IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Case No: HC01C03415
This claim arises from a previous action in the Chancery Division (reference 1986 M-7710) over the breach of a contract by Oxford University Press (OUP) to publish a philosophy text written by me and entitled Making Names. I won that action in December 1990 in the Court of Appeal, which ordered an assessment of damages. The assessment proceedings concluded on 1st July 1992 with an agreement in the form of a Consent or 'Tomlin' Order under the terms of which the defendants undertook that they, their servants and agents or any of them would not ever publish or solicit the publication of articles or letters derogatory of myself or of Making Names.
The issue of 13th April 2001 of The Times Higher Education Supplementcarried as its lead letter a letter by Professor Alan Ryan of Oxford University which is derogatory of me and of Making Names. In 1985-86 Alan Ryan had been the OUP Delegate responsible for the defendants' handling of Making Names (in two reports, 11/2/85 and 18/7/85 , their entering into the original contract with me for its publication and latterly, their evidence against it in the damages assessment proceedings. Professor Ryan's letter of 13th April 2001 thus constitutes a clear breach of the defendants' undertaking of 1st July 1992.
I am therefore now seeking an injunction restraining the defendants, their servants and agents, and in particular Alan Ryan, from further breaches of their agreement of 1st July 1992. I wish my claim to issue in the Chancery Division of the High Court because this was the Division in which the original action took place and was concluded.
1. The defendants are responsible for and wholly own a department which carries on business as a publisher of books under the imprint "Oxford Univesity Press" (OUP). The defendants exercise control over OUP through a committee nominated from the University Congregation and known as "The Delegates".
2. From December 1986 the claimant fought an action against the defendants over their failure to honour a publishing agreement for a philosophical text entitled Making Names which the claimant had submitted to them in August 1984 and which, subject to certain agreed revisions, was commissioned by them on 20th May 1985. On 18th December 1990 the claimant won the action in the Court of Appeal, which ordered an enquiry into damages. The damages proceedings ended with the parties signing a Consent or 'Tomlin' Order endorsed in court by Chancery Master Barratt on 1st July 1992.
3. Clauses 7 and 8 of the parties' agreement of 1st July 1992 are as follows:
4. In 1984/5 Alan Ryan was a Fellow of New College, Oxford, a lecturer and reader in politics, the Assessor of the university, himself the author of several philosophical books, and an OUP Delegate, in which capacity he wrote two reports dated 11th February 1985 and 18th July 1985 recommending to the commissioning editor Henry Hardy that the defendants should publish Making Names. In February 1986, revised as agreed (uncontested), the book was resubmitted and adjudged by the editors "undoubtedly improved". Mr. Ryan, however, changed his mind, and in May 1986 recommended the book's rejection, which rejection gave rise to the lawsuit."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.
8. The undertakings contained in paragraphs 6 and 7 hereof are of unlimited duration."
5. In September 1986 Mr. Ryan declined an invitation to make a statement on the affair, and in 1987 left Oxford for Princeton University, USA, from where, on 1st June 1991, he filed an affidavit on behalf of the defendants during the action's damages proceedings (his first formal statement in the case), in which he rubbished Making Names, concluding "I believe it would have sunk without trace." When the action's settlement was agreed, Mr. Ryan was still at Princeton (and Messrs. Charkin and Hardy had resigned from OUP), and he was therefore named (along with them) in the last sentence of its Clause 7 as being the subject of a similarly worded request.
6. In addition and prior to the agreement, the defendants by letters dated respectively 29th June and 1st July 1992 undertook to notify the employees of OUP, and Alan Ryan, Richard Charkin and Henry Hardy of the full text of its Clause 7, which undertakings (it has subsequently transpired) they failed to honour, although they did make the request of Alan Ryan specified in the last sentence of Clause 7. On 29th June 1992 the claimant further wrote: "I would like to put it on record now that I would take your phrase 'their servants and agents' to include Mr. Alan Ryan."
7. In 1996 Mr. Ryan returned to Oxford as Warden of New College, and on 26th September he was re-registered in the University Congregation. In 1997 he was appointed a Professor of Politics and Chairman of the Conference of Oxford Colleges, and in 2000 Director of the university's newly-founded Rothermere American Institute.
8. On 13th April 2001, The Times Higher Education Supplement published as its lead letter a letter from Professor Ryan in which he states, inter alia: "The book (Making Names) wore badly on re-reading; what had seemed fresh, lively and amusing seemed coarse and jeering the third time around."
9. These comments from a senior member of the defendants' Congregation who was the OUP Delegate centrally involved in the defendants' mishandling of the claimant's book and in the consequent lawsuit, appearing in the country's foremost higher education journal, constitute a serious public derogation of the claimant's work Making Names and a clear breach of Clause 7 of the claimant's settlement agreement with the defendants of 1st July 1992, whereby the claimant has suffered damage to his literary reputation.
1. an injunction restraining the defendants, their servants and agents or any of them, and in particular Alan Ryan, from further breaches of the agreement of 1st July 1992;
2. costs on the indemnity or alternatively, standard basis.
I believe that the facts stated in these particulars are true.
Andrew Malcolm, the claimant, 7th August 2001.