Malcolm v University Of Oxford Chancellor, Masters & Scholars

An undertaking in a consent order prohibiting a university and its servants and agents from publishing derogatory material is construed according to ordinary legal meanings and the undertaking’s context. A servant is a person employed under a contract of service. An agent is a person acting under an obligation of agency in relation to the relevant publication activity. The undertaking does not extend to every employee, office-holder or person who can act for the university in other circumstances. A publication made in a private capacity therefore does not engage the undertaking.

The claimant had previously established a contract concerning publication of his philosophical work and, in 1992, the parties entered into a consent order containing an undertaking that the University, its servants and agents would not publish or solicit derogatory material about him or his work. The undertaking also required requests to be made to specified individuals, including Dr Alan Ryan.

In 2001, Dr Ryan wrote a critical letter about the work which was published in The Times Higher Education Supplement. The claimant alleged breach of the consent order. Lightman J granted summary judgment for the University, holding that Dr Ryan was not its servant or agent when writing the letter. The claimant sought permission to appeal. The central issue was the meaning and application of servants and agents in the undertaking.

Application refused. Lord Justice Aldous concluded that, even if permission were granted, the appeal would certainly fail.

1. The consent order was directed to the corporate University. The words servants and agents had to be given their ordinary meanings in the context of the undertaking. A servant meant a person employed under a contract of service. An agent meant a person entrusted to perform a task on behalf of the principal, in this context involving statements, letters or articles about works.
2. The reference to agents did not include every agent of the University, such as persons acting for it in unrelated transactions. Likewise, the fact that a person was employed by the University did not itself bring every publication within the undertaking. The person had to be acting in the relevant capacity as the University’s servant or agent.
3. Dr Ryan was not employed by the University and was not employed to write statements or articles about works. There was no evidence that he acted as the University’s agent when writing the letter. His university appointments, and his ability to act as the University’s agent in other circumstances, did not alter that conclusion. He wrote in a private capacity.
4. Dr Ryan’s identification in the consent order did not make him a defendant or extend the undertaking beyond the agreed categories of servants and agents. The construction also left academic criticism by persons acting independently of the University outside the undertaking.

The order was: application for permission to appeal refused.

1. Court of Appeal (Civil Division)—on 1 March 2002, Lord Justice Aldous refused permission to appeal, holding that the proposed appeal would certainly fail: [2002] EWCA Civ 331.
2. High Court of Justice, Chancery Division—Lightman J granted summary judgment for the University on 24 January 2002 and refused permission to appeal.