The distinguished hypnotist, Paul McKenna, now has two PhD's, based largely, though by no means entirely, on experience and knowledge which he had gained in his field prior to enrolling for study. At the outset he had no university background, but he did have a successful career practising and writing about hypnotism. He obtained the first of these two doctorates from La Salle university, which was owned by the World Christian Church and was run by Thomas James Kirk, aka Thomas McPherson. (The second was from International Management Centres Association, whose website includes an encomium on, and some reflections on, the value of learning from experience.) Mr. Kirk of Ls Salle was investigated by the FBI and pleaded guilty to fraud. As well as running LaSalle university, he ran the accreditation body which accredited La Salle. The accreditation body was fictitious and therein lay the fraud. Mr. McKenna was one of the innocent victims of this fraud.

The defendants were Mirror Group Newspapers. The individual journalists involved were not joined as defendants, but were witnesses. The defendant had published an article written by Viktor Lewis-Smith, in collaboration with Paul Sparks PhD. It alleged that the La Salle doctorate was bogus, in that was awarded by post, was in effect bought and in effect required no study. (For a more precise description of the pleas by Claimant and Defendant, and the findings, I refer readers to the judgment itself, which is online: McKenna v MGN Ltd [2006] EWHC 1996 (QB). I should make it clear that my only source for the facts of the case is that judgment, and to a small extent the websites of Mr. McKenna, of the International Management Centres Association, and the BL catalogue; I ask my readers to construe anything I say which is not also found in those sources as comment.)

Mr. McKenna and was aggrieved when he learned from this article that the university where he took his PhD was not all he had thought it to be. He applied for, and won, compensation. Nevertheless he did not accept that the La Salle PhD was bogus or entirely worthless, and he sued the newspaper for defamation.

The judge introduces the Claimant: "The Claimant is Mr Paul McKenna (his preference is not to be addressed as "Dr McKenna")." He introduces Mr. Sparks and says, "He too has a PhD (being a specialist in the Neapolitan mandolin) and also prefers to be addressed as "Mr"." Any reader who is interested to know whether a PhD was awarded by a traditional British university can check by putting the author's name, e.g. Paul Sparks phd, into the British Library online catalogue, which should list the title, the awarding institution and the date. (Answer: City University, 1989).

It is not clear whether at any stage Mr. McKenna took the view that the handle 'Dr.' would assist him in his career or promote his 'brand.' He does not now use it. On his books and tapes he has not used it, but he has appeared as Paul McKenna PhD. Since I do myself put 'Dr.' on the byline of these articles, I will allow myself a couple of comments from a personal perspective. Time spent on a PhD is a privilege and excellent training. However, the title 'Dr.' (or the letters 'PhD') is a two-edged sword. It may give an air of academic credibility because, before life-experience PhDs became popular, it used to suggest a certain type of formal academic training which is in some contexts is useful. On the other hand, I have known at least one academic who had a PhD but refused to be addressed as 'Dr.' It can sound ungentlemanly. Besides, there used to be a perception in some academic circles that if you had obtained a PhD, that was a sign you had not been snapped up but had had to wait around for a while before obtaining your first academic post. Outside the academic world, 'Dr.' or 'PhD' can make the bearer sound 'too academic.' I have always suspected that a PhD on the CV creates a negative impression on some people who have the task of assessing pupillage applications. The risk that years spent in libraries makes people too academic for practical professions is real, though avoidable. The perception of being 'too academic' would be unfair against a man like Mr McKenna, whose PhD's were earned in a large part on the basis of experience in his profession. In the case of 'Dr.', people can feel tricked when they discover one is not a 'real' (i.e. medical) doctor. This is how I felt when I discovered that John Reid's doctorate is in economic history. He unfailingly used 'Dr. Reid' as Health Secretary, but dropped it for 'Mr. Reid' when he became Home Secretary. Why? One wonders whether the use of "Dr." in his health role was a calculated deception to suggest that he had a medic's perspective on health issues, which ceased to be useful at the Home Office. So much for the pros and cons of the PhD title.

This brings me to the interesting point of the case for the practical lawyer. The case is a nice illustration of a defence of justification which depends on an interlocking nexus of objective fact and of the state of mind of the Claimant whose motives are impugned. In this case the justification defence depended on a nexus of objective fact about what the PhD involved, and its academic quality; and of subjective fact, about Mr. McKenna's honest belief concerning both the university's accreditation, and concerning the academic quality of the PhD and the kind of exercise he was engaged in when he undertook it. Central to the case was not the objective value of Mr. McKenna's first PhD itself, on which, as the judge said, opinions would vary. Mr. McKenna's state of mind was central. Mr. McKenna sincerely believed when he enrolled at La Salle that the doctorate would be a real and worthwhile qualification. Even after he discovered he been defrauded over the accreditation, he continued to believe the work he done to obtain that PhD had been valuable, and the fact he pursued the litigation tenaciously was evidence of that belief.

The PhD awarded by La Salle was based largely on life experience, and built on a collaborative book by Mr. McKenna which the university deemed the equivalent of a Master's degree. Taking that into account, the work which Mr. McKenna had to submit in order to pass was lest onerous than would be the case for a traditional PhD. Mr. Justice Eady accepted that Mr. McKenna had not 'bought' a bogus PhD because he had done some work for that PhD, and because he honestly believed that work was valuable work, and worthy of the qualification which he gained; whereas he was unaware of the university's accreditation problem.

One may infer that the defendants and their lawyers anticipated that the defence of justification was a sure-fire winner. The judge reports robust rhetoric from the correspondence which gives this impression. And yet, as the case progressed the grounds of the defence shifted, and ultimately it failed. The case also seems to likely to have been expensive, and the judge hints that the likely costs may have been disproportionate. So it is worth reflecting with the benefit of hindsight what lessons can be learned (leaving aside, for the sake this exercise, the possibility that it was simply a bad decision, which, in my respectful view, it was not).

So, accepting for the sake of argument the possibility that something went wrong with the defence's early case analysis, what was it that went wrong? I offer a narrow answer and a broad answer. The narrow answer, I suggest, is that they may have looked at the kind of PhD which Mr. McKenna got from La Salle, and asked themselves, 'Is it any good? Mr. McKenna himself applied for compensation. Mr. Kirk pleaded guilty to fraud. How can the PhD be anything other than bogus?' The problem for them was that this ground on which they stood was less solid than they had supposed. They had taken their eyes off the central importance of Mr. McKenna's state of mind. Mr. McKenna only prior academic qualification were three O-levels, and therefore he lacked the background to compare one university with another. He had taken a doctorate in good faith, and done real work on it which, and whilst it might not have satisfied the examiners at Harvard, was of its kind valuable and worthy of recognition. If the article had said that Mr. McKenna was a poor of judge of universities who offer postgraduate degrees, then who knows but that a defence of justification might have succeeded. In saying that he was the kind of person who goes out and buys a degree, they were making an allegation which from their point of view is perhaps subtly different but from his point of view is radically different, unfair, and much more wounding. It is important to consider what the defamatory words complained of 'mean' to the claimant, as well as what they would mean to the defendant's idea of the reasonable reader. This is not because the Claimant's possibly hurt feeling are relevant, but because there may be readers who share the Claimant's perspective, and who see what the defendants may fail to see (in this case I am suggesting that the defendants may have failed to see that obtaining a degree from a university such as La Salle could be regarded as admirable, and certainly not as automatically discreditable).

The broader point I make is the difficulty, and the importance, of putting oneself in the shoes of the other party. It is a safe bet that the authors of the article, the newspaper management, and the lawyers, all knew people who had taken doctorates by the traditional route, involving years of labour, high opportunity costs, and often high fees. Many of them would be from an Oxbridge background. Mr. Sparks doctorate was in music from City University, which an excellent music department (and, I note for prospective students who may be reading, an excellent law department). From their point of view a doctorate which imposes very much lighter burdens (over and above the life-experience the student has already obtained) is the butt of jokes. They cannot imagine why anyone would want to take such a degree, except to give themselves airs. They probably do not know anyone who has followed that type of training. Mr. McKenna's view of the situation was very different. He has achieved a lot in life, and he seems to value the formal assessment and recognition and further development of his achievements which this type of degree offers. Still taking a hypothetical view of what actually happened, and leaving aside the suggestion alluded to in the judgment that there was an anti-McKenna conspiracy, the defence should have stood in Mr. McKenna's shoes, and assessed the justice of the case taking into account his very different background and experience and perspective. Whatever the defendant's group of witnesses and lawyers might think of a PhD from La Salle, from Mr. McKenna's point of view one can see why he felt that the combination of his past experience and of his fresh research merited academic recognition, and why he wanted to clear his name of the false suggestion that he had bought a doctorate which he knew to be worthless.

The importance of looking at any case from the adversary's perspective is an obvious platitude, but worth repeating. Just how important, and how very difficult, it can be, McKenna v MGN shows.

Dr John Birchall - Professional English, Legal English, and Common Law Training