IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
General
1. Earlier and now this litigation is all about literary reputation, the defendants' and mine. See the Oxford's Appeal statement of 17th October 1990, Sir Roger Elliott's Bookseller letter of 1st June 1990, and Oxford's £500,000 spent on the case. The matter of literary reputation is evidently not trivial.
2. Reputation is an implied consideration of publishing contracts, for the loss of which damages are recoverable.
3. The protection of my literary reputation was the chief, express purpose of the agreement of 1st July 1992.
4. If there is no reasonable cause to answer here, why has Oxford spent over £65,000 on costs, instructed two QCs, and filed a 145-page statement?
5. If this application (Oxford's application to strike out my claim) is allowed or my injunction is denied, my career, already blighted, is likely to be forever obstructed by such Oxford derogation ("no fair hearing now", AM1.31). Again Oxford's contract (this time an ultra-solemn one) will have proved worthless.
6. If this application is allowed, the scope of the 'all time' clause 8 of the agreement of 1st July 1992 will remain forever unclear.
7. The 'without prejudice' correspondence of March to June 1992 leading to the agreement is not privileged. [Click for the first item in this linked series.]
8. Apart from Clause 7, of the agreement of 1st July 1992 implies undertaking the circulation of Clause 7:
(a) to defendants' servants and agents (second sentence of Clause 7 itself) - this undertaking was unfulfilled.
(b) to OUP employees in letters of 29/6/92, 27/6/02 - this undertaking was unfulfilled.
(c) to Hardy, Ryan, Charkin (rider to agreement) - this undertaking was unfulfilled. (note letter to Hardy of 6/7/92 AM1.118: botched heading, omission of Clause 7).
9. If this application is allowed, the breaches of agreement 7(a), (b), (c) above will go unredressed, and be likely to cause further breaches (further denigration).
Procedural objections to defendants' application evidence
10. Less than 10% of Mr Holmes' exhibit is relevant.
11. Mr Holmes is not attending for cross-examination: his evidence is hearsay.
12. Mr Holmes' "I am informed by Dr Ryan that..." is double-hearsay.
13. The letter from Professor Newell is missing from the exhibit.
14. The defendants' letter of 25/10/01 to Master Bowles was not copied to me.
Alan Ryan's central role in the 1985 contract and subsequent litigation
15. Ryan "got the ball rolling" for Making Names (AM1.27) with his first report (AM1.15).
16. Ryan's approval "got the book over the Delegates hurdle" (AM1.20 also AM1.48§9).
17. Hardy contracted the book with Dr Ryan's knowledge and support (AM1.22, 23, 25, 29).
18. Notwithstanding the ensuing row and Hardy's disciplining, Dr Ryan reiterated his support (AM1.28).
19. Ryan's support was quoted in the Delegates' Note drawn up for the book. (AM1.26).
20. Ryan attended the Delegates' meeting of 23/7/85 at which "the other titles were approved" (AM1.32).
21. Ryan advised the rejection of the revised script (AM1.35).
22. Ryan "can no longer give a dispassionate assessment" (AM1.39).
23. Ryan's absence from the trial was noted, and referred to in the judgment (AM.2.2-4, 9F, 21F-22E).
24. Ryan's role was publicly aired in The Bookseller magazine letter of 11/5/90 (AM1.41).
25. Ryan was referred to in the Court of Appeal judgment (AM4.5,7,16).
26. From the USA Ryan filed an affidavit for the damages assessment on 14/6/91: "the book would have sunk without trace" (AM1.46-51); still he was not cross-examined, but was quoted in findings (AM5.9).
27. During the settlement negotiation of May-June 1992, Ryan was repeatedly cited as the most likely transgressor of the non-denigration clause (AM1.95,101,105,107,109) and he was actually named in the final agreement (AM1.112).
The Delegates' involvement
28. The Delegates' role was explained by Henry Hardy on 26/4/85 (AM1.20).
29. The Delegates were ordered by the Court on 22/10/87 to ratify Charkin's actions, and were informed of this by me on 31/3/88.
30. The Secretary to the Delegates was ordered by the Court on 6/3/89 to produce the list of General Books for the Delegates' meeting of 23/7/85. (Sir Roger Elliott by affidavit of 12/7/89 deposed that there were "no lists").
31. In 1989/90 various ex-Delegates and university officers were contacted and subpoenaed; the subpoenas were set aside; these witnesses' costs featured in the settlement negotiation of May-June 1992.
32. At the trial in March 1990 six Oxford witnesses testified concerning the Delegates' role. Elliott repeated his "no lists" assertion.
33. On 21/4/90 all the Delegates were sent the judgment and Elliott's testimony.
34. In May 1990 Oxford's Respondents' Notice (AM1.43) relied on the Delegates' non-approval of Making Names.
35. On 1/6/90 The Bookseller magazine carried a derogatory letter by Elliott (AM1.42).
36. On 17/10/90 Oxford's public statement in the Court of Appeal was again derogatory (AM4.43-44).
37. The Secretary to the Delegates and the university Registrar were specified as 'principals' (AM1.79, 90).
38. Over 40 university individuals were in some way or other touched by the 1986-92 lawsuit.
Who is bound by the Consent Order of 1st July 1992?
39. Clause 7: "The defendants agree
(i) that they will not..." who are the defendants?
(ii) that their servants will not..." who are their servants?
(iii) that their agents will not..." who are their agents?
40. If 'the defendants' is an empty class, the agreement was void and fraudulent. This has not been argued.
41. Letters are written by individuals; there is no mention in the agreement of such writers needing "the authority of defendants".
42. 'The defendants' means, most obviously, the University's Registered Congregation (in lay usage and in legal usage).
43. In any case, over 80% of Congregation are The university's servants (employees).
44. The defendants' officers also are bound by implication (AM1.90 etc.). A Professor is an officer.
45. The Delegates are the defendants' agents (including ex-Delegates).
46. The Assessor of the university was/is its agent.
47. The Director of the Rothermere Institute is an agent of the university (evidenced).
48. People serving on university committees are the defendants' agents or officers.
49. In his THES letter, Ryan expressly acknowledges his status as an ex-Delegate (agent).
The New College defence
50. New College is a college of the university, i.e. of the defendants.
51. The original suit was against the university as whole, so a servant of New College is also a servant of the university.
52. Head of house is itself a university office or agency (the Warden's £1,800 college stipend is only a token).
53. The university has provided no evidence concerning Ryan's contract, salary, scale, payment method, perks, etc.
54. Ryan's situation is evidently not subject to conventional employment law definitions.
The Honorary Professor defence
55. The supposed distinction (between Professor and Honorary Professor) is unmarked (note Ryan's teaching workload AM1.10).
56. The distinction is in any case irrelevant: Honorary Professor is still an office of the university.
Counter-claim: the alleged breach by the claimant of Clause 6
57. The defendants' chief concern was confidentiality concerning the settlement figure, of which there has been no breach by the claimant.
58. Clause 7 of the agreement of 1st July 1992 and the preceding correspondence imply undertakings of disclosure (e.g. to OUP employees) of Clause 7 [see 8(a), (b), (c) above], so Clause 7 cannot not itself be confidential.
59. The claimant has nevertheless been scrupulously careful and has made no disclosure of Clause 7 in either fact or evidence.
60. Even if the claimant had disclosed Clause 7, it would not have been a breach of the agreement, given points 8(a), (b), (c) and 58 above.
Served and filed by Andrew Malcolm, the claimant acting in person, 4th January 2002