I have written twice before about the libel action Keith Burstein took concerning a newspaper review of his opera Manifest Destiny. In Associated Newspapers Ltd v Keith Burstein [2007] EWCA Civ 600 (22 June 2007) the Court of Appeal held the newspaper’s defence of fair comment must inevitably succeed, and made an order dismissing Burstein’s claim. He failed to obtain leave to appeal to the House of Lords, so he applied to the European Court of Human Rights in Strasbourg. I said at the time that I fully expected the ECHR to dismiss the case as manifestly ill-founded. Now comes news that my crystal ball was functioning well: the ECHR has indeed declined to consider the case, much to Burstein’s inevitable chagrin.

I haven’t been able to track down the ECHR decision on admissibility, so if anyone out there has it and could send it to me, I would be very grateful indeed.

Further to my two previous posts concerning student challenges to degree classification, there is a piece in this week’s Times Higher Education on the judicial review proceedings taken by Andrew Croskery challenging his degree results in Queen’s University Belfast. The piece contains some interesting reactions to the challenge [with added links]:

Grievance poses academy ‘threat’

… Bahram Bekhradnia, director of the Higher Education Policy Institute, warned that if the case were successful it could unleash a wave of similar challenges. “Of course it is important that universities do right by students. But if a student feels they are getting inadequate supervision, contact or anything else, they should deal with it up front and at the time. Otherwise the floodgates will be opened and it will be impossible to judge genuine cases from chancers,” he said.

Roger Brown, professor of higher education policy at Liverpool Hope University, described the case as a battle between academic authority and the marketisation of higher education. He said a ruling in favour of Mr Croskery would be “disastrous” because it would undermine universities’ academic authority. He noted that legal challenges of college grades were quite common in the US but said British courts had taken the view in similar previous cases that universities were in the best position to make academic judgements.

Richard Langley, head of litigation and dispute resolution at law firm Bircham Dyson Bell, said Mr Croskery would have an “uphill struggle” to prove that the university had acted irrationally in not increasing his grade. “It involves a very subjective judgement and it is impossible to determine what he would have got with different supervision,” he said. He also warned that, at best, the judge would require the university to reconsider its decision, which it may uphold. …

A perennial problem in academic writing is the lack of feedback along the way. Academics can run ideas by other academics and in class; works in progress can be presented at research seminars; and published papers can provoke published replies. In response, the original idea can be refined, and the process of iterative development can continue. One way to short-circuit the process is to publish ideas in early draft form on blogs and similar sites (and many of the posts on this site are well on their way to incorporation into academic articles). Conor Gearty (pictured right) has come up with a really interesting way to go further, a collaborative means by which he can garner, engage with, and incorporate significant online feedback on his writing during the course of the writing.

Moreover, what he will write by this means is very important: a book entitled The Rights’ Future in which he will consider nothing less than the future of human rights. In his view, they are

the only potentially radical and genuinely universal idea available to us in this post-socialist world of fear, money and lost souls. Too important to be left to lawyers but too subversive to be handed over to the politicians alone, human rights need the intellectuals, the workers and the streets if their model of a new kind of society has any chance of beginning to be built.

His collaborative process will involve “the intellectuals, the workers and the streets” in the writing of The Rights’ Future. Beginning this evening with a RIGHTS’ MANIFESTO on The Rights’ Future website, each week for the next three months or so, Gearty will publish a chapter of the book online in the form of a 2,000 word essay, which will probe the history of human rights, address their present state in the world and map out some of the possible futures that await this morally important but highly contested phrase. Each essay will be open to online discussion and debate; at the end of the week, Gearty will summarize the responses and the impact they have had on his thinking, and he will adapt and improve his original thoughts on foot of this engagement. The process will begin again the following Monday with the next 2,000 word essay.

This seems to me to be a fantastic use of the internet, replacing the loneliness of the cloistered ivory tower intellectual with the collaborative wisdom of crowds. It doesn’t quite go as far as sites like Wikipedia, but it is an excellent means to obtain real-time interaction with people who are genuinely interested in the issues. I wish I’d thought of it first; I will certainly be participating; and, depending on the way the site and debate develop, I will probably cross-post some of it here. Moreover, some version of this model will doubtless become a familiar means of writing in the future.

I’ve previously blogged (1 | 2 | 3) about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. It was a colourful case, in which interesting unjust enrichment issues arose, but I was unable to say more on that aspect of the case as no written judgment was made available at the time. However, it has recently been uploaded to the Courts Service judgments database. In Presho v Doohan [2009] IEHC 619 (17 July 2009) Murphy J explained what happened to the elusive unjust enrichment issue:

6. Unjust enrichment
While not pleaded, the court considered, in addition to the circumstantial evidence, whether and if so, to what extent it was proper to consider restitution either as a quasi contractual or equitable remedy. The court allowed an opportunity to the plaintiff to consider an amendment. No such amendment was made, though the defendants made written submissions.

The court does not propose to address the matter.