, but subsequently during the Trinity Term 1999 told him that he would have to do so. The Michaelmas, Hilary and Trinity terms at Oxford University and at some other educational institutions are the approximate equivalents of, respectively, autumn, spring and summer terms at more modern institutions.
4.12. There were two other students on the M. Phil course. On 10th June 1999 all three sat the examination. The examination was invigilated by Dr Zimmermann and involved translating four passages of text from Arabic into English. One of the passages had not been covered in classes held by Dr Zimmermann. This fact was pointed out to Dr Zimmermann and, in the course of the examination, he provided some other text. At a meeting between the Claimant and Dr Zimmermann on 17th June 1999 Dr Zimmermann told the Claimant that he had failed the examination. There was a dispute about what was said at that meeting and what was said at a subsequent meeting on 24th June 1999. The Claimant states that Dr Zimmermann, in rather unpleasant language, tried to discourage him from continuing his studies on the course.
4.13. The Claimant wrote to Professor Thomson, Director of Studies at the University's Oriental Institute, on 5th July 1999. He asked to be permitted to continue the course without taking any further examination. He complained that the examination of 10th June was fundamentally flawed. He also sought the assistance of the Dean of his college and on 27th July 1999 wrote a letter to the University Proctors.
4.14. As a result of this action and the actions of others involved two things happened. First, the Claimant's papers were re-marked by Professor van Gelder. Again the Claimant was failed. Second, he was invited to take another examination on 24 th September 1999. The Claimant sat this examination which was assessed by Professor van Gelder and Professor Jones. Their conclusions are set out first in a letter from Professor van Gelder to Professor Jones dated 27 th September 1999. That letter contains the following paragraph:
“It is my impression that compared with the first test there is some improvement. Yet I am not at all certain that the level of Arabic that he displays is sufficient for qualifying for entering on the M. Phil, which is his intention, as I was given to understand. The Grey Book ( 1998, p.619) speaks of a qualifying examination for the course ‘Medieval Arabic Thought’ which ‘shall be of such a nature as to satisfy the board that the candidate is capable of using Arabic...
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