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Scientist must pay university a slice of profits

BMJ 2000; 320 doi: https://doi.org/10.1136/bmj.320.7235.602 (Published 04 March 2000) Cite this as: BMJ 2000;320:602
  1. Clare Dyer, legal correspondent
  1. BMJ

    A leading British infertility specialist must pay his former university employers a substantial slice of the profits he earned from work abroad while employed by the university, a High Court judge ruled last week.

    In a case with important implications for other academics who top up their earnings with private work, Mr Justice Elias held that Simon Fishel must account to Nottingham University for money he earned from clinics in Italy, South Africa, and the Middle East using the services of staff embryologists from the university.

    Dr Fishel, aged 47, a clinical embryologist who is not medically qualified, had breached his fiduciary duty to the university by profiting from work done by other embryologists for whom he was responsible, the judge ruled.

    He put himself where there was a “potential conflict between his specific duty to the university to direct the embryologists to work in the interests of the university and his own financial interests in directing them abroad.”

    But he rejected the university's argument that Dr Fishel should pay over the money he earned from his own work abroad, ruling that the clinics who used his services did so because of his personal reputation, not his university links.

    Dr Fishel, who was scientific director of the university's “nurture in vitro fertilisation” unit, handed in his notice in 1997 after being forced to take a 25% cut in his 1996 salary of £138000($220000), which had made him the university's highest paid employee.

    After he left to set up a rival private clinic in Nottingham, the university sued him for £400000. Dr Fishel estimates that as a result of the judgment he will be liable to pay less than £75000, but this may have to be determined at another hearing.

    The expensive battle, which culminated in a three week High Court trial, will leave both parties facing substantial legal costs. How much each will have to pay will be decided later. The loser normally pays the winner's costs but in this case neither won a clear cut victory.Nottingham won on some issues and Dr Fishel on others, so the costs will have to be apportioned.


    Embedded Image

    Dr Simon Fishel used his staff to earn money abroad

    (Credit: DOUGMARKE/PAGE ONE)

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