Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

A case reported as a news item in the Telegraph for 26.2.00, Nottingham Uni v Fishel, is of interest to restitution lawyers and academics generally. A clinical lecturer at Nottingham makes a tidy sum on the side without the university's permission, and using university facilities. This is a breach of his contract with the university. Elias J (an ex-academic, alumnus of Exeter and previous lecturer at Cambridge) holds, it seems, that he is accountable for this sum on the basis of breach of fiduciary duty, but refuses restitutionary damages for breach of contract as such. A copy of the Telegraph report:

A TEST-TUBE baby pioneer faces having to pay his former university employers a substantial part of profits estimated at £400,000 that he made from private practice work after a High Court ruling yesterday.

Mr Justice Elias ruled that Dr Simon Fishel was in breach of his fiduciary duty to Nottingham University when keeping the profits of treatment carried out abroad using university embryologists under his supervision. He also found that Dr Fishel, although not dishonest, was in breach of his contract of employment with the university. But as it did not cause loss to the university, he should not have to pay them any damages for this, said the judge.

Dr Fishel, who is 47 and was head of the university's fertility clinic from 1991 to 1997, was taken to court by his former employers who claimed that he had made substantial secret profits from private practice which should have gone to them.

During the High Court hearing in London, the judge was told that despite his substantial salary which topped £138,000 in 1996, Dr Fishel charged patients for treatment given during his visits to foreign clinics and kept the money for himself and to pay the embryologists and other university staff who went with him. His profit-making business of running infertility clinics abroad had brought in fees of up to £10,000 but although he had used the name of the university's fertility unit and the university's employees and secretarial facilities, none of the money had gone to his employers, it was claimed.

Dr Fishel, of East Bridgford, Notts, argued that he was not doing outside work but inventing, testing or improving techniques as part of his research functions and that the fact that he was paid for the work was irrelevant. In his reserved judgment yesterday Mr Justice Elias said he was satisfied that Dr Fishel at all times genuinely thought that the work he was carrying out abroad was for the benefit of Nurture, the Nottingham University Research and Treatment Unit in Reproduction, of which he was clinical director.

He added: "I do not think that Dr Fishel did in fact prejudice the interests of the unit by putting his financial interests first, although I think he may have come very close to this." But under the terms of his contract, Dr Fishel had to obtain consent to work outside the university for money and he had not done this. He was therefore in breach of his contract, said the judge.

If the account of profits due to the university as a result of the judgment cannot be agreed, a further hearing would be necessary to determine them. The court also has to decide who should pay the estimated £500,000 cost of the action. After the judgment, the university's registrar, Keith Jones, said the university felt the judgment fully justified its decision to bring the action to protect the principles of loyalty.

Dr Fishel, who not in court for the judgment, claimed afterwards that the university had spent £750,000 of public money - "enough to pay the tuition fees of 700 students, in pursuing this grievance through the courts".