IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
I, ANDREW MALCOLM say as follows:-
1. I am the claimant and I make this statement in response to the defendants' application issued 12th October 2001 in respect of my claim served on 10th August 2001. A condensed version of this statement is also provided as a 3-page skeleton argument, together with a 5-page chronology.
2. The defendants are applying to strike out my claim pursuant to CPR Part 3.4(2) (a) "no reasonable cause", (b) "abuse of process", (c) "failure to comply" (not argued), or alternatively for summary judgment pursuant to CPR Part 24.2 "no prospect of success". I note that under RSC Order 18 rule 19 (2) no evidence is admissible on an application under 3.4(2) (a) "no reasonable cause", so this statement has to address the defendants' "abuse of process" and "no prospect of success" grounds. The defendants' stated reason is that when Professor Ryan wrote his THES letter of 13th April 2001, the subject of my claim, "he was not acting on behalf of the defendants or as their servant or agent".
3. To minimise the complication and duplication of paperwork, and because the hearing of the defendants' application amounts in substance to a hearing of my claim, I exhibit hereto eight exhibits AM1 (the yellow file) and AM2-AM8 (the blue file) as if they were the bundles prepared for the trial of the claim.
AM1 (the yellow file) consists of evidential documents page-numbered in pencil at the foot and sub-divided thus:1-11 University items: statute extracts, calendar pages etc..
12-37 Key evidence from the original contractual correspondence of 1985-6, with relevance to Professor Ryan's role in the breach of contract.
38-51 Items from the 1986-1991 litigation, including Professor Ryan's affidavit re. damages, filed from the USA (not cross-examined).
52-113 Correspondence with defendants' solicitors Clifford Chance negotiating the action's settlement, starting 14th May 1992, when they first raised a requirement of confidentiality.
114-118 1992 dust-jacket of Making Names and an ensuing correspondence.
119-181 2001 THES review of The Remedy, Professor Ryan's THES letter and the ensuing correspondence with the defendants' solicitors Clifford Chance and Manches. Manches submitted document list (AM1.172) includes only their exchanges with me since 16th October 2001, omitting their preceding and predecessors' correspondence, so I here exhibit my 'party-party' file complete.
AM2 (the blue file) is the judgment and order of then Deputy Judge Gavin Lightman dated 19th March 1990.
AM3 is the judgment and order of Lord Justice Stuart Smith re. security of costs of the Appeal, hearing date 28th September 1990.
AM4 is the judgment and order of the Court of Appeal dated 19th December 1990.
AM5 is the findings and orders of Master Barratt on damages, dated 15th August 1991 and 19th November 1991.
AM6 is the consent order and schedule dated 1st July 1992, sealed by Master Barratt.
AM7 is Professor Alan Ryan's THES letter of 13th April 2001 and my present Claim Form and Particulars, served 10th August 2001.
AM8 is the defendants' present Defence, served 20th September 2001.
GENERAL
4. Both my original action of 1986-92 and this present claim centrally concern the establishment and protection of literary and intellectual reputations, on the one hand the defendants' and on the other hand mine.
5. On 19th October 1990, the last day of my appeal, the defendants were invited by the court to make a public statement (AM4.43-44), in which they said:
"Oxford University Press has defended itself in this action to defend the status of its imprint which Mr. Malcolm has coveted. Notwithstanding what has been said in the evidence, all new titles published from Oxford have to obtain the approval of the Delegates. They are particularly concerned to maintain the high academic reputation of the scholarly and pedagogical books published in the name of the University. All the evidence available on Mr. Malcolm's final manuscript indicated that it did not reach the appropriate standard."
6. It has been estimated that in the 1986-92 litigation the defendants spent about £500,000 unsuccessfully defending their imprint's reputation 'against' my contracted book Making Names. Evidently literary reputations are not held by them to be trivial.
7. It is well established (and was again demonstrated by my case) that reputation or publicity is an implied consideration in a publishing agreement, and one for which an author is entitled to recover pecuniary damages in the event of the publisher's breach. Precedent cases include Tolnay and another v. Criterion Films [1936] 22 and Joseph v. National Magazine Co. Ltd. [1959] 1 Ch. 14 .
8. On the subject of reputation, in his trial judgment of 19th March 1990 (AM2.12D) in my case, Deputy Judge Gavin Lightman wrote:
"I cannot think that any order for specific performance [enforced publication] in this case would be practicable. I would, however, have been minded to indicate that a substantial award of damages was called for to recompense Mr Malcolm for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work."
9. In his damages assessment findings of 15th August 1991 Chancery Master Barratt awarded me £6,000 for my loss of opportunity to benefit reputation (AM5.16).
10. The subsequent solemn agreement and Consent Order of 1st July 1992 at the heart of this present claim not only arose from a breached publishing contract, but also expressly protected my authorial reputation from further public denigration by the defendants. From my side, apart from bringing the litigation to an end by financial settlement, this protection of my literary reputation from further such attacks was the agreement's chief purpose.
If my claim is struck out
11. Firstly, if the defendants' application to strike out my claim is granted (or if my claim fails), my already blighted career will forever be liable to further obstruction by Oxford. As foreseen and as carefully protected against in June/July 1992, every time I achieve any kind of critical success - against all the odds anyway - someone from Oxford, most likely Professor Ryan, will have a reason, a license, and even an incentive, publicly to go into print and again rubbish me and Making Names.
12. Secondly, if the defendants' application to strike out my claim is granted at this pre-trial stage, the parties will perhaps between them have spent over £65,000 (see paragraph 73 below) without either being any the wiser as to the scope (or lack of scope) of the defendants' Clause 7 undertaking of 1st July 1992, agreed to be of "unlimited duration". Besides the particular issue of Professor Ryan's status and his THES letter of 13th April 2001, the evidently contentious general question of the legal scope of the defendants' Clause 7 undertaking now demands judicial settlement.
13. Thirdly, whatever view the court takes as to the technicalities of Professor Ryan's status, if the defendants' application to strike out my claim is granted, certain ancillary breaches of contract explained in paragraphs 59, 60 and 61 below will also go unredressed, further adding to the likelihood of more future breaches of their Clause 7 undertaking.
14. Fourthly, once again a contract between myself and Oxford University, this time one of the utmost solemnity and sealed in court, will have proved to be utterly worthless.
Procedural objections to the defendants' evidence in this application
15. The defendants' application to strike out my claim is supported by a Witness Statement by the university Registrar David Holmes dated 9th October 2001 which I was sent by Manches under cover of a letter dated 16th October 2001 (AM1.160). Mr Holmes' statement comprises 9 pages (26 paragraphs) and exhibits three bundles of papers, DRH1 (56 pages), DRH2 (62 pages) and DRH3 (18 pages), totalling 145 pages in all.
16. On inspection, I submit that less than 10 percent of the papers exhibited by Mr Holmes are remotely relevant to this application or to any matter in issue between the parties in this claim. DRH2 and DRH3 seem to me to be irrelevant in their entirety (the latter concerns a remote counter-claim of the defendants), while much of DRH1 consists of deleted statutes (15, 18), illegible notes (12,13, 16, 17), blank forms (27-35), and unrelated minutes (43-49). There are even 13 numbered blank pages (DRH1.46, DRH2.6, 14, 16, 22, 32, 36, 48, 50, 52, 54, 56, 58). Altogether only 7 of the 136 pages exhibited personally relate to Professor Ryan.
17. Under RSC Order 41 rule 6 the court may order to be struck out any affidavit on any matter which is irrelevant or otherwise oppressive.
18. By letter from Manches dated 29th November 2001 (AM1.171) I was unexpectedly notified, without any reason being given, that Mr Holmes would not be attending the hearing for cross-examination. I respectfully submit that this renders his evidence hearsay and therefore inadmissible.
19. In any event, Mr Holmes' claims concerning Professor Ryan's status (paragraphs 11, 12, 15) are prefaced by "I am informed by Dr Ryan that..." and his paragraph 18 by "I am informed by Anthony Weale that..." making these claims double-hearsay without the testimony in court of Messrs Holmes, Weal and Professor Ryan. I respectfully submit that this further renders his evidence hearsay and therefore inadmissible.
20. A letter from a Professor Newell to Professor Ryan on which Mr Holmes wishes to rely (paragraph 20) is missing, without any explanation being given.
21. The defendants' list of documents, sent to me on 29th November 2001, reveals that, as subsequently admitted, on 25th October 2001 Manches wrote a letter concerning this application to Chancery Master Bowles, without sending me a copy (AM1.174-176). This is a breach of the court rules, which state: "all correspondence with Masters must be copied to the other parties."
22. I respectfully submit that on the grounds of the procedural irregularities detailed in paragraphs 16-21 above, Mr Holmes' statement should be ruled inadmissible, and the defendants' application be summarily dismissed, with costs.
23. In case, notwithstanding the above, Mr Holmes' statement and exhibits are held to be admissible, I shall now reply to their detail, making my statement comprehensive, that is, not only a rebuttal of the defendants' application, but a full argument of my claim.
THE HISTORY
Professor Ryan's role in the publishing contract of 1985
24. In August 1984 I submitted to the defendants a package of material introductory to a philosophical text I had written entitled Making Names. The material was passed to their senior General Books editor a Mr Henry Hardy, who in October asked to see the script (AM1.12). I sent him the script, expressly stating that I envisaged a final six-month session of revision and polishing (AM1.13, 14).
25. Mr Hardy at once sent the script to then Doctor Alan Ryan, a Reader in Politics at the university, in that year the university Assessor, and a Delegate of the University Press. Four months later Dr Ryan's first report (11th February 1985, AM1.15), in Mr Hardy's words, "got the ball rolling" for my book at Oxford (AM1.27). Doctor Ryan recommended the book's publication, subject to revisions, and cited its potential for A Level and Open University courses.
26. By letter dated 24th March 1985 (AM1.18) I carefully set out my negotiating position, seeking a firm commitment to the book's publication before embarking on any final revision of the book. In a phonecall to me on 26th April (AM1.20), Mr Hardy explained the role of the Delegates at OUP, stating that in his department their endorsement of books was not rigorously required and that anyway Dr Ryan's approval of Making Names "got it over that hurdle". In this connection, see also paragraph 9 of Dr Ryan's 1991 affidavit (AM1.48).
27. On 20th May 1985, having by then read the book himself, and with the stated support of Dr Ryan, Mr Hardy entered, by telephone, into a contract with me that, provided I fulfilled their revision requirements, the defendants would publish Making Names (AM1.22). Mr Hardy enumerated their requirements in detail (chiefly the book's shortening by 20 percent), expressly mentioning Dr Ryan's endorsement of them. Mr Hardy's commitment was confirmed in letters to me (AM1.23, 25) and in various subsequently discovered internal OUP documents. In the Delegates' Note drafted by Mr Hardy for the book (AM1.26), he quoted Dr Ryan's recommendation of it, and also from a favourable report by a third reader, Oxford philosopher Galen Strawson.
28. In July 1985 the book fell foul of an ongoing "power struggle" (Hardy's phrase) at OUP between Mr Hardy and his manager a Mr Richard Charkin, who wrote to me reneging on the defendants' contract and who instituted disciplinary proceedings against Mr Hardy, preparatory to his dismissal. Notwithstanding this row, on the day after it erupted Dr Ryan reiterated his support for the book's publication in a second report of 18th July 1985 (AM1.28), in which he compared its sales potential with two best-sellers'.
29. In a disciplinary appeal hearing at OUP in July 1985 Mr Hardy in his written defence (AM1.29) admitted having contracted Making Names' publication with me and stated that he had acted throughout with Dr Ryan's knowledge and support. In a telephone conversation with me at the time (AM1.31, line 365), he said: "Making Names is not going to get a fair hearing here now that it has been treated in this way".
30. In reply to Mr Charkin, I asserted my legal rights but declined any further dealings with OUP. Then, late in July 1985, having won his disciplinary appeal, Mr Hardy returned to me and urged me, after all, to embark upon the revision of the book as earlier agreed. He gave several additional assurances and in a letter to me of 30th July (AM1.33) he again listed the defendants' revision requirements in detail.
31. In September 1985 I began revising the book, and in October/November I sought and got Mr Hardy's interim approval of the book's first two revised chapters.
32. After seven months' work, I resubmitted the complete revised text in February 1986, with all the defendants' requirements fulfilled and many of them exceeded (this has never been disputed); in particular, I had shortened the book by 26 percent.
33. Three months later, by a handwritten note of 3rd May 1986 (AM1.35), Dr Ryan instructed a junior editor Nicola Bion to reject Making Names, and she in turn sent me a rejection (AM1.36), thereby for a second time breaching the university's contract of May 1985. Notwithstanding Ms Bion's opening sentence, it transpired that my revised script had been sent only to Dr Ryan and that his handwritten note was her only 'report'.
The legal proceedings of 1986-92
34. In September 1986, at the outset of the ensuing litigation, Dr Ryan declined to make a statement on the affair, stating that he "could no longer give a dispassionate assessment" of the book (AM1.38, 39). Soon afterward he emigrated to Princeton University USA, and took no further part in the proceedings until the damages assessment over five years later.
35. The Delegates were in due course drawn into the litigation by Master Barratt, who on 22nd October 1987 ordered their ratification of Mr Charkin's handling of Making Names. In March 1988 I wrote to all the then Delegates, inter alia to confirm their ratification.
36. On 6th March 1989 Justice Morritt ordered the Secretary to the Delegates Professor Sir Roger Elliott to produce the apparently missing list or records of the General Publications tabled at the Delegates' meeting of 23rd July 1985 (AM1.32). By affidavit dated 19th July 1989 Sir Roger Elliott denied the existence of any such list or records and was later, together with five other Oxford witnesses, ordered by Master Barratt to appear at the trial for cross-examination.
37. In the light of Sir Roger Elliott's implausible affidavit, in 1989 I contacted various ex-Delegates and other university officers who regularly handled the Delegates' papers. In the week before the trial, I served three of these individuals with subpoenas to attend the hearing, but on the day before it the three subpoenas were set aside by Master Barratt. I was then served with bills from the witnesses' lawyers totalling £8,625, which costs later became one of the issues to be resolved in the settlement negotiation of March-June 1992.
38. During the five-day High Court (Chancery) trial in March 1990, Deputy Judge Gavin Lightman QC asked why Dr Ryan was not giving evidence or had not been subpoenaed, and it was explained to him that the technical difficulties of so doing from the USA had proved insurmountable. Six Oxford witnesses testified that, despite the discovered evidence (e.g. AM1.26), Making Names had not been submitted to the Delegates. Sir Roger Elliott maintained his "no lists" stance. I lost the trial on the grounds that the book's initial print-run and format had not formally been agreed. Deputy Judge Lightman's judgment is at AM2 in the blue file; his remarks on reputation (at page 12D) are quoted in paragraph 8 above; Dr Ryan is specifically referred to at pages 2-4, 9F and 21F-22E.
39. In April 1990 I lodged an appeal on the print-run and format points, and again wrote to all the then Delegates enclosing a copy of Judge Lightman's judgment and drawing their attention to Sir Roger Elliott's testimony. In a letter to The Bookseller magazine of 11th May 1990 (AM1.41), I publicly aired Dr Ryan's role in the affair. Still he made no statement in the case.
40. On 1st June 1990 The Bookseller magazine published a letter on the case from Sir Roger Elliott (AM1.42) in which he denounced me as "obsessive" and Making Names as "lacking intellectual quality and commercial potential".
41. The defendants' Respondents' Notice rested their case chiefly on the disputed claim that the Delegates had not formally approved Making Names [AM1.44 para 2.(1)(i)].
42. Between the trial and the appeal, I received two anonymously-posted packages (Cambridge & Adrasteia) of OUP Delegates' papers including various General Book lists and indicating that Making Names had been approved by the Delegates at their meeting of 23rd July 1985, at which Dr Ryan had been present (AM1.32). I made two applications to present this unexpected new evidence to the court. Still Dr Ryan made no statement in the case.
43. On 28th September 1990, three weeks before my appeal, the defendants amended their respondents' notice, abandoned their "Delegates' non-approval" defence, and unsuccessfully sought security of their costs of the Appeal (blue file, AM3).
44. The appeal was heard on 17th-19th October 1990 and on its third day, the defendants were invited by the court to make a public statement on the affair, the subsequent written version of which is quoted in full by Lord Justice Mustill at AM4.43-44, and part-quoted at paragraph 5 above. In the statement I and my book are again denigrated.
45. On 18th December 1990 the Court of Appeal's judgment was handed down (blue file, AM4), with my appeal being allowed by a two-to-one majority and the court urging the parties to reach an out-of-court settlement. Dr Ryan is specifically referred to in the judgment at pages 5, 7 and 16.
46. In the absence of any offer from the defendants, in February 1991 I restarted proceedings to assess the damages to which I was now entitled. The defendants at once switched from their Oxford solicitors to the City firm of Clifford Chance and instructed Harvey McGregor QC as their leading Counsel. The defendants admitted that, despite the public statements mentioned in paragraphs 5, 40 and 44 above, they had kept no copy of the Making Names script, which they "now needed for evaluation".
47. In May 1991, the defendants made an offer into court (their first), but with my evidence and witnesses by then largely assembled, and with many costs and other issues between us still unresolved, I proceeded on to the assessment hearing set for 10th and 11th July before Master Barratt.
48. On 14th June 1991, Professor (by now) Ryan, filed an affidavit from the USA - his first and only statement in the case - in which he reversed all of his earlier opinions of Making Names, concluding instead that the book "would have sunk without trace" (AM1.46-51).
49. Besides Professor Ryan's, the defendants recruited affidavits from no less than twelve executives of major UK publishers to testify that Making Names, which none of them (except CUP's) had seen, was "unpublishable". These publishers included Penguin, Macmillan, Routledge, Blackwell, HarperCollins, Reed International, Cambridge University Press, The Open University and the A-Level Board. Despite a limit of two witnesses per side formally having been set, Master Barratt eventually allowed seven of these witnesses to testify on behalf of the defendants.
50. In addition, because his affidavit was filed from the USA, Professor Ryan was not subject to cross-examination at the hearing. Nevertheless, Master Barratt held Professor Ryan's affidavit also to be admissible and in his findings quoted from it as grounds for reducing my damages award (blue file, AM5.9).
51. On 15th August 1991 Master Barratt assessed my damages at £17,947.13 (AM5.17), £6,000 of which he awarded for my loss of opportunity to benefit reputation (AM5.16).
52. On 19th November 1991, on application by the defendants, Master Barratt reduced the damages by £502.40, calculated as the notional income tax deductible from the interest element of the award, and he also ordered me to pay the defendants' costs of instructing Harvey McGregor (AM5.19).
53. In December 1991 I appealed to the Court of Appeal for a higher award of damages (and against Master Barratt's costs ruling), and the defendants cross-appealed for a lower award. At the end of May 1992 the damages appeal was set down for hearing on 20th July 1992 (AM1.71).
Events leading up to the Consent Order of 1st July 1992
54. In the light of the defendants' statements mentioned in paragraphs 5, 40 and 44 above, their recruitment of the other major publishers against me, and Professor Ryan's long, exaggerated tergiversation, by July 1992 it had become clear to me not only that I had been denied any conventional career in writing, publishing or academic philosophy, but also that even as a lone outsider, all of my efforts to secure recognition for Making Names and its ideas were henceforth likely to be obstructed by established Oxford figures privately and publicly derogating the book, by way of justifying their own or their university's mis-handling of it.
55. Even without a carefully-negotiated in-court agreement on the point, one might have supposed that, given the history, Oxonians would thenceforth feel themselves under a moral obligation to stay silent on the merits or otherwise of Making Names.
56. In fact, the negotiation leading up to our agreement of the Consent Order of 1st July 1992 could hardly have been more meticulous, more solemn or more prescient. I first stated my fears about future Oxford denigration in a letter to the defendants dated 18th June 1992 (AM1.75), in reply to which they wrote on 19th June and 25th June (AM1.79, 89):
"...our clients will have no need to make a statement or otherwise refer publicly to your work" and "it will not be necessary for our clients to make any statements touching upon you or your work."
57. In the same two letters, Clifford Chance revealed that the 'principals' from whom they were taking instructions included the Secretary to the Delegates Sir Roger Elliott, the university Registrar, and an OUP officer Mr Ivon Asquith.
58. From this and the ensuing correspondence it is clear that Professor Ryan's THES letter of 13th April 2001 was precisely the sort of publication that the Order's Clause 7 was envisaged, intended and understood by both parties to prevent. Alan Ryan is repeatedly singled out in the correspondence as a likely transgressor (AM1.95, 101, 105, 107, 109), and despite his absence at that time from Oxford, he is personally named in the agreement (AM1.112). Any reasonable man fully aware of the facts would be likely to ask: "If Alan Ryan, back again at Oxford, is not bound by this undertaking, then who on earth is?"
59. The text of Clause 7 is quoted in full in the Particulars of Claim and in the Defence, so I will not repeat it here, save to note that it includes the following second sentence:
"For the purpose of giving effect to this undertaking, the defendants may disclose the text of this term to their servants and agents from time to time."
This sentence implies an undertaking on the defendants' part to disclose the text of this term to their servants and agents from time to time, which undertaking it has subsequently transpired they have failed to fulfill. This failure in itself constitutes a breach of the agreement, whatever view the court takes of the technicalities of Professor Ryan's status.
60. In addition to the undertaking of Clause 7 and its concomitant implied undertaking explained in paragraph 59 above, the defendants by letter dated 29th June 1992 (AM1.101, 106) undertook to notify all OUP employees of the text of Clause 7. It has subsequently transpired that the defendants also failed to honour this undertaking, a failure which therefore in itself again constitutes a breach of the agreement, whatever view the court takes of the technicalities of Professor Ryan's status.
61. In further addition to the undertaking of Clause 7 and its concomitant implied undertaking explained in paragraph 59 above, the defendants by letter dated 1st July 1992 (AM1.109) undertook to notify the named individuals Alan Ryan, Richard Charkin and Henry Hardy of the text of Clause 7, which undertaking, it has again subsequently transpired, the defendants also failed to honour. This failure therefore in itself again constitutes a breach of the agreement, whatever view the court takes of the technicalities of Professor Ryan's status.
62. The defendants have suggested (Defence paragraph 6a) that our 'without prejudice' correspondence of June 1992 is privileged, but of course it was privileged with respect only to the proceedings that then stood unresolved. Since the correspondence resulted in a binding agreement between the parties and in the staying of those proceedings, privilege in it automatically then lapsed. Halsbury's Laws 4th edition Volume 17 paragraph 213 states:
"The contents of a communication made "without prejudice" are admissible when there has been a binding agreement between the parties arising out of it."
63. In any event, the additional undertaking mentioned in paragraph 60 above was recently reiterated in an 'open' letter from Clifford Chance dated 27th June 2001 (AM1. 128, 130), while the further additional undertaking mentioned in paragraph 61 above can be regarded as merely a rider to the already-drafted agreement itself, having been faxed to me on the morning of my departure to London for the agreement's signing before Master Barratt.
Some of the subsequent history
64. After the settlement I myself financed the printing of a hardback edition of Making Names and 'launched' it in August 1992, under the imprint AKME. Its dust-jacket (AM1.114) made no reference whatever to the lawsuit, for I wanted the book to stand or fall untainted and on its own merits. However, despite their previous coverage of the court-case and a vigorous PR campaign, not a single national broadsheet newspaper reviewed or even mentioned Making Names.
65. In October 1992 Henry Hardy wrote to congratulate me on the book's 'publication', suggesting that its dust-jacket's silence on the lawsuit was a mistake (AM1.115). A bizarre correspondence between us ensued, in which he sent me a copy of a letter dated 6th July 1992 which he had received from Clifford Chance (AM1.118). This letter's botched heading and omission (rf. paragraph 61 above) are noteworthy. (Hardy's reference to a THES review was mistaken; there was in fact a TES review, but that is another story.)
66. Having secured a eulogy from Sir Karl Popper and a national distribution deal with W. H. Smith, in October 1993 I financed the further printing of a paperback edition of Making Names, this time with a cover and forewords outlining the lawsuit. Again, not a single newspaper reviewed or mentioned the book.
67. Five years later, in 1997, in response to requests from other would-be litigant-authors, I launched an AKME website featuring the legal precedents, judgments and so forth in my and other publishing-law cases and I began writing The Remedy, a factual account of the lawsuit. By request from certain interested readers, in 1998 I added a case-history file to the website (DRH3.1-6).
68. In December 1999 I financed a laser-printing of The Remedy as a paperback, but again, despite a vigorous PR campaign, not a single national newspaper reviewed or mentioned the book. The THES, in particular, was immediately dismissive of it.
69. When Henry Hardy's review of The Remedy (AM1.119) appeared in the THES over a year later, on 30th March 2001, it thus had not been sought or engineered by me and came as a complete surprise. I understand that Mr Hardy had borrowed a copy from an acquaintance at Wolfson College and himself had asked the THES if he could review it for them. It should be noted that in his review - chiefly a garbled re-run of the 1985 saga - he does not reveal his personal role in the affair, which he recounts in the third person; nor does he name the Delegate involved. Professor Ryan's response letter of two weeks later is exhibited at AM7.1.120.
70. Mr Hardy writes at the end of his first paragraph that he finds the almost total silence of the media on my two books "mildly sinister". I must say, in passing, that I find it mildly sinister that the only published review of The Remedy should have been written by, arguably and obviously, the last person in the world capable of giving it a fair appraisal.
The 2001 proceedings
71. After taking legal advice, I instructed solicitors Davenport Lyons to act for me, seeking an injunction restraining the defendants, and in particular Alan Ryan, from further public derogation of Making Names or of myself (AM1.121&ff). From the outset there has been no defence that Professor Ryan's letter was not derogatory, only that, for alleged technical, collegiate reasons, Professor Ryan was and is not bound by the agreement of 1st July 1992. A protracted but fruitless correspondence ensued, resulting in my acting in person from 12th July (AM1.131) and my serving of the Claim Form on 10th August 2001 (AM7).
72. On 3rd September 2001, two days before their service of Defence was due, the defendants abandoned Clifford Chance, their solicitors since 1991, and instructed instead Manches of Oxford (AM1.139). This change of solicitors caused further delay.
73. On 8th and 11th October 2001 respectively, I and the defendants filed Allocation Questionnaires estimating our costs up to that date and of the claim overall, which figures were entered as: £4,000 and £5,000 (mine, before my receipt of Mr Holmes' 145 pages) and £26,000 and £70,000 (the defendants', see AM1.158). The defendants' estimates of the hearing-times were 1 day for their application to strike out and 1-2 days for my claim. These estimates suggest that by the end of the striking-out hearing the parties' combined costs could well be over £65,000.
74. Already, this presents a contradiction: if my claim discloses no reasonable cause or has no real chance of success, why will its defence require £70,000, the services of a senior QC, a 145-page statement from the Registrar concerning obscure, technical relationships between the university's and its colleges' officers and so forth?
THE TECHNICALITIES: SOME RESPONSES TO MR HOLMES' STATEMENT
The Scope of the Consent Order of 1st July 1992: Who is bound by its Clause 7?
75. The undertaking in Clause 7 consists of several disjunctions, which include:
(i) The defendants agree that they will not solicit the publication of any derogatory letters about the quality of the plaintiff's work Making Names.
(ii) The defendants agree that their servants will not solicit the publication of...
(iii) The defendants agree that their agents will not solicit the publication of...
This gives rise to the three following questions of scope:
(i) who are the defendants?
(ii) who are their servants?
(iii) who are their agents?
Who are the defendants?
76. The defendants (in Mr Holmes' paragraph 4) invoke their 1571 Act of Incorporation (AM1.1), which states, inter alia:
"Be it therefore enacted by the Authority of this present Parliament, That the Right Honourable Robert Earl of Leicester now Chancellor of the said University of Oxford, and his Successors for ever, and the Masters and Scholars of the same University of Oxford for the Time being, shall be incorporated and have a perpetual Succession in Fact, Deed and Name, by the Name of the Chancellor, Masters and Scholars of the University of Oxford... And further, that as well as the Chancellor, Masters and Scholars of the said University of Oxford, and their Successors, by the name of the Chancellor, Masters and Scholars of the University of Oxford... may severally implead and be impleaded, and sue and be sued for all manner of Causes, Quarrels, Actions Real, Personal and Mixt, of whatsoever Kind, Quality or Nature they be..."
77. Mr Holmes' paragraph 4 states:
"The Chancellor Masters and Scholars of the University of Oxford" is a legally distinct person from those individuals who are at any particular time the chancellor, masters and scholars."
If this is taken to mean that "the defendants" is an empty class, i.e. that no-one, not even the Chancellor, is bound under 75(i) above, then it has to follow that the Consent Order of 1st July 1992 and the defendants' letters of (for example) 19th, 25th and 29th June (AM1.79, 89, 101) were void and fraudulent, or constituted, in Lord Justice Legatt's phrase (AM4.54§2), "a valueless assurance". This line is nowhere taken in the Defence.
78. The defendants' Clause 7 undertaking of 1st July 1992 concerns the writing of letters for publication. Letters are written only by individuals, not by abstract legal entities or by empty classes. Nor is there any mention in the undertaking of such letters needing to be written "with the authority of Congregation" or "with the authority of the defendants", whatever those phrases might be taken to mean (rf. Defence paragraph 9d and Mr Holmes' paragraphs 13, 16, 20 and 22).
79. I respectfully suggest that the obvious modern successors to "Robert Earl of Leicester and the Masters and Scholars of the same University of Oxford for the Time being", by the simplest and most natural and most practical definition, are at any given time the members of the university Congregation, as set out in university Statute II (AM1.2) and as kept on a register continually maintained by the university Registrar (e.g. AM1.6).
80. To a non-lawyer 'reasonable man', the Congregation offers the most literal meaning of the phrase "The Chancellor Masters and Scholars of..." and corresponds most closely to the scope in lay-usage of the phrase "the members of the university".
81. Legally speaking, the Congregation is the modern university's ultimate legislative body and corporate legal entity or persona. In particular, the Congregation has ultimate legal authority over the University Press. It exercises this authority through a committee of Delegates, chosen from the members of Congregation by a Nominating Committee whose members are also chosen by a system of rotation from the members of Congregation. It is the Congregation which 'owns' the University Press. For example, under the university's constitution, it is only the members of Congregation who, by a vote, could decide whether or not to sell all or part of the University Press to a private buyer or whether and how it might otherwise be reconstituted.
82. In any case, by a rough calculation, over 80 percent of the Congregation are salaried academic and teaching staff of the university, so they would additionally or alternatively qualify as servants of the defendants.
83. Should the defendants' lawyers at this point seek to drive any kind of legal wedge between the university Congregation and the University Press, I would note that from quite early in the original proceedings (see paragraphs 35-44 above), when discovered Delegates' papers apparently suggested that Making Names had formally been approved by them (AM1.32), several senior university (as opposed to OUP) figures became personally involved in the litigation, and that for six months during the Appeal proceedings, the university rested its entire defence on the issue of the Delegates' approval of the book (AM1.44, paragraph 41 above) and again, see the defendants' public apology AM4.43-44, paragraph 5 above). By the time of the 1992 settlement, apart from the dozens of OUP employees involved in the action, up to forty university individuals (members of Congregation) had thereby in one way or another personally been touched by the lawsuit.
Who are the defendants' officers?
84. The phrase 'the defendants' officers' does not feature in the Agreement of 1st July 1992 itself, but it does appear in the defendants' contextual letter to me of 25th June 1992 (AM1.89), as in "the defendants' former officers or employees" and it also appears, and goes unqueried, in several of my letters to the defendants. This suggests that 'officers', as in any case might be thought natural, are taken to be included by the phrase 'servants and agents', which in turn suggests that Professor Ryan, being on numerous admitted counts an officer or office-holder of the defendants, is therefore at once included by the phrase 'the defendants' servants and agents'.
Who are the defendants' servants?
85. Whoever else may be included, it is surely incontrovertible, and it is apparently conceded by Mr Holmes, that anyone who draws a university salary is such a servant, including its academic professors, lecturers and readers, and the Officers of the university, as set out in Titles X (AM1.5) and IX of the university Statutes.
86. Whoever else may be included, it is surely incontrovertible, and apparently conceded by the defendants' letters of 29th June 1992 and 27th June 2001 (AM1.101, 106, 128, 130) that anyone who draws a University Press salary is also a servant of the defendants.
Who are the defendants' agents?
87. Whoever else may be included, and whether salaried or otherwise, it seems incontrovertible that anyone appointed to sit on a university committee, such as the Committee of Delegates of the University Press, is by definition an officer or agent of the university and hence of the defendants (AM1.4).
88. Whoever else may be included, and whether salaried or otherwise, it seems incontrovertible that anyone who holds university posts such as the Assessor of the university or the Director of the university's Rothermere American Institute is by definition an officer or agent of the university and hence of the defendants.
89. The Defence and Mr Holmes are largely silent on Professor Ryan's role as one of the Delegates, the committee of about 22 dons nominated from Congregation to be responsible for the affairs of the University Press. Every year, two or three serving Delegates leave the committee, and two or three new Delegates are nominated, generating a perpetual rotation of members. From this silence of the Defence one may infer:
(a) that the defendants would concede that the Delegates of the Press are agents of the defendants, and(b) that they are intending to argue that Professor Ryan was therefore an agent of the defendants in 1985/6 when on his authority my book was contracted, but was not an agent of the defendants in April 2001, being by then no longer a Delegate.
90. To counter such an argument, one could suggest that, in the context of this history, the Delegates' perpetual rotation, and an undertaking that was stated in 1992 to be "of unlimited duration", the phrase "the defendants' agents" should be taken to include "members of Congregation who are or who have at any time been Delegates of the University Press".
91. The Defence states (paragraph 9d) that "Dr Ryan submitted the letter in his own personal capacity and not in the capacity of any of his positions..." In fact, in the second paragraph of the letter (AM1.120), Dr Ryan actually introduces himself as:
"the Delegate of Oxford University Press (myself), who was initially so keen on Malcolm's Making Names"
In so writing he expressly acknowledges his status as an agent or officer of the defendants.
The New College defence
92. I accept that in certain contexts and for certain purposes the university and its colleges may at present be regarded as separate financial and legal entities; that, for example, if my original suit had been against New College and had resulted in an undertaking being made on behalf of its servants and agents, such an undertaking would not necessarily have been binding upon the servants and agents of the other colleges or of the university as a whole. However, the converse does not follow. My original suit was against the university as a whole, so, given that under the Statutes Title VII s.1 (AM1.3) New College is a college of the university, it follows that a servant of New college is also a servant of its greater master, that is of the university.
93. About 85 percent of the members of the university (as defined by the Register of Congregation, e.g. AM1.8) are also members of colleges, so the 'college-membership defence' by itself would at once automatically rule out most of the acknowledged "servants and agents of the defendants", including, for example, 100 percent of the OUP Delegates, thereby at once making a nonsense of any agreement made by the defendants.
94. Even were I to accept, which I do not, that Professor Ryan's entire income derives from his "employment by New College", and that he derives no salaries, allowances, stipends, emoluments, grants, fees or any other kinds of financial advantage (e.g. the use of an office, rf. Mr Holmes' paragraph 21) from any of his numerous other university teaching posts, offices and appointments, it would not follow that he is not at the same time a servant or agent of the university. A headship of house such as the Wardenship of New College could in itself be argued to be a university office or agency.
95. I note that under the New College Statutes (DRH1.10 para 8), the maximum yearly stipend received from New College by its Warden amounts to just £1,800 (plus accommodation), suggesting that this appointment is financially a token one, by no means conferring a conventional legal employer-employee relationship. In Mr Holmes' exhibits, this small stipend is Professor Ryan's only visible means of support.
96. Nowhere in Mr Holmes' exhibits are there any documents relating to Professor Ryan's personal employment by New College as its Warden. There is exhibited no contract of his employment by New College, or indeed by any other institution. There is no record of his agreed salary, and there are no bank statements or other records demonstrating how much and by whom he is paid.
97. As it happens (although strictly this is irrelevant to the present claim, while perhaps worth mentioning nonetheless), during the earlier litigation I did sometimes feel as though I was suing, or was particularly 'up against' New College. During the damages assesssment hearing, I found ex-New College Alan Ryan's absent testimony being orated by his predecessor as New College Warden, Harvey McGregor QC, to Chancery Master Barratt, himself also a New College man; Sir Roger Elliott too was a Fellow of New College. My attention was not drawn (by an outsider) to Master Barratt's own New College background until some way into the proceedings, and, I should hasten to add, it never became any kind of an issue in them.
The Honorary Professorship defence
98. The distinction between professors and honorary professors is nowhere marked in the university Statutes or Calendar, where Alan Ryan appears under Faculty of Social Studies as plain 'Professor of Politics'. His current university teaching workload is indicated by the two pages from his extensive website exhibited hereto at AM1.10, 11.
99. The arcane reasons and mechanisms behind the university's conferment of its titles seem to be of no legal relevance to any issue in this claim. It is clear that a Professorship of the university, whether honorary or not, is an office of the university. Professor Ryan is therefore an officer of the university and as such is included under the phrase "the defendants' servants and agents" (see paragraph 84 above).
100. It seems to be another perverse and unsustainable conclusion of the defendants' position that in 1985/6 then Alan or Doctor Ryan, a Lecturer-turned-Reader in Politics, would have counted as one of the defendants' servants or agents, but that by his rise up through the university hierarchy to the level of (Honorary) Professor, acquiring a Wardenship, multiple Chairmanships and an Institute Directorship along the way, he has ceased to enjoy any defendant status whatever.
The Conference of Colleges
101. I confess that I do not understand Mr Holmes' paragraphs 14 and 15 very clearly, but Professor Ryan's admitted ex-Chairmanship and present Representativeship on the Conference of Colleges, and his Deputy Chairmanship of the Conference's Admissions Executive all sound, prima facie, like important university offices or agencies, and I am puzzled by the apparent contradiction of paragraph 16: "Professor Ryan does not act of behalf of the [university] in any capacity in connection with these positions."
The Rothermere American Institute
102. It seems to be conceded (Mr Holmes' paragraphs 18, 19 and 22) that in his capacity as the Director of this university institute Professor Ryan is an agent of the defendants, a fact which is in any case evident from the responsibilities and powers ascribed to him in the letter of 23rd July 2001 from Jeremy Whitely (DRH1.54) and is presumably further confirmed by the missing letter from Professor Newell (rf. Mr Holmes' paragraph 20). I assume that Mr Holmes' lapse in his paragraph 19 into the past tense was inadvertant and that it and Professor Ryan's powers should be restored to the present.
103. It should be noted that in paragraph 75(iii) above, the word 'agents' is in the general and is not confined to any of the subclassifications of the term listed, for example, in Halsbury. Thus if it were held that Professor Ryan is no longer an agent of the university by virtue of the expiration of his former OUP Delegateship, it could at the same time be held that he is such an agent nevertheless by virtue of his present Directorship of the Rothermere American Institute or by virtue of any of the other university positions he presently holds.
My own observance of the undertakings of 1st July 1992
104. It will be clear from a study of my 'without prejudice' correspondence with the defendants of May-June 1992 (AM1.52-90) that their chief concern was my confidentiality with respect to the financial sum agreed in full and final settlement of the case. Evidently they were very worried about the figure becoming known (a) because of the bad publicity for them that might accrue from its publication and (b) because of the precedent it might thereby apparently set for other similarly aggrieved authors.
105. The defendants' worries on this score were so acute that initially they proposed (14th May 1992, AM1.54 para 8), before their reciprocal Clause 7 undertaking had been mentioned, that the agreement should be governed by a penalty clause stipulating my repayment to them of the entire settlement sum plus interest in the event of any breach by me of this confidentiality.
106. I have never revealed the settlement figure to anyone, despite being asked on numerous tempting occasions to do so. The defendants have never produced any allegation or evidence that I have ever breached this confidentiality, for which their Clause 7 undertaking may be regarded as a quid pro quo.
Is Clause 7 itself confidential?
107. Although Clause 6 states that "the undertakings of confidentiality apply to each and every term of the agreement", Clause 7, as logically it must, contains the apparently contradictory provision:
"For the purpose of giving effect to this undertaking, the defendants may disclose the text of this term to their servants and agents from time to time"
This implied undertaking (see paragraph 59 above) and the ancillary undertakings mentioned in paragraphs 60 and 61 above allow and oblige the defendants to disclose the text of Clause 7 from time to time to several thousand people. This obligation to disclose Clause 7 therefore plainly overrides, and was intended to override, the blanket stipulation of confidentiality in its preceding paragraph 6, and must therefore do so for both parties.
108. As recounted in paragraph 65 above, after the 'publication' of Making Names in 1992, Mr Hardy and I conducted a bizarre correspondence, in the course of which he sent me a copy of a letter dated 6th July 1992 he had received from Clifford Chance (AM1.118). This suggested to me that the defendants might be in breach of their undertaking explained in paragraph 61 above.
109. Subsequent (oral) communications with OUP employees suggested to me that they had not been circulated with any memorandum of the kind undertaken by Clifford Chance's letters of 29th June 1992 and 27th June 2001 (AM1.101, 106, 128, 130), and that the defendants were therefore also in breach of their undertakings explained in paragraphs 59 and 60 above.
110. These suspected breaches of the undertakings of paragraphs 59, 60 and 61 above seemed to me to increase the likelihood of there being, sooner or later, a breach of Clause 7 itself, so arguably I would have been justified, and perhaps even morally obliged, to disclose the text of Clause 7 to those who are in law bound by it, namely the Chancellor Master and Scholars of the University of Oxford and their servants and agents.
111. In fact, however, aware of the potential arguments over confidentiality, and largely ignorant of what had and had not been happening at the university (e.g. of who had and had not been informed of their obligations under Clause 7), I was and have since been scrupulously careful not to disclose this or any other of the agreement's terms to anyone.
112. Apparently the defendants have combed the AKME website for any evidence to the contrary, but in none of the files they exhibit, the case history (DRH3.1-6, posted on the website in 1998 and updated), the Times Literary Supplement article The War for Jericho (DRH3.7-17, posted on the website in 1999, annotated) or my letter to Mr Hardy of 15th November 1992 (DRH3.18, posted on the website in 2001, annotated), is Clause 7 recited. At four points in these files (DRH3.5,8,11,18) the existence of a condition of the settlement is alluded to, but nowhere is the undertaking disclosed.
113. At DRH3.11 (but omitted in the Defence paragraph 10), I even advise members of Oxford who are ignorant of Clause 7 to consult their solicitors Clifford Chance, while at DRH3.18 I deliberately did not post on the website Clifford Chance's letter of 6th July 1992 to Mr Hardy (AM1.118) in case so doing could be argued to be a breach by me of Clause 6, even though that letter of itself is not confidential and does not, as it should, disclose Clause 7.
114. In summary of this point, I submit that, even if, contrary to paragraph 107 above, I am held to be bound by confidentiality with respect to Clause 7 of the agreement, nowhere in either fact or the defendants' evidence have I disclosed it, and that even if I had ever done so, given the defendants' own unfulfilled undertakings concerning it (see paragraphs 59, 60 and 61 above), it would not have constituted a breach of the agreement, in either spirit or technicality.
115. In overall conclusion I submit that my claim is sound, important (at least to me), and that it has every prospect of succeeding. I therefore respectfully submit that the defendants' application should be dismissed, with costs.
116. I believe that the facts stated in this witness statement are true.
Signed Andrew Malcolm
Dated 4th January 2002
Served and filed by the claimant acting in person, 4th January 2002