Are there similarities between Warwick Uni whistleblower Kostakopoulou and Johnny Depp case?

The case of Johhny Depp, reminds us that journalists failed to realise is that media has an unalterable obligation to serve the truth and to ensure balanced commentary on whether the UK justice system respects the most sacred of human rights – the right to a fair disposition of the administrative process of justice and a fair hearing.

The media in muffling a legitimate comment serve to demonstrate the discrepancy between the open critique of political systems around the world that disavow the rule of law and human rights, on the one hand, and the eagerness to silence those who bring attention to violations of the rule of law and human rights within the UK, on the other.

The triumph of Johnny Depp at the end, shows that the truth can not be always remain hidden.

Andrew George Lindsay Nicol (born 9 May 1951) is a retired judge of the High Court of England and Wales.

The case of Johhny Depp and Judge Nicol

Nicol presided over the 2020 libel suit Depp v News Group Newspapers Ltd, in which Johnny Depp sued British tabloid newspaper The Sun, which had claimed in an article that Depp was a “wife beater”. Nicol ruled against Depp, accepting that 12 of 14 alleged accounts of violence committed by Depp against Amber Heard were true. Depp was denied permission to appeal by two judges of the Court of Appeal, who stated that they did not believe there was a real prospect of overturning the findings, and that the hearings had been fair.^[9]

In 2022 Depp sued Heard in a separate defamation case in the United States. This case had a different outcome, with the jury finding that Heard had defamed Depp.^[10]

Unfortunately, unlike Mr Johnny Depp, whose libel claim was presided over by Justice Nicol, Kostakopoulou does not have deep pockets. Neither is she able to have her claims heard in another country’s justice system to expose the wrongdoing and intentional lying of Professors C. Ennew, A. Sanders, A. Lavender, and Ms Opik and thus clear her name in the manner Mr Depp was able to.

The Kostakopoulou case

A law professor and whistle-blower Kostakopoulou brings London High Court Case against Warwick University for libel, malicious falsehood and human rights violations. Professor Kostakopoulou, an internationally recognised professor of European Law and Policy, was suspended from Warwick University, having been accused by Prof Christine Ennew, OBE, Provost, and Prof Andrew Sanders, Head of Warwick University Law School, after raising a formal grievance against them for unlawful and unethical conduct. The suspension of Kostakopoulou imposed considerable damage on her students who were instructed to take alternative courses. As well as being banned from campus, the library, and all email communication with her colleagues, Kostakopoulou was prohibited from supervising her undergraduate and graduate students who suffered as a consequence of her suspension.

Striking Similaries and Conclusions

Had you read Sir Nicol’s decision carefully, you must have seen an unexplainable striking out of the human rights and EU law violations which formed the first limb of Kostakopoulou’s claims. Sir Nicol failed to engage with them, carefully examine Kostakopoulou’s particulars of claims and skeleton argument and to address them. This is a grave error of law. You will be aware that judicial organs must examine carefully all pleaded human rights violations and exercise the statutory duty of care. They also have the unconditional obligation to comply with primary and secondary EU law, the general principles of EU law and, particularly, with the EU Charter of Fundamental Rights, which is primary EU law given that EU law applied fully in the case brought by Kostakopoulou. Furthermore, there is no judicial discretion to disregard special rules of law, such as international human rights law and EU law, giving rise to invocable and directly effective individual rights. Striking out a legitimate claim, having three causes of action: i) violations of human rights and EU law, breaches of proportionality and the right to be heard, ii) libel, and iii) malicious falsehood and given that Justice Nicklin had acted unlawfully by excusing Defendants’ breach of CPR rules by extending the period for the submission of their defence when they had breached a High Court order and without any application for an extension for filing a defence from them, is a flagrant violation of both Article 6(1) and 13 ECHR.

Additionally, if a Judge holds that any fraudulent bullying accusations Warwick University wishes to make against a female professor are justified because it is implied that the professor had consented to them by signing a contract of employment with Warwick University, which includes a disciplinary code and procedure, then he has to engage specifically with Warwick University’s contract of employment which includes an overreaching Dignity Clause. Sir Nicol failed to do so. Sir Nicol ‘erred in assuming that by signing a contract of employment which includes a disciplinary code, any false and malicious allegation is made with the employee’s agreement, that an employee can authorise and consent to the employer’s own breach of the disciplinary procedure by fabricating misconduct allegations and that an employment contract can neutralise legally binding and overriding human rights obligations. A disciplinary procedure does not give a licence to tell lies, engage in bullying complaints and victimising campaigns and harm one’s profession and reputation’.

Kostakopoulou ‘included in her statement of case explicit and robust evidence of dissent, opposition and protested against the bullying, vexatious allegations and defamatory statements of the Defendants and requested retractions repeatedly during her suspension on fraudulent charges, the falsity of which was known to Andrew Sanders, Christine Ennew, Andy Lavender and to Sir David Normington. These were displayed consistently by Kostakopoulou; see Kostakopoulou’s skeleton argument para 165’. It is ‘perverse and unsustainable for Sir Nicol to conclude that the Defendants did not have to provide a defence and that the claim should be struck out because it is presumed Kostakopoulou had consented to her defamation, suspension and dismissal’.

It is a well-known fact that an employee’s consent must be informed and unequivocal. In Otuo v Morley [2017] EWHC 2186 (QB), Justice Eady confirmed that by arguing at [1] and [9]: ‘In order to succeed, the defendant must show that the claimant has unequivocally consented to the publication of the defamatory allegations and with full knowledge’. This means that an employee is entitled to deny or revoke it at any time – a fact that makes the application of Friend not so straightforward. It is impossible for one to abrogate such rights and duties today as well as to assume that a  person/employee can lawfully consent to their bullying, victimisation and discrimination, injuries to their health and well-being, to breaches of their fundamental right to data protection and their defamation. By signing a contract of employment, an employee can never consent, either expressly or impliedly, to an unwarranted and disproportionate limitation of their rights under Article 8 ECHR. Public authorities, in turn, have a distinct duty to prevent such limitations.

In the field of data protection law, any data employers collect must observe the data protection principles, and its processing must be based on the employee’s qua data subject’s informed consent. Employers ‘are not free to contrive false and malicious information about employees, to keep them in employees’ files and re-circulate them without giving an employee’s right to access that information and to demand the correction and removal of the incorrect information without any delay. The judgment in the case ‘Friend’ is not consonant with data protection law principles today. Employers have reinforced duties to process employee data, and thus, any complaint about a named employee, a) fairly and for a legitimate purpose, b) with the employee’s freely given and informed consent, and c) in strict observance of the data protection principles which include fair and lawful processing, accuracy and in accordance with the rights of data subjects. No consent is implied within the parameter of data protection law; instead, it must be freely given, informed, specific and unambiguous and withdrawn at any time. And in the light of data subjects’ rights of rectification and restriction of processing of inaccurate data, an employer is also duty-bound to take reasonable steps to verify the accuracy of the data’.

Finally, ‘it is unsatisfactory for any judicial organ to make statements such as ‘the Claimant’s case of malice is hopeless’ without engaging with the Claimant’s submissions and showing the legal and evidential grounds on which such a conclusion is merited. Does anyone concoct lies and false narratives to destroy the career and life of a female scientist in good faith? Defamation does not happen by accident; instead, it is purpose-driven’.

Against the above background, one should not, of course, overlook how the administration of Professor Kostakopoulou’s case unfolded and the role played by Mr Justice Nicklin in the process leading up to the hearing itself. Mr Justice Nicklin ‘obstructed the course of justice by refusing Kostakopoulou’s request for the truth and threatened to impose a civil restraining order should any further application for the disclosure of information substantiating the allegations Warwick University made against her, thus covering up the wrongdoing of the respondents’.

In the parent case involving Professor Stuart Croft, Vice Chancellor, Professor Rebecca Probert (now at the University of Exeter) and Mrs Gillian McGrattan, Employment Judge Camp conducted the hearing without  Kostakopoulou’s bundle, knowing that doing so would violate Kostakopoulou’s right to a fair hearing and would also place the parties on an unequal footing. EJ Camp purposely did so to ensure Professors Croft and Probert, and Ms McGrattan would never be accountable for their unlawful conduct in a court of law. Appellate UK tribunal and courts sanctioned a judicial decision which removed the individual Respondents from a legal claim and which was made without examining the evidence, documents and submissions of Kostakopoulou.

Still, it has been a struggle for Kostakopoulou to obtain justice from the Birmingham Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal, all of which have ‘sidestepped the rules and the law to shield the wrongdoing of Warwick University executives and management. The Regional Employment Judge, Lorna Findlay, far from ensuring a level playing field, worked with Mr David Browne, Partner of Shakespeare Martineau and legal representative of Warwick University, to ensure that Professor Croft and Professor Probert would not appear in a tribunal hearing to account for their abusive treatment of Professor Kostakopoulou. More recently, Birmingham Employment Tribunal denied her a fair hearing of her interim relief claim and made a decision in an absentia hearing without any documents, written arguments and oral submissions by a representative. Repeated requests have been made to EJ Findlay for several months to direct Browne to provide a statement of truth to verify statements he had made in court papers that were not true. But these have all been refused by EJ Findlay‘.

In light of all of this, readers should have access to all relevant information; for more information concerning whistleblower Prof Kostakopoulou and her case, the following links provide more info:

https://employmentcasesupdate.co.uk/content/kostakopoulou-v-university-of-warwick-ors-2022-eat-120.c236a2450f94425eb96666cd94550cd3.htm

 https://new-economy.gr/2021/12/12/kostakopoulou-warwick-case/

https://new-economy.gr/2022/05/28/whistle-blower-kostakopoulou/

https://www.dorakostakopoulou.com/

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