IVF expert sued for extra fees earnings

December 17, 1999

A High Court battle between one of the United Kingdom's most respected in vitro fertilisation pioneers and his former university could have major implications for academics wishing to take on consultancies.

The University of Nottingham is suing Simon Fishel to recover private fees they claim the fertility expert earned secretly in breach of contract. Dr Fishel denies acting without authority and insists the university benefited from his overseas work.

The High Court hearing begins in January and is expected to last three weeks.

The dispute revolves around contractual matters but has raised serious issues about academics' rights to the proceeds of private consultancy work and intellectual property.

Nottingham is claiming back the amount it estimates Dr Fishel earned from consultancy and his salary for the time he took to do it. His supporters say this has cost the university hundreds of thousands of pounds in legal fees and has pushed him to the financial brink.

Dr Fishel said: "This case has global implications that an academic owes his complete time to the university and that no academic is permitted consultancy work if it has a research element."

His supporters claim that if the High Court rules against him, it will set a precedent greatly increasing the rights of universities, under increasing pressure to maximise their revenue, over income generated by the endeavours of its academics.

This would make it harder to recruit the best people to academic posts where the salary falls far short of private sector alternatives. The THES revealed last week that 74 of 401 clinical academic chairs were vacant.

Peter Lux, solicitor for Dr Fishel, said the case's most significant potential repercussion for UK academics had emerged in written evidence submitted to the High Court by solicitors acting on behalf of the university.

It is believed that evidence may be produced to indicate that the university regards an activity as its business when the ideas originate with an academic. It regards consultancy as comment on other people's ideas and giving advice. The university is said to believe that pushing the boundaries of knowledge cannot be regarded as consultancy.

Alan Pritchard, emeritus professor of law at Nottingham, said: "The implications could be extremely serious. It is very unsatisfactory that a change in the perceived precedent on outside earnings, consultancies, patents, copyrights or whatever should be settled in a court by a tribunal that's not versed in academic freedom."

In a prepared statement, a spokesman said as a public body the university had an obligation to identify and reclaim "secret" profits. "We believe he (Dr Fishel) carried out considerable work overseas for private gain using the university's name, staff and equipment, all without authorisation," he said. It would be inappropriate to comment further until the hearing, he added.

Dr Fishel, who worked with the pioneering IVF team that produced the world's first test-tube baby, founded and ran the renowned Nurture fertility clinic at the university.

He admitted pursuing consultancy work abroad, in part because it allowed him to research new techniques that were forbidden in the UK by the Human Fertility and Embryology Authority. However, he says this was with the full knowledge of his department head and was widely publicised.

He added that by the time he left, Nurture had become a "milchcow", generating profits of more than Pounds 500,000 a year that were ploughed into the university.

One of Dr Fishel's main gripes was that this money was not ploughed back into human fertility research. He said this led him to snub a chair in human reproduction and resign.

Soon after, the university served the writ demanding recompense for outside work.

A successful claim will bankrupt Dr Fishel, who is now working with a private clinic, Care, the Centre for Assisted Reproduction, in Nottingham, along with 20 former Nurture staff.

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