IN THE THE COURT OF APPEAL
Appeal No: A3/2002/0261
In his judgment (J5) of 24th January 2005:
1. The learned judge wrongfully misquotes paragraph 7 of the Consent Order of 1st July 1992 ("paragraph 7"), whose construction is the crux of my claim (see Skeleton hereto Sk1).
2. The learned judge wrongly construes paragraph 7, which from both its own second and third sentences and its contextual correspondence was clearly intended by both parties to 'engage' letters written by individuals, such as Dr Ryan's in the THES of 13th April 2001 (see Sk2).
3. In his construction of paragraph 7, the learned judge wrongly denies (J19) that its second sentence implies an undertaking by the defendants to notify their servants and agents from time to time, an ancillary undertaking unfulfilled by them (see my Particulars PC6 & Statement WS59).
4. In relation to 3 above, in his attempt to construe paragraph 7, the learned judge wrongfully ignores, and in his judgment does not even mention, arguably the most important single item of evidence, namely a 1992 "Memorandum (instruction) issued to OUP employees" (see Sk4).
5. In his construction the learned judge wrongfully "did not explore" (J20) a letter faxed to me on the morning of the Consent Order (AM1.109), in which the defendants undertook to notify Dr Ryan of paragraph 7, another ancillary undertaking unfulfilled by them (see PC6, WS61, Sk5).
6. The learned judge was wrong to hold that, on the evidence and in the context, Dr Ryan was not 'engaged' by paragraph 7's phrase "the defendants, they, their servants and agents, or any of them", for numerous reasons [see Sk6(a)-(g)].
7. Alternatively, if, notwithstanding 1-6 above, the learned judge's construction of paragraph 7 is upheld (J18-24, 35), he wrongfully awarded the defendants their costs, for on his construction the defendants (their City solicitors) in 1992 wrongfully purported to give me (a litigant in person) their warranty against derogatory letter-writing by their individual servants and agents (see Sk7).
Remedies sought
It be ordered
1.
(a) that my claim of 8th August 2001 be allowed and that there be issued an injunction restraining the defendants, their servants and agents or any of them, and in particular Dr Ryan, from further breaches of the Consent Order of 1st July 1992, and
(b) that the defendants do pay the claimant's costs in the Court of Appeal and in the lower court
or, alternatively (see Grounds and Skeleton hereto, paragraph 7)
2. that the learned judge's order as to costs be set aside and that the defendants do pay the claimant's costs in the Court of Appeal and in the lower court
or, alternatively
3. that the learned judge's order as to costs be set aside and that no order be made as to costs.
1. In his judgment (J5) the learned judge misquotes paragraph 7 (below) of the Consent Order of 1st July 1992. His translation of
"7. The defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the plaintiff or about the merits or quality of the plaintiff's work Making Names . 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. The defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of any derogatory statements, letters or articles about the plaintiff or about the merits or quality of the plaintiff's work Making Names ."
to
"7. The University agree that it, its servants and agents, or any of them, will not publish or solicit the publication of... etc."
and in particular of "they" to "it" is already contentious. The defendants' Counsel spoke at the hearing of "seven centuries of mystery" surrounding the phrase "The Chancellor... etc."
2. In his judgment (J24, 35) the learned judge construes paragraph 7 to 'engage' only derogatory letters "prompted or authorised by the University" and when pressed to explain this construction at the hearing said that such letters would need "approval by the University Council" to qualify. This at once prompts several objections:
(a) This was clearly not the intention of the parties to the contract in 1992, firstly from paragraph 7's second and third sentences, and secondly from the contextual correspondence and in particular from the "Memorandum to be issued to OUP employees" (see 4, following) all of which demonstrate that the parties' intentions and the agreement's purport were to prevent derogation of me and my book by individuals (see also J21). Paragraph 7 mentions no letter-qualification such as "approved by Council" (and no writer-exclusions such as "except by members of New College" or "except by Heads of House").
(b) The learned judge's construction would afford (have afforded) me no more protection than if paragraph 7 had read simply:
"7. The defendants agree not to publish or solicit the publication of any derogatory statements, letters or articles about the plaintiff or about the merits or quality of the plaintiff's work Making Names."(c) Chancery Master Barratt insisted on overseeing the Consent Order precisely to avoid any such ambiguities and was himself absolutely satisfied that individuals' letter-writing was engaged by its paragraph 7 as drafted, otherwise he would not have sealed the Order. I do not know if Master Barratt's notes on the 1992 agreement are still available, but if they are, perhaps they should now be produced for the Court of Appeal.
(d) By the University Statutes (Title IV.1&ff, Title II s.V.1&c.) a 'Council-approved' letter as conceived by the learned judge would be a practical impossibility and in the case of OUP employees, who are not members of the University Congregation, an absolute impossibility.
(e) Such a construction would render any alleged breach of paragraph 7 unprovable, requiring impractically wide discovery of University Council meeting minutes and suchlike.
(f) The learned judge's construction would therefore afford (have afforded) me and my literary reputation no practical protection from derogation by the defendants, their servants and agents and thus robs the Consent Order of mutuality, affording me no quid pro quo for my all-time (and ten-years-observed) undertaking of confidentiality (paragraph 6).
3. The learned judge argues (J19) that the second sentence expresses only a "may", not a "must". Whether in strict contractual terms it is either a "may" or a "must" it would certainly lead any reasonable man to suppose that the defendants intended and were going so to notify their servants and agents from time to time. The inclusion of the second sentence was expressly sought by the defendants themselves (AM1.101). The only possible reason for its inclusion was to prevent letter-writing by individuals.
4. Copies of the "Memorandum to OUP employees", described by the defendants as "an instruction to be issued to our servants and agents" were sent to me twice, in both June 1992 (AM1.106) and June 2001 (AM1.130, copy attached). This document was/is not headed or covered by "without prejudice" privilege, and reads as follows:
"The Press [OUP] and Andrew Malcolm have agreed to settle their outstanding claims, but are bound by mutual undertakings of confidentiality as to the terms of the settlement.
However, since it is binding upon you, you should be aware that one of the settlement terms reads as follows:
'The defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names .'"
By their despatch to me of copies of this Memorandum, the defendants
(a) demonstrated that, in concurrence with my and Master Barratt's understanding, their intention and purport was to prevent derogatory letter-writing by their individual servants and agents, and(b) implied an undertaking to issue this instruction to their servants and agents from time to time, which ancillary undertaking they failed to fulfil (see PC6, WS60).
5. The defendants' "unexplored" faxed letter to me of 1st July 1992 (J20, AM1.109, copy attached) includes the paragraph:
"We shall notify Henry Hardy, Alan Ryan and Richard Charkin on behalf of the Press of the terms of paragraph 7, and request that they not publish or solicit the publication of derogatory statements letters or articles about you or about the merits and quality of Making Names ."
and concludes:
"...our clients now confirm their agreement that all outstanding issues have been covered."
6. The learned Judge was wrong to hold that, on the evidence and in the context, Dr Ryan was not engaged by paragraph 7's phrase "the defendants, they, their servants and agents, or any of them", for the following reasons:
(a) As the OUP Delegate who in 1985/6 was responsible for the defendants' breach of contract to publish Making Names , who in 1991 by affidavit then rubbished it, and who in 1992 was personally named in the Consent Order's paragraph 7, Dr Ryan, back in Oxford, was its obvious prime intended 'target'. In his THES letter, Dr Ryan introduces himself as: "The Delegate of OUP (myself) who was initially so keen on Malcolm's Making Names ..."
(b) In relation to (a), the learned judge writes at J3 that "Dr Ryan did not attend or participate in the trial", but then wrongfully omits to mention that Dr Ryan participated centrally in the ensuing damages proceedings by filing an affidavit in June 1991 from the USA, in which he concluded that "Making Names would have sunk without trace" (AM1.46-51).
(c) In the context of an unusually complex and amorphous 'employer' like an ancient collegiate university, the standard lawyers' phrase "servants and agents, or any of them" should be applied in an appropriately general and reasonable way.
(d) Since the defendants in 1992 expressly excluded Dr Ryan from the scope of the Consent Order on the grounds that he was at that time "no longer an employee or officer" of the defendants, their lawyers' suggested phrase in paragraph 7 "their servants and agents" should be taken to include "their employees and officers".
(e) At the time of writing his THES letter Dr Ryan had no contract of employment with either New College or the University, so even in strict employment-law terms, his status was/is ambiguous. His only relevant contracts of employment have been with the university, as a lecturer (1969-78) and a reader (1978-88) of the university faculty of social studies.
(f) In holding (J29) that Dr Ryan, as a Head of House whose Professors'-scale salary is paid via his college, is an "independent contractor" not engaged by the phrase "the defendants, their servants and agents", the learned judge implies the perverse, unsustainable conclusion that the university's Vice-Chancellor and Pro-Vice-Chancellors, all of whom have to be Heads of House, (and over 50 percent of the Hebdomadal Council) are also not defendants or servants or agents of the defendants, of which they are the highest authorities.
(g) At the time of writing his THES letter, Dr Ryan was:
(i) Deputy Chairman of the University's Joint Undergraduate Admissions Committee
(ii) Deputy Chairman of the University Admissions Executive Sub Committee
(iii) Chairman of the University Equal Opportunities Committee
(iv) A member of the University Degrees by Diploma and Encaenia Honorary Degrees Advisory Committee
(v) A member of the Committee for the University Careers Service
(vi) A member of the University's College Contributions Committee
(vii) A member of the Conference of Colleges (Heads of House ex officios)
(viii) A representative of the Conference of Colleges on the Joint Committee for the Co-ordination of University and College Fund Raising
(ix) The Director of the University's Rothermere American Institute
(x) A member of the electoral boards for appointment to University Professorships associated with New College and the Rothermere American Institute
(xi) A member of the University Congregation
(xii) Entitled by (i) to (xi) above to help to appoint to at least 74 University posts
(xiii) A titular Professor of Politics, so appointed by the University's Faculty of Social Studies for his teaching services to the Faculty
(xiv) Delivering a University Lecture Course on Political Philosophy, and therefore
(xv) In receipt (via New College) of a University Professor's-scale salary
(xvi) Supervising University Graduate students for regular payment by the University
(xvii) Warden of New College, a University office
(xviii) Personally centrally involved in the 'streamlining' reform of the University's governance (so credited and quoted in a 2-page THES article, 11th January 2002)and had recently been (until October 1999)
(xix) Chairman of the Conference of Oxford Colleges and thereby, ex officio
(xx) A member of the University Council, and
(xxi) A member of the University General Purposes Committeeand will shortly, by virtue of his college Wardenship, be appointed
(xxii) A Pro-Vice-Chancellor of the University.Evidence on all of these points except (xii) was before the learned judge and was wrongly ignored or misconstrued by him. The article in (xviii) was intoduced at the hearing (AM1.11f).
7. Alternatively, if the learned judge's extremely narrow construction of paragraph 7 is upheld (J18-24, 35), resulting in my lack of any practical protection, this means that the Consent Order of 1992, which was largely drafted by the defendants' City lawyers Clifford Chance, and which was clearly intended by them, their clients and Master Barratt to engage derogatory letter-writing by individual servants and agents of the defendants, was drafted incompetently or perhaps even fraudulently, in that it purported to afford me (a litigant in person) protection which in law (according to the learned judge) it was unable to afford, with all the consequences in terms of costs and lack of reciprocity that have since followed.
8. It should be noted that at no time during the negotiation of the agreement in May-July 1992 did the defendants or did presiding Chancery Master Barratt raise any doubts that it could not 'engage' individual servants and agents or that it would or could be overridden by any requirement by the defendants or in law of 'freedom of expression' (rf J24, 35).
9. In any event, the learned judge's order as to costs appears to be ambiguous and in need of clarification (Bundle C, tab 9, last 2 pages). At (2) he orders that I pay "the defendants' costs of the Application" (summarily assessed at £12,500), while at (3) he orders that I pay the defendants "the remaining costs of the claim other than those of the hearings of 14th and 24th January 2002". At the hearing on 24th January I sought his clarification of this apparent contradiction, but he declined. From my side, I would argue from (2) that "the defendants' costs of the Application" (filed by the defendants' second solicitors in October 2001) covers a large proportion of their costs including, for example, those of Mr Holmes' massive affidavit in support of their application, while the defendants would doubtless argue from (3) that the learned judge's summary assessment of £12,500 covers only a small proportion of their costs of the claim, which they presently estimate at £41,622.50 (Bundle C, tab 8).
10. I appreciate that in deciding whether to grant an applicant leave to appeal, the Court has a duty to consider whether the importance of the claim justifies the expense of a hearing, and that, although of great personal importance to me and perhaps to my already ruined literary career, the issue of a derogatory letter in the THES and of possible future such letters, whether breaches of contract or no, might be held to be of little absolute significance. However, even if this be thought so, the recent disproportionate costs incurred by the defendants and now standing against me or claimed from me have turned an arguably trivial matter into a financially serious one, into a matter in which an injustice based on an insupportable construction of the 1992 Consent Order should not, with respect, be allowed to go uncorrected.
11. As things stand, a condensed chronology of the whole affair goes as follows (a detailed chronology is at Bundle C tab 4.3):
1984-85. The claimant, a lone author, sends a provisionally-completed book to the defendants, a wealthy university, for consideration. After nine months of consideration, the university (by its editor) agrees the book's publication, subject to detailed revisions. The author spends nine more months revising the book as specified by the editor.
1986-92. The university refuses publication of the book, admitted to be revised as required and "undoubtedly improved". The author sues. Rather than spend £5,000 publishing the book, the university then spends 6 years and £500,000 unsuccessfully defending the author's claim, incurring castigation by the judges of both the Chancery and Appeal Courts over its misconduct of the original negotiation and of the case (see Bundle B, tabs 2 and 4). In passing the university and some of its members publicly denigrate the book and author, and during the damages assessment they recruit people from all the major UK publishers to testify against it and him.
July 1992. In the settlement of the case, the Court oversees an agreement in the form of a Consent Order by which the university agrees that its members will never again publicly denigrate the book or the author, and wherein it impliedly agrees to notify its members from time to time of this undertaking which, it states, "is binding upon them".
2001-02. The senior member of the university responsible for its 1986 breach of the publishing contract denigrates the book and the author in a leading journal. The author sues, seeking an injunction restraining further such breaches of the 1992 agreement. The university invokes a technical 'collegiate' defence that (the 40 most) senior members of the university are not members of the university. The court finds the parties' 1992 agreement void, strips the author and book of the agreement's purported protection altogether, and orders the author to pay the university at least £13,000 costs (total unclear). The university claims costs from the author of £42,000.
12. I believe that the facts stated in this Appellant's Notice Skeleton are true.
The claimant/appellant, Andrew Malcolm, acting in person, 7th February 2002