cearta.ie – Page 94 – the Irish for rights

Making the grade

16 October, 201031 January, 2013

| Andrew Croskery, Grading and Marking, Litigation, Universities

Via the incomparable 9th level Ireland blog, I (rather belatedly) learn that Andrew Croskery, a graduate of Queen’s University Belfast who has taken judicial review proceedings to challenge his degree results (on which I have previously blogged: 1, 2, 3, 4; and there is also an excellent post Jason Smith), might have got a result during the week. According to the BBC, QUB has agreed to review his grade. It seems that he was only 0.5% off obtaining a 2:1 in his degree, and in his judicial review proceedings, he claimed that if he had received better supervision he would have achieved that 2:1. On Tuesday, the High Court granted a three-week adjournment to allow QUB to review his degree classification on the alleged grounds of inadequate supervision and procedural irregularities. QUB told the Court that it made the proposal without prejudice in a bid to ease his concerns. Moreover, the Belfast Telegraph reported that if he is still unhappy with the outcome, he would now be able to appeal his results. As Education Law Blog points out

This appears to be a successful outcome for the student, as the provision of a review is about as much as he could have expected to achieve by way of his legal proceedings.

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Legal Issues for the Third Level Sector

15 October, 201017 October, 2010

| No Comments

| Universities

I spent the morning at a seminar on Legal Issues for the Third Level Sector hosted by the Arthur Cox Technology & Intellectual Property Group. The morning was chaired by Rob Corbet.

First up were Claire McGrade and Karen Killoran discussing “The Arbitration Act 2010 and Other Forms of Alternative Dispute Resolution”. Claire discussed Alternative Dispute Resolution (ADR) in general, and Karen discussed the (also here). The second full paper was presented by Lisa Kinsella, on “Clinical Research at Third Level: Recent Developments in the Regulatory Framework”. And third was Tara MacMahon, who gave an update on the work implementing the recommendations of the Innovation Taskforce. …

Harry Potter and the Chancery Judge

15 October, 201022 October, 2010

| No Comments

| Copyright

For those who have an interest in the copyright travails of Harry Potter, about which I have blogged previously (1 | 2 | 3), Jeremy Phillips has an interesting blogpost on The 1709 Blog:

Wizard gears up for ten-day tangle with boy magician

Word is now spreading about the news that Scottish author JK Rowling and Bloomsbury Publishing have failed in their bid to prevent an unwanted copyright infringement action getting to court. A a 10-day Chancery Division trial is now expected, following today’s ruling by Mr Justice Kitchin here that Paul Allen, the trustee of the estate of Willy the Wizard author Adrian Jacobs, has an arguable copyright infringement claim against the author and publisher of Harry Potter and the Goblet of Fire.

JK Rowling and Bloomsbury (her UK publisher) both deny all of the claims and argued that, since they were groundless, they should be dismissed summarily. However, after an interim hearing in July which lasted three days, Kitchin J has now concluded that the claim may succeed and would not therefore be dismissed at this early stage. … more here

The New York Times adds:

British Judge Refuses to Throw Out Suit Accusing Rowling of Plagiarism

J.

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Academic judgment and breach of contract in Ontario

14 October, 201017 September, 2020

| 8 Comments

| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Litigation, Universities

Omar Ha-Redeye has blogged on Slaw about an Ontario CA decision that is very relevant to the judicial review proceedings being taken by Andrew Croskery to challenge his degree results in Queen’s University Belfast (on which I have previously blogged: 1, 2, 3). The gravamen of those posts was that courts are slow to disturb substantive academic decisions, though beyond that sphere, they will of course give effect to claims in tort or for breach of contract. This distinction is at the heart of the case at issue in Omar’s blogpost: Jaffer v York University 2010 ONCA 654 (7 October 2010).

In this case, the plaintiff challenged a decision to exclude him at the end of his first year because he had not maintained a sufficient grade average, on the grounds that the university had failed to make proper accommodation for his Trisomy 21 (Down’s Syndrome) and that he had detrimentally relied on an alleged promise by a professor to defer his status while the dispute over disability was resolved. His claim failed at first instance, in part on the ground that, “[w]hile there may be contractual or tortious issues within the broader claim, if the pith and substance of the impugned conduct is academic in nature, the action cannot be continued in the courts” ([24] Pitt J).…

Shipping and subrogation

13 October, 201024 July, 2023

| 3 Comments

| Restitution, Subrogation

Bell Lines logo, via flagspot.net By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In particular, it is the process by which one party is substituted for another so that the first party may enforce that other’s rights against a third party. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, the third party pays the creditor, and is then subrogated to the rights of the creditor against the debtor. In Bell Lines v Waterford Multiport Ltd [2006] IEHC 188 (28 April 2006) rvsd [2010] IESC 15 (18 March 2010), unemployment agencies in the UK paid various entitlements to UK-based employees of an Irish company in liquidation, and successfully sought to be subrogated to those employees’ preferential claims against the company in the Irish liquidation.

The litigation raises, but does not answer, some rather profound questions about the nature of subrogation. In Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, [1998] UKHL 7 (26 February 1998) and Bofinger v Kingsway (2009) 239 CLR 269, [2009] HCA 44 (13 October 2009), the House of Lords and the High Court of Australia took different approaches to the relationship of unjust enrichment and subrogation (see my previous posts).…

Mechancial turks, safe harbours, and immunities – liability for defamatory comments on websites

12 October, 201028 November, 2013

| 15 Comments

| Defamation, Defamation Act 2009, Media and Communications

Eric Goldman has recently blogged about a US case in which a local tv broadcaster was not held liable in defamation for a comment posted on its website by a viewer. More recently, Rebecca Tushnet discussed a case in which the review website Yelp was held not liable in defamation for hosting a review to which its subject objected (see also CYB3RCRIM3 | Eric Goldman | First Amendment Coalition | Internet Defamation Law Blog | Techdirt ). (Indeed, review authors will usually be able to rely on the defence of fair comment – or honest opinion – anyway). More recently still, Lilian Edwards has blogged about her presentation on internet intermediaries and legal protection. These posts got me thinking about how such disputes might play out as a matter of Irish law.

[After the jump, I discuss the basic position at common law and under the Defamation Act, 2009 (also here), and then I compare and contrast US ‘safe harbor’ defences with EU immunities.] …

The manifest destiny of an ill-founded application to the ECHR

9 October, 2010

| 1 Comment

| Defamation

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.…

Grievance poses academy ‘threat’

8 October, 201031 January, 2013

| 4 Comments

| Academic Freedom, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

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.

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