Confidence and Contract - Ukoumunne v The University of Birmingham

Author Brianboru100 Licence CC BY-SA 3.0 
Source Wikipedia University of Birmingham

Intellectual Property Enterprise Court (HH Judge Hacon) Ukoumunne v The University of Birmingham and others [2020] EWHC 2927 (IPEC) (4 Nov 2020)

This was an application by the University of Birmingham and three of its academics to strike out claims for breach of confidence and breach of contract that had been launched against them by one of their graduate students. These are the causes of action that survived an earlier strikeout application which I discussed in Copyright - Ukoumunne v The University of Birmingham on 20 Feb 2020. The claim had been for breach of confidence, breach of contract, copyright infringement, professional negligence, racial harassment, bullying, sex discrimination and loss of earnings.  The claimant had complained that the University's lecturers had plagiarized her work in a book and articles that had appeared in one of the sixth defendant's publications. Recorder Michaels struck out most of those causes of action in Ukoumunne v The University of Birmingham and others [2020] EWHC 184 (IPEC) (5 Feb 2020).  

The learned recordee thought that the breach of confidence and contract claims might have merit but they had not been pleaded properly.  Because the claimant was and at all times has been a litigant in person she did not strike those claims out altogether.  Miss Michaels gave the claimant an opportunity to amend them and provide proper particulars by 18 March 2020 failing which those causes of action would also be struck out.  I quoted the main terms of her order in my case note of 20 Feb 2020.  It will be noted that the order stayed the claim against the sixth defendant and dismissed all claims against the fifth defendant altogether.

According to Judge Hacon, the claimant served a document headed "Further Particulars" on 18 March 2020. The document referred to certain documentary evidence which the first to fourth defendants asked to see. The judge noted that the request had for disclosure had not been satisfied.  Believing that the complainant had not remedied the defects in her statement of case sufficiently, the University and the academics applied to strike out the remainder of her claim.  The application was to have been heard on 15 Oct 2020 but the claimant complained of COVID-19 symptoms that required her to isolate. She produced a medical certificate that confirmed that she was ill though apparently not from coronavirus, Because of the claimant's indisposition Judge Hacon decided to deal with the application in writing and directed the parties to lodge written submissions.

Judge Hacon noted at para [26] of his judgment that the claimant had summarized accurately and succinctly the issues in dispute in her submissions:

"1) Is the work of the contained in the Claimant's chapters, draft thesis and submitted thesis original?
2) Can the work be said to have elements that give rise to a duty of confidentiality?
3) Did the supervisors have access to the work and make this work available to Dr Warmington/other parties in breach of their duty of confidence?
4) Was the work subsequently misused?
5) What were the means by which any breach of confidentiality occurred?
6) Can any similarities in the works that allegedly used the Claimants work be attributed to mere coincidences that may arise when scholars work in similar fields?"

The judge identified the central issues as those in subparagraphs (2) and (6) which were to some extent related. 

In support of her argument on whether the work had elements that gave rise to a duty of confidence, the claimant referred to the following letter from the third defendant which was sent on or about 16 Nov 2011:

"This is a very interesting piece of writing and it comes out of a valuable project. The conviction that there are lessons to draw from past experiences of education, and particularly activist forms of education, is a refreshing one. More importantly, there is lots of empirical evidence in this first draft to support the conviction. In some sections, there are clear new contributions to knowledge based on the archival or published sources. Taken together (as we have said before) the project has the potential to make a substantive contribution to the field of education by bring (sic) together, in a new and interdisciplinary fashion, education and post colonial research. So there is much that is very promising here."

Judge Hacon characterized that letter as "an appropriately encouraging message from a supervisor to a student" but did not think that the letter warranted a trial on the possibility that the third defendant might have had in mind one or more of the matters alleged to have been used by him and/or by his colleagues. Even if he did, it did not as a matter of course follow that the claimant would succeed in her claim.

In the document that the claimant had supplied on 18 March 2020 she had identified the following items of information as confidential:

"1. The original theme and proposition that there is a 'hidden history' and hidden voices of the activism and the contribution to an intellectual history of black British people in the field of education. That has not previously been acknowledged or recognised in Anglo-American scholarship.
2. An original contribution to the field was to note the absence of black intellectual and activist contributions to the formation of a black intellectual history in the historical record and in the scholarship of historians and scholars in history of education. This history has been overlooked and marginalised within British academia.
3. Arguing and delineating a genealogy of black intellectuals in respect of the above substantive whose work is not recognised by the academy as intellectuals.
Explicating that original theme involved examining the work of numerous activists and sketching out the demonstrating their intellectual contributions and place within the genealogy of Black British intellectuals in education that had been proposed in the thesis.
4. An original proposition and theme was that the work of black intellectuals and activists could best be explicated an understood as inextricable relationship with activism and intervention in the areas of supplementary schools and black education movements and interventions.
5. This original argument was supported with evidence with an original proposition demonstrating the relationship of black intellectual activists working in the field of education to the historical activities and intellectual strands in fields such as literature in the cultural production of Black British people.
6. This original argument was further examined by locating Black British intellectual culture within educational movements with a wider African diasporic intellectual history by forging a link between the African-American Black Power and Caribbean movements for example Garveyism and postcolonialism in literary and cultural production linked to black consciousness.
7. Establishing that a further absence obtained in the failure of the academy to acknowledge the intellectual work of black activist/ intellectuals in scholarship in the U.K. This absence gave rise to a lack of recognition of black women as intellectuals and activists. To that end to elaborate on the central thesis, there is a focus on black British women scholars and activists in the draft chapters and draft thesis that brings them into a Black British activist/intellectual tradition.
8. The original deployment of a multidisciplinary framework to explicate black activism in education using sources that have not been recognised as having scholarly value and relating these to established and recognised texts.
9. The original deployment of critical and discourse analysis in reading texts produced by black British intellectual activists held in archives or that had previously not been recognised as data and information that had a value as scholarly texts in their own right.
10. The original focus on examining these texts by black British activist intellectuals as critical and scholarly contributions to knowledge and rectifying the ways in which they have been overlooked and marginalised within the discipline of Education, Cultural and Sociological and Historical Studies and their overlapping disciplines including but not exclusive of History of Education and the Sociology of Education.
11. The original adoption of a multidisciplinary theoretical approach to explicate black British activism and intellectual interventions in post war Britain drawing on post-colonial theory and Cultural Studies and its potential to initiate a new field of enquiry in the field of Education Studies."

The learned judge considered each of them between paragraphs [33] to [35]:

"[33] ........ The first, second and third consist of the idea that the contributions of black British people in the field of education have been overlooked and marginalised to date. That is an opinion. It may be a very valid one but it was not confidential information. Increasingly over recent decades the view has been persuasively expressed that the contributions of black individuals to many aspects of life in this country have been either underestimated or disregarded altogether, particularly the contributions of black women. Any person could have expressed the opinion that this has been the case in relation to any aspect of the nation's life. It would not have been an expression of confidential information
[34] The fourth, fifth and sixth items likewise consist of an opinion, which I take to be the idea that there has been a lack of appreciation on the part of commentators regarding the significance of ethnic educational movements.
[35] The seventh to eleventh items return to the idea in the first, second and third, with the added feature in the seventh item that the contributions of black women, especially, have not been recognised."

He concluded at [36] that none of these opinions constituted information with the necessary quality of confidence. Even if they did they did not appear to have been plagiarized.  Such opinions might well have been reached independently by other scholars in the field.   He struck out the confidence claim because he could see no consequences in which it would succeed.

The contractual duty that the University was alleged to have breached was an obligation to investigate allegations of misconduct by its faculty.  Assuming that there was such a duty the judge held that the failure to carry out the investigation had not harmed the claimant because of the findings of Miss Michaels on the copyright infringement complaint in February and Judge Hacon in the current proceedings.  Even if she could make out a case there would be no remedy.  There was no advantage in transferring the claim to the Queen's Bench Division as the claimant had requested,   He, therefore, struck out that claim too.   That judgment disposed of all issues in the action.

Anyone wishing to discuss this article, strikeouts and summary judgment or the law of confidence and contract may call me on 020 8404 5252 during normal hours or send me a message through my contact form.


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