Out of court settlement - Deception

[David willson]

In my craves, I requested the honourable court to make the defender pay for all my damages/losses etc.

 

[Mr D]

I wanted the next hearing to be of Proof but the defender objected and asked for the diet of debate .. in which the legal basis of the case is debated. The defender simply exploited my party litigant status and stopped me from reaching the hearing of Proof. As a party litigant who couldn't cite case laws etc. to defend the legality of his case, I felt my case will get dismissed so I ended up accepting their lousy offer.
There were other reasons to accept this offer which were to do with time and getting on with my doctorate and career aspirations etc.

As I recall the decision to be a party litigant was yours. Not theirs.

It's sounding like you have quite a fight on your hands now. Party litigant again?

 

[Mr D]

In my craves, I requested the honourable court to make the defender pay for all my damages/losses etc.

And what was the decision?

 

[David willson]

No, I will involve a solicitor. After approaching so manyyyy, I finally found one. I hope they are going to come up with the goods. I am waiting to hear their next response.

Decision? It was an out of court settlement

 

[Newchodge]

they promised confidentiality of my work by saying yes to the deletion of my research work and returning the hard copies of my thesis.

Which?
Did they specifically, in writing, in the settlement agreement, promise confidentiality? Or did they agree to the deletion of your research work and the return of the hard copies?

 

[Chris Ashdown]

As far as I can see the only damage was that they published your work, which would have been your plan if you had not failed your exams. You may or may not have copyright as i would imagine its down to what was signed between you and the university between when you started and finished

It sounds like the damage to your career was caused by yourself not passing the exams so any damage for just copyright will be very small

You lost the war (note other solicitors not taking on the case) and don't know when to quit and if you keep going it will ruin the rest of your life, time to stop looking back and start looking forward

 

[David willson]

Which?
Did they specifically, in writing, in the settlement agreement, promise confidentiality? Or did they agree to the deletion of your research work and the return of the hard copies?

Thank you for your reply.

No, they did the latter.

However, if they had not concealed the fact that they have illicitly published my work already, I would have never opted for such a settlement. As the defender deleting my work would have done nothing for me. To my understanding, concealment of fact for a financial gain or saving yourself from a potential liability is fruadlent misrepresentation. Is this incorrect? If yes, how and why?

 

[David willson]

As far as I can see the only damage was that they published your work, which would have been your plan if you had not failed your exams. You may or may not have copyright as i would imagine its down to what was signed between you and the university between when you started and finished

It sounds like the damage to your career was caused by yourself not passing the exams so any damage for just copyright will be very small

You lost the war (note other solicitors not taking on the case) and don't know when to quit and if you keep going it will ruin the rest of your life, time to stop looking back and start looking forward

Thank you for your reply.

I never had an exam. The defender cancelled my registration. The initial case incorporated a deliberate misrepresentation which I had to expose on which a U-turn was taken by my research supervisor. After this deceptive experience, I removed this person from my team with this demand that I want to completely disconnect her influence from my prospective doctorate which includes the selection of this individual's chosen examiners.

However, the replacement supervisor first tried to conceal the names of the examiners from me and when they were finally revealed, they were the same examiners. On this I objected, showed the communication which took place at the time of the removal of the previous supervisor but everything was ignored. To cut a long story short, no examination has ever taken place to date.

And I do have the copyright of my work. The defender has breached their own Regulation. I am 100 percent sure about this.

 

[Mr D]

And I do have the copyright of my work. The defender has breached their own Regulation. I am 100 percent sure about this.

Then on copyright matters you should win.

 

[Newchodge]

Thank you for your reply.

No, they did the latter.

However, if they had not concealed the fact that they have illicitly published my work already, I would have never opted for such a settlement. As the defender deleting my work would have done nothing for me. To my understanding, concealment of fact for a financial gain or saving yourself from a potential liability is fruadlent misrepresentation. Is this incorrect? If yes, how and why?

Did you ask if the work had been published, and did they lie about it? Did you specify that the work should not be published in the settlement agreement? If not, I don't see that you have a case in any jursidiction. Not telling you something that you have not asked about is not misrepresentation.

 

[David willson]

Did you ask if the work had been published, and did they lie about it? Did you specify that the work should not be published in the settlement agreement? If not, I don't see that you have a case in any jursidiction. Not telling you something that you have not asked about is not misrepresentation.

Thank you for your reply.

I feel there was no need to ask that because what they have done is illegal. Their own regulation does not give them the right to publish copyrighted work of a researcher/student before it has been awarded by PhD.

Do you expect people to ask questions to the other side if they have done something illegal before doing a settlement with them? :/

To my munderstanding, concealment of a very relevant fact to do an agreement is misrepresentation.

In return, they got my signature on a document which allowed them to be free of the craves which incorporated damages of £300, 000

 

[David willson]

''There must have been a misrepresentation of fact made prior to conclusion of the contract; either by inaccurate statement or by positive act. In the limited circumstances in which a duty to disclose exists, non-disclosure may also amount to a misrepresentation.1 Statements of opinion, verba jactantia (eg invitations to treat or "trade puffs") or statements of future intention will not suffice.''

Does such a duty exist in the specific context?

Pursuer has asked the Defendant to delete the soft copies of his thesis and return the hard-copies to him as he is the copyright holder of the work so he can take his work to a different university for consideration. He has asked this in his mediation offer.

Does this not clearly imply that the pursuer wants to keep his copyrighted work confidential?

In stead the defender has illegally published his work without his knowledge or consent (Concealment of a very relevant fact) to do the settlement.

 

[Newchodge]

Thank you for your reply.

I feel there was no need to ask that because what they have done is illegal. Their own regulation does not give them the right to publish copyrighted work of a researcher/student before it has been awarded by PhD.

Do you expect people to ask questions to the other side if they have done something illegal before doing a settlement with them? :/

To my munderstanding, concealment of a very relevant fact to do an agreement is misrepresentation.

In return, they got my signature on a document which allowed them to be free of the craves which incorporated damages of £300, 000

But for some reason your solicitor could get nowhere with it.

 

[David willson]

Once again, thank you for the responses. This forum is amazing!

What about this aspect:

''Good faith is not an overtly recognised or apparently very active concept in general contract
law in Scotland. This essay argues however that good faith does play a substantial role in
contract law, but in a submerged or subterranean way, through particular rules rather than
broad general statements''.

I feel the settlement was clearly not done in good faith.

 

[Newchodge]

Does this not clearly imply that the pursuer wants to keep his copyrighted work confidential?

No. It absolutely does not.

 

[David willson]

Does the following imply pressure/bad faith as well:

If time, the exploitation of my party litigant status and your threat of me paying your client's legal expenses as a mere student etc. were not a factor, I would have never mediated or allowed your client to get away with what they have done.

I wrote the above in one of the mediation letters. The defendant still wanted to do mediation with me.

 

[David willson]

No. It absolutely does not.

Oh interesting. Thank you.

 

[Newchodge]

Does the following imply pressure/bad faith as well:

If time, the exploitation of my party litigant status and your threat of me paying your client's legal expenses as a mere student etc. were not a factor, I would have never mediated or allowed your client to get away with what they have done.

I wrote the above in one of the mediation letters. The defendant still wanted to do mediation with me.

No. It implies that you had no idea what you were doing. That is not the fault of the other side. It doesn't matter whether the other side wanted to mediate. YOU had to agree to it.

And you are misrepresenting the facts. You could not have written this in one of the mediation letters. "I would have never mediated or allowed your client to get away with what they have done." clearly implies that you wrote that letter after mediation.

 

[David willson]

No. It implies that you had no idea what you were doing. That is not the fault of the other side. It doesn't matter whether the other side wanted to mediate. YOU had to agree to it.

And you are misrepresenting the facts. You could not have written this in one of the mediation letters. "I would have never mediated or allowed your client to get away with what they have done." clearly implies that you wrote that letter after mediation.

I rejected their offer 'twice' . I wrote this when I rejected their offer.

 

[Mr D]

Does the following imply pressure/bad faith as well:

If time, the exploitation of my party litigant status and your threat of me paying your client's legal expenses as a mere student etc. were not a factor, I would have never mediated or allowed your client to get away with what they have done.

I wrote the above in one of the mediation letters. The defendant still wanted to do mediation with me.

Your choice about party litigant status, not the other side. Cannot blame them for your inability to find a solicitor that would handle your case for you as you wished.
Perhaps there is more to it on the legal side than we can know.

Legal expenses - not uncommon but up to the judge if it gets that far. The threat worked, you signed. Ever thought perhaps that was the intention?

 

[David willson]

Your choice about party litigant status, not the other side. Cannot blame them for your inability to find a solicitor that would handle your case for you as you wished.
Perhaps there is more to it on the legal side than we can know.

Legal expenses - not uncommon but up to the judge if it gets that far. The threat worked, you signed. Ever thought perhaps that was the intention?

I had already rejected that offer but they made the same offer again but this time, they mentioned that they will ask the court to make me pay their legal expenses, if they manage to get the case dismissed.

 

[David willson]

No. It implies that you had no idea what you were doing. That is not the fault of the other side. It doesn't matter whether the other side wanted to mediate. YOU had to agree to it.

And you are misrepresenting the facts. You could not have written this in one of the mediation letters. "I would have never mediated or allowed your client to get away with what they have done." clearly implies that you wrote that letter after mediation.

I still cannot believe how you assumed and then wrote that. Are you a solicitor or from a legal background?

 

[Newchodge]

I still cannot believe how you assumed and then wrote that. Are you a solicitor or from a legal background?

Yes

 

[Newchodge]

I still cannot believe how you assumed and then wrote that. Are you a solicitor or from a legal background?

What you wrote implies absolutely nothing about what the other side did. It represents your belief, nothing more. If you want to show what the other side implied you have to quote THEM

 

[Mr D]

I had already rejected that offer but they made the same offer again but this time, they mentioned that they will ask the court to make me pay their legal expenses, if they manage to get the case dismissed.

They could have given a lower offer 2nd time round.
Seen that happen more than once.

What they did - common enough practice. It goes to court their expenses go up but yours hardly does. What exactly would you have expected them to have done?

And their offer worked.

Just now you have another issue with them.

That you do appear to need expert help with. Not do it yourself.

 

[Chris Ashdown]

Maybe time to have a good look at yourself, your expectations maybe far to high and your obsessed with fighting a fight you will never win, but will happily keep fighting and ruin the rest of your life thinking "What if" and become a bitter old man who could have made something else with his life

Take a week or more away from your problem and consider what else you can do without your beloved PHD, remember most jobs outside academia are based upon ability rather than academic qualifications, life is full of opportunities

 

[The Byre]

I feel there was no need to ask that because what they have done is illegal.

No, it is a matter of tort - civil law and not criminal law!

To my munderstanding, concealment of a very relevant fact to do an agreement is misrepresentation.

Concealment and misrepresentation are two different things.

Once again - you need to go to the ombudsman and lodge a formal complaint. The courts are not the place or the people to rectify this situation.

Please do not include pejorative and subjective language (e.g. the use of words like 'illegal' and 'misrepresentation' and other clear examples of invective) as it will only serve to undermine your case. It is for the team at the ombudsman to draw their own conclusions based on the facts and only on the facts.

I see a real danger that you (despite having a possibly strong case) of destroying that case before you have started by using words like illegal and concealment. Anyone reading such language is very tempted to say to themselves "Here we go! It's just some nutter who had their dissertation turned down!"

Keep it sober and keep strictly to the facts and they will listen to you!

 

[David willson]

Thank you for all the responses. You guys are amazing!

I have been advised the following by a solicitor that I need to seek decree of reduction for the reasons I have outlined but at the high court/court of session:

The defendant has committed copyright infringement.

The defendant has breached their own internal regulation.

The defendant illicitly uploaded an unapproved/not awarded PhD thesis as an awarded thesis. As a consequence, the defendant has also deceived all the researchers who downloaded the pursuer's work with this belief that it was an awarded PhD thesis. A lot of them have probably wrongly cited this work as well etc. The defendant has also deceived the British library by uploading the work there as an awarded thesis and obviously the pursuer.

Three out of four demands of the pursuer in the out of court settlement were to do with deletion of the research work. The deletion of soft copies and return of the hard-copies and a no objection certificate so the work can be taken to a different university.

The pursuer only asked for the above because pursuer did know that the defendant is capable of stooping to the lowest level and breaching copyright laws and the defendant's own regulations. If the pursuer knew about this illicit act, there was no reason for the pursuer to ask for any such deletions, as the work was already out there in the public domain. This makes the deletions pointless.

It also needs to be noted when I exposed the defendant's illegal antics, the defendant instructed their lawyer to deal with the matter and their law firm is refusing to provide an explanation. It's been so long now and they keep saying we are investigating this matter.

Based on the above reasons etc., a reduction in the decree should be approved in the high court.

I have filed an appeal at the lower court. Should I withdraw this appeal and do a fresh appeal at the high court when the work on the entire case is ready.

I understand to file an appeal at the high court/court of session is 90 days so I believe I have plenty of time to prepare.

 

[Mr D]

Based on the above reasons, a reduction in the decree should be approved in the high court.

I have filed an appeal at the lower court. Should I withdraw this appeal and do a fresh appeal at the high court when the work on the entire case is ready.

I understand to file an appeal at the high court/court of session is 90 days so I believe I have plenty of time to prepare.

Surely you asked this of the solicitor advising you?

 

[David willson]

They require a fee for any further advice and I am only a student. The reasons outlined to them were by me. They only suggested that a reduction in the interlocutor at the Court of Session seemed to be the most viable way forward. The smaller courts cannot do this. They have also asked for a hefty amount to do the initial work and I would be more comfortable, if I have more time to make this arrangement.

If you guys are solicitors, please provide some guidance. I have not even sent the interlocutor to the defendant yet. Can I withdraw this appeal at the lower court and do a fresh appeal at the court of session, when I am ready with my entire case?

 

[Newchodge]

So the only advice you have from the solicitor is that this needs to be done in a different court.

 

[David willson]

By the original case also incorporated deliberate misrepresentations and attempt to conceal (all done in writing). Thus, their behaviour is consistent lol The original case involved various administration failures as well which were also admitted in formal signed/virtually authorised documents. I just couldn't reach the hearing of proof last time. This time I will ensure that I will get there!

 

[David willson]

I was also told that I need to do this because my complaint is not against the verdict of a judge but it is against the defendant/university. There was no verdict based on any law, the interlocutor was just on the basis of the out of court settlement. They also said they need to involve a junior counsel to get this done.

Please do answer my question, if you can. I appreciate the critical comments as that is one of the reasons why I joined this forum but a few direct answers to my questions will be greatly appreciated.

 

[Newchodge]

I was also told that I need to do this because my complaint is not against the verdict of a judge but it is against the defendant/university. There was no verdict based on any law, the interlocutor was just on the basis of the out of court settlement. They also said they need to involve a junior counsel to get this done.

Please do answer my question, if you can. I appreciate the critical comments as that is one of the reasons why I joined this forum but a few direct answers to my questions will be greatly appreciated.

As I said before I have not the faintest idea how Scottish law works, so I cannot comment.

 

[David willson]

No, it is a matter of tort - civil law and not criminal law!



Concealment and misrepresentation are two different things.

Once again - you need to go to the ombudsman and lodge a formal complaint. The courts are not the place or the people to rectify this situation.

Please do not include pejorative and subjective language (e.g. the use of words like 'illegal' and 'misrepresentation' and other clear examples of invective) as it will only serve to undermine your case. It is for the team at the ombudsman to draw their own conclusions based on the facts and only on the facts.

I see a real danger that you (despite having a possibly strong case) of destroying that case before you have started by using words like illegal and concealment. Anyone reading such language is very tempted to say to themselves "Here we go! It's just some nutter who had their dissertation turned down!"

Keep it sober and keep strictly to the facts and they will listen to you!

Byre, thank you for this!

 

[David willson]

Byre, thank you for this!

Based on my due diligence, concealment of a very relevant fact (in this case an act which breached the law/copyright infringement) to conveniently do a settlement is misrepresentation.

The following is from the famous Menzies and Menzies case:

''There must have been a misrepresentation of fact made prior to conclusion of the contract; either by inaccurate statement or by positive act. In the limited circumstances in which a duty to disclose exists, non-disclosure may also amount to a misrepresentation.1 Statements of opinion, verba jactantia (eg invitations to treat or "trade puffs") or statements of future intention will not suffice.''

Does such a duty exist in the specific context?

I would like to reiterate the relevant fact concealed was also a direct breach of the law/copyright infringement.

(I hope I got the name of the case right)

 

[David willson]

As I said before I have not the faintest idea how Scottish law works, so I cannot comment.

That's okay. Your contribution is much appreciated anyway. May the Lord bless you with an amazing Xmas and a Happy New Year. I would like to wish the same to everyone here. This is such a great forum!

 

[Mr D]

They require a fee for any further advice and I am only a student. The reasons outlined to them were by me. They only suggested that a reduction in the interlocutor at the Court of Session seemed to be the most viable way forward. The smaller courts cannot do this. They have also asked for a hefty amount to do the initial work and I would be more comfortable, if I have more time to make this arrangement.

If you guys are solicitors, please provide some guidance. I have not even sent the interlocutor to the defendant yet. Can I withdraw this appeal at the lower court and do a fresh appeal at the court of session, when I am ready with my entire case?

Then your lack of paying a fee may limit your ability to get the result you want.

 

[David willson]

Then your lack of paying a fee may limit your ability to get the result you want.

I know but I am trying to address this issue. Do we have any Scottish solicitors here who can guide me how to transfer my appeal to the Court of Session/Supreme court of Scotland in the meantime? I need to request for a reduction in the interlocutor.

Many thanks in anticipation.