QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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KHALID MAHMOOD ANSARI |
Claimant |
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- and - |
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DR TIMOTHY KNOWLES MANCHESTER METROPOLITAN UNIVERSITY MS VIKTORIJA ZILINSKAITE VILNIUS UNIVERSITY |
Defendants |
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Adrienne Page QC (instructed by Addleshaw Goddard) for the First and Second Defendants
Hearing dates: 4 & 23 October 2012
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Crown Copyright ©
Mr Justice Eady :
"MEMO
PARTICIPANTS
1. Jurgita Sekliuckiene, project expert, Vilnius University (VU);
2. Roma Adomaitiene, lecturer on quality, VU;
3. Viktoria Zilinskaite, project coordinator and expert, VU.
During the visit to Manchester Metropolitan University (MMU), UK, a number of issues related to design and content with respect to developing the Master's Programme listed above were reviewed. The programme consisted of a number of predetermined activities; opportunities to attend lectures, seminars and workshops; opportunities for meetings with colleagues to discuss subject-related issues; and opportunities to use the Faculty's library resources for independent study.
Having attended the lecture and seminar on service quality in tourism with Khalid Ansari 3-4 December 2007, the following was observed:
1. The lectures lack tourism/hospitality/industry relevance;
2. The lecture notes and references were obsolete;
3. The content of the lecture was more suitable to undergraduate level rather than postgraduate;
4. The information provided in the slides had not been properly updated (during the lecture the information on ISO standards 9002 and 9003 was presented as if the standards were still applicable, but the latter standards had been merged with 9001 seven years ago);
5. The content of the lecture was more pertinent to product quality rather than service quality (e.g. 8 of Garvin's dimensions are applied to products, rather than services);
6. The demonstrated slide material was inconsistent both in content and direction;
7. The demonstrated teaching methodology was poor (e.g. lack of communication with students, no dialogue or debate promoted).
Based on the above, the Lithuanian team identified an urgent need to expand the team of MMU experts to develop the service quality module by adding David Briggs to the team. D Briggs demonstrated an operations management lecture with the perspective on service quality, which ties into the new Master's Programme, the 2nd semester of which focuses on operations management. The VU team were impressed by the direct industry relevance of D Briggs teaching material.
K Ansari had been requested to supplement and correct the service quality module in September 2007, but no additional information had been received. Also, K Ansari did not communicate properly and effectively with the Lithuanian counterpart Dr R Adomaitiene on the issues of improving the module. Therefore, the ability and qualifications of K Ansari may be treated as insufficient for delivery of the module materials required.
The drawbacks on the Events Management module developed by K Ansari are the same as mentioned above for service quality module (no lecture notes, inconsistent slide materials, poor referencing). Therefore, VU team has identified an urgent need to expand the team of MMU experts to develop this module by adding Catherine Feeney, Senior Lecturer, [of] the Faculty of Food, Clothing and Hospitality Management.
On a personal note, K Ansari was considered as overpowering to a point of being arrogant; pompous and dictatorial in his conversations to the Lithuanian counterparts; he was observed making false promises with respect to this project and possible future projects that are not his responsibility; there was clearly an inability to complete tasks. When asked by J Sekliuckiene to provide scientific articles by K Ansari – it was obvious that he has no publication record.
During the visit to Lithuania 6-7 August, K Ansari was observed excessively abusing alcohol on two successive days of the visit and he was not able to concentrate on the work to be completed. K Ansari talked down to the Lithuanian counterpart developing Strategic Management Module and requested T Knowles to simplify the material provided to VU, doubting the qualifications of Lithuanian counterparts (fortunately, T Knowles ignored that request). Furthermore, K Ansari behaved sexually inappropriately, three times inviting the Lithuanian Project Coordinator V Zilinskaite for a 'night cap' in front of other people present at dinner. This is unprofessional, unethical and is regarded as sexual harassment. He has compromised the excellent work of numerous people at MMU which is unacceptable. He has also compromised the MMU and VU relationship with his actions.
Given the above, VU experts find it very difficult to work with K Ansari both professionally and personally.
The issues related to a range of aspects concerning the Strategic Tourism Management module have been clarified between Dr J Sekliuckiene and Dr T Knowles. Dr Knowles's support in these matters is appreciated and particularly his willingness to share teaching material.
The issues related to International Tourism Policy and IT in Tourism will be finalised during the visit of Dr T Knowles to Lithuania in January 2008.
The central request from VU team is to find best lecturers for the delivery of pilot module, since this will be the major advertising exercise of the new Programme to the Lithuanian tourism industry. MMU has a number of highly qualified lecturers in tourism/hospitality industry both from practical and theoretical perspective.
Memo developed by
Viktoria Zilinskaite
Project coordinator and Expert"
a) being a sex pest;
b) being an alcoholic;
c) being unqualified for his lecturing post at the university;
d) being guilty of deception in apparently buying his qualifications;
e) making false promises to external departments of MMU;
f) professional incompetence;
g) being arrogant and patronising in his manner; and
h) telling lies.
i) that as a matter of legal construction the settlement operated as a release of the cause of action in respect of which the Claimant was seeking to make the First Defendant liable as a joint tortfeasor with the Third Defendant; alternatively
ii) if, properly construed, the settlement did not involve a release of the cause of action, the Claimant has nonetheless, through the settlement, received full satisfaction and/or has no real prospect of recovering further damages at trial against the First and Second Defendants (at least no more than a nominal sum); alternatively
iii) in the wake of the settlement it has become an abuse of process for the Claimant to persist in his claim for damages against the First and Second Defendants in respect of the Vilnius Memorandum.
"Payment of the above sum, together with agreement of the attached Statement in Open Court, is made in full and final settlement of the Claimant's claims herein against the Fourth Defendant and any other claims the Claimant has or may have against the Fourth Defendant resulting from publication of the 'Vilnius Memo' referred to in paragraph 10 of the Particulars of Claim and the email sent by the Third Defendant on 3 February 2008 referred to paragraph 16 of the Particulars of Claim howsoever arising including interest and costs."
"Lord Aldington undertakes to accept the said sum in full and final settlement of the judgment and orders referred to above and any liability howsoever arising before today's date which would involve any payment by you directly or indirectly to Lord Aldington."
Despite this, the court held that it was necessary to imply a reservation of Lord Aldington's right to enforce the judgment against Count Tolstoy. It was said that any other construction would offend against common sense: per Neill LJ at p.594.
i) The settlement afforded the Claimant the opportunity of a public retraction and apology and "substantial damages" from the employers of the only person identified as being the author of the Vilnius Memorandum.
ii) There was no public suggestion, either in the statement in open court or otherwise, giving any indication that anyone other than Ms Zilinskaite might have been responsible for the Vilnius Memorandum.
iii) The announcement by the Claimant in the statement in open court that he regarded his reputation as having been vindicated in respect of the Vilnius Memorandum would give reasonable readers the impression that the vindication was in no way subject to any qualification in respect of a co-author.
iv) These libel proceedings have thus achieved the primary purpose of such litigation: any publishees of the Vilnius Memorandum would conclude in the light of the statement in open court that the vindication had been complete.
v) A contrast is drawn with the Aldington case, in the sense that a reasonable person in this instance might well conclude that there had been "an entirely satisfactory and conclusive settlement of the cause of action": in other words, there were no loose ends of the kind remaining after the settlement with Mr Watts.
vi) Since all that had been publicly revealed about damages was that they were "substantial", ordinary readers would assume that a sum had been negotiated which adequately reflected, in the Claimant's eyes, any restoration of his reputation that was necessary following the publication.
vii) Reference was made to a recently disclosed document, showing that the Claimant had reported to Mr Jeffery (one of the principal publishees of the Memorandum and of the alleged slander of 14 March 2008) that he had recovered "substantial legal costs and damages": this was evidence of how the settlement had provided the Claimant with the means to promote the message of vindication to the recipients of the original Memorandum.
viii) In any event, it is suggested that the sum of £12,500 was neither unrealistic nor inadequate in the context of a pre-trial settlement in respect of a very limited publication.
ix) In his communication with Mr Jeffery, the Claimant had described the sums recovered as a result of the settlement as "very large". It was consistent with the view taken by his legal advisers at the outset of the claim, since the maximum damages claimed in respect of all four causes of action pleaded was said to be £50,000 (although later increased by way of amendment).
"8. This conclusion was reached by a number of steps which included the following:
(1) Proof of damage is an essential step in establishing a claim in tortious negligence ([2000] 1 AC 455, 472A-C).
(2) Such a claim is a claim for unliquidated damages (473D, 474A).
(3) Such a claim is liquidated when either judgment is given for a specific sum or a specific sum is accepted in a compromise agreement (473D, 474B, 474E).
(4) A judgment on such a claim will ordinarily be taken to fix the full measure of a claimant's loss (473E, 474B).
(5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (473E, 474E-F): whether it does so or not depends on the proper construction of the compromise agreement in its context (473B, 476E, 474H).
(6) On the facts of A's case, the sum accepted from B in settlement was to be taken as representing the full measure of A's loss: it followed that A's claim in tortious negligence was extinguished and he had no claim which could be pursued against C (476E).
I do not think the first four of these steps are controversial. The fifth proposition may perhaps have been stated a little too absolutely in Jameson, but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C.
9. In considering whether a sum accepted under a compromise agreement should be taken to fix the full measure of A's loss, so as to preclude action against C in tort in respect of the same damage, and so as to restrict any action against C in contract in respect of the same damage to a claim for nominal damages, the terms of the settlement agreement between A and B must be the primary focus of attention, and the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind:
(1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker.
(2) An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of the Contracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party.
(3) The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A's loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress.
(4) While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation.
(5) If B, on compromising A's claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise.
In my consideration of this matter I have gained much assistance from the clear and illuminating judgments of the New Zealand Court of Appeal in Allison v KPMG Peat Marwick [2000] 1 NZLR 560 and from the perceptive critique of Jameson in Foskett, The Law and Practice of Compromise 5th ed, (2002), pp 119-125, paras 6-42-6-57."
"Mr Turner suggested that the right inquiry was whether the parties intended that Count Tolstoy should continue to have the right to have recourse to Mr Watts. With respect this question seems to me to give the wrong emphasis to any possible contribution proceedings. The settlement was concerned with the rights which Lord Aldington had against Mr Watts. Though it is legitimate to imply into such an agreement a term as to the reservation of rights against Lord Tolstoy, there is no basis for making any implication as regards possible rights of contribution by Count Tolstoy."
As Steyn LJ observed, ibid, " … the consequence that the unreleased tortfeasor may bring an action of contribution against the released tortfeasor must be faced". Thus, as Lord Bingham suggested in Heaton, if the Fourth Defendant wished to protect itself against a possible claim for contribution, it should have stipulated for an undertaking or indemnity.
"That kind of inquiry, if it were to be permitted, could lead to endless litigation as one concurrent tortfeasor after another was sued on the basis that the sums received by the plaintiff in his settlement with those previously sued were open to review by a judge in order to see whether or not the plaintiff had yet received full satisfaction for his loss. Different judges might arrive at different assessments of the amount of the damages … The principle of finality requires that there must be an end to litigation."