Fertility expert breaches contract

Roger Pearson reports on the ruling that an academic was in breach of contract with his university by taking on outside work.

The recent High Court decision that leading fertility expert Dr Simon Fishel – who has worked with test-tube baby pioneers such as Patrick Steptoe – breached his contract with Nottingham University in respect of work he did abroad without telling the university, is expected to cause major ripples throughout the academic world.

Fishel was sued by Nottingham University for a reported £400,000 he was said to have received in private fees while he was at the university. Even though the judge ruled that he will only have to pay part of those damages, it is estimated that Fishel will face a bill of several hundred thousand pounds after legal costs are added.

The university had accused Fishel – who was scientific director of its fertility clinic and its highest paid employee before his resignation in 1997 – of breaching his contract and fiduciary duty by carrying out the overseas research work.

It was alleged that Fishel did not have consent to carry out the work and that he should have handed over the fees he earned.

Mr Justice Elias found in favour of the university and ruled that Fishel had breached its rules.

His judgment sends a warning to other academics who top up their earnings with outside work and who may also need to look at the way they approach the rules of their universities relating to this work.

The judge said: "I have no doubt that Dr Fishel was in breach of contract in failing to obtain the requisite consent for his paid outside work."

He added that a number of academics may be "a little cavalier" about obeying rules relating to them undertaking outside work.

But Justice Elias did not award damages in respect of the breach of contract because he did not consider that the university would have undertaken the work in question and therefore could not be said to have lost out.

He awarded damages against Fishel for using university facilities and other staff for his outside work.

He added that although Fishel had wanted to capitalise on his skills, he did not consider he was a man who was driven by the desire to maximise income at all cost.

Clive Robertson, head of the education law department at Lawford & Co who represented the university, says: "This case establishes important legal principles which will ensure that universities remain common pools of learning, rather than a series of fragmented individual personal profit centres."

Robertson says that as far as the university was concerned the case was as much about a matter of principal as anything else.

He says: "It was about loyalty. It was about the university's employees delivering their work during the time for which they are paid for their work."

Robertson adds: "A slightly unusual element in this case was that Fishel was found to be in breach of contract but there was no loss to the university as far as the judge was concerned.

"However, there could be cases in the future in which the facts may be more straightforward, the work in question may be done in this country rather than abroad and it may be easy for the university to establish that it would have done the work itself. Then, presumably, damages would be awarded in respect of breach of contract."