BACK TO WAR
MALCOLM vs. OXFORD 2001/2: EXPLANATION AND INDEX
For a fair, more-or-less accurate summary of the case, click for Whistleblowers report in the Times Higher (Education Supplement), 22nd February 2002
|
New posting, January 2007
In response to requests from a couple of Oxonian scholars who have been burrowing ever deeper into the grim annals of Malcolm vs. Oxford I, here the party-party correspondence with solicitors Clifford Chance that led to the extraordinary settlement agreement of 1st July 1992 featured below. Click for the first item + preamble in the linked series or for the correspondence index.
|
ON 1ST JULY 1992 Andrew Malcolm and Oxford University reached a settlement in Malcolm's successful breach-of-contract action over OUP's non-publication of his philosophy text Making Names. The case had taken six years, cost Oxford half-a-million pounds (the book would have cost £5,000 to print), and become the most important in publishing law since the 1930s. The agreement was sealed by Chancery Master Barratt in the form of a Consent or 'Tomlin' Order. Clauses 1-5 of this order concerned Malcolm's damages and costs; Clause 6 imposed mutual undertakings of confidentiality; and, since there had already been a history of public denigration by the University of the book and of Malcolm, Clause 7 was the following reciprocal undertaking by the University, "of unlimited duration":
"The defendants (the Chancellor Masters and Scholars of the University of Oxford) 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 (Andrew Malcolm) 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. "
By the time of this agreement's signing, the three individuals named in Clause 7's last sentence had all left Oxford. Henry Hardy was the OUP editor who in May 1985 had commissioned Making Names (e.g. 21st May and 14th June). Richard Charkin was OUP's Managing Director who had then overruled Hardy and tried (unsuccessfully) to sack him. Alan Ryan was the OUP Delegate/referee who in two reports in 1985 (11th February and 18th July), had recommended the book's publication but then changed his mind after Malcolm had spent seven months revising the book to Oxford's specifications. (For the full documentation, go to The 1985-92 Case Papers Index.)
This condition renders Making Names unique in literary and legal history: it is the first book ever to bind a university and its servants and agents to its non-denigration.
In addition, Oxford's solicitors Clifford Chance wrote in late June 1992 that because the three named individuals "were no longer officers or employees of the defendants and no longer within their control" they could be subject only to the less binding 'request' undertaken by Clause 7's last sentence. (This undertaking was fulfilled, but in rather peculiar fashion; see the weirdly botched heading on the letters of 6th July 1992 to Alan Ryan and Henry Hardy).
Two days before this agreement's signing, Clifford Chance had requested the insertion of its Clause 7's second sentence and sent Malcolm a copy of "an instruction to be issued to the defendants' servants and agents". This memorandum reads:
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 (Andrew Malcolm) or about the merits or quality of the Plaintiff's work Making Names."
Also, on the very morning of the hearing before Master Barratt, Clifford Chance faxed Malcolm a letter which included the following paragraphs:
"We shall notify Henry Hardy, Alan Ryan and Richard Charkin on behalf of the Press of the terms of Clause 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... Our clients now confirm their agreement that all outstanding issues have been covered."
It turns out that Oxford never circulated any such memorandum or instruction to anyone, and never notified Henry Hardy, Alan Ryan or Richard Charkin of the terms of Clause 7.
Dr Ryan left Oxford for Princeton USA in 1987, returning in 1996 as a University Professor and Lecturer in Politics, Warden of New College, and holder of at least twelve University posts, including: Chairman of the University's Equal Opportunities Committee; Deputy Chairman of the Undergraduate Admissions Committee; Director of the Rothermere American Institute; et cetera, et cetera.
In 1992 Malcolm published Making Names under the imprint AKME, and six years later he wrote The Remedy, a true account of the lawsuit.
NINE YEARS AFTER the 1992 agreement and one year after the book's publication, there appeared in the 30th March 2001 issue of The Times Higher Education Supplement a surprise review of The Remedy written by, of all the people in the world, Henry Hardy, the very editor who had been at the heart of the 1985/6 lawsuit.
Hardy's review was, despite everything, enthusiastic about both of Malcolm's books, but Hardy did not identify himself or any of the other individuals involved in Oxford's original fiasco. Click now for Hardy's review (with links to the fallout articles in Private Eye)
The most significant dose of fallout came two weeks later in the THES of 13th April 2001, which under the headline "Scholars win in war of words" carried as its lead letter a contribution by Alan Ryan, the OUP Delegate responsible for Oxford's 1986 breach of contract. One paragraph read:
"Third, the book wore badly on re-reading; what had seemed fresh, lively and amusing seemed
coarse and jeering the third time around. Perhaps the reading climate had changed, perhaps it was always a book that should be read once only. But I never changed my initial view; that OUP should have published a thousand copies and seen if they sold - the press was not poor and a few quid on an outsider was a worthwhile bet."
Ryan's letter (click for full text) was thus derogatory of Making Names and a clear breach of Clause 7 of the 1992 agreement. In May 2001 Malcolm therefore returned to law, seeking an injunction restraining the Chancellor Masters and Scholars of the University of Oxford, their servants and agents or any of them, and in particular Alan Ryan, from further such breaches.
Malcolm served a writ (claim form) to this effect on 8th August 2001, and Oxford at once began pleading a technical 'collegiate' defence that, despite his dozen university posts, because Alan Ryan was the Warden of New College, he was not included or 'engaged' by the phrase "The Chancellor Masters and Scholars of the University of Oxford, they, their servants and agents, or any of them". The university Registrar D. R. Holmes submitted a 150-page affidavit on behalf of Mr Ryan in which he omitted to mention most of the latter's posts. Enter a battalion of lawyers, including the Honourable Michael Beloff QC, President of Trinity College, Oxford, and the man lately embroiled in the 'bourses for courses'. Beloff's fee for the 1-day hearing was £13,000. Malcolm represented himself.
Because Oxford was relying on this technical legal distinction between the university and its colleges, a peculiar historic circumstance that attaches similarly to Cambridge University's relationship with its colleges, Oxbridge-educated judiciary were excluded from adjudicating the claim (or strictly, the striking-out of the claim), leaving just two judges eligible from the Chancery Division rosta of seventeen. By weird coincidence, the one appointed was the Honourable and learned Mr Justice Lightman, the very man who twelve years earlier had found against Malcolm on an another absurd technicality (or rather, error) and whose judgment had then been overturned by the Court of Appeal.
Naturally, Lightman summarily struck out the claim on the grounds of protecting 'freedom of expression', asserting that Ryan is "an independent contractor" with respect to the university (although one without a contract) and is therefore not one of its servants or agents. The case he and the university invoked to support this strange conclusion concerned a driver who owned and maintained his own cement truck and was contracted by Ready Mixed Concrete (South East) Limited to fulfill orders for them, with his truck painted in RMC livery.
Amongst other things, this judgement (January 2002) means that all Oxford heads of house (and therefore the Vice-Chancellor and the Pro Vice-Chancellors) are not servants or agents of the university either. Lightman ordered Malcolm to pay £12,500 of the university's claimed £41,600 costs, and refused leave to appeal.
Malcolm applied to the Court of Appeal (for leave to appeal), and on 1st March 2002 appeared before Lord Justice Aldous (a Trinity, Cambridge man - the conflict stipulation ignored), who again refused leave. It is thus clear that no English court will allow the Oxford's 1992 agreement to stand, however perverse, illogical and unreasonable the 'construction' it has to invoke to circumvent it.
During the ensuing negotiation over the £12,500 costs, Malcolm offered to pay the money up front and in full provided it be used by the University to endow a lectureship in publishing law (Click for letter). This offer was refused, with the university instead demanding 36 monthly instalments of £350, over half of which have now been paid. The university law faculty refused to dsplay an A4 flyer about the case on the grounds "there is no room for it".
In May 2002 Malcolm opened the shop AKME EXPRESSION at 12 Broad Street, Oxford and launched The Oxford University Freedom of Expression (OUFOE) Appeal. Click for PHOTOSTORY: The Gallery of Shame, Frideswide's Revolt, Blood Below Stairs etc. and for newspaper reports: Andrew's Little Shop of Horrors, Oxford Times in-depth feature 21/6/02, Times Higher Ed. Sup. 26/4/02,
Oxford Times 26/4,
The Guardian 30/4,
Oxford Star 2/5,
Oxford Student 2/5,
Cherwell 3/5,
Publishing News 10/5,
Private Eye 17/5,
The Guardian 25/6,
South China Morning Post 11/5,
Change (US higher ed.).
Malcolm in the Middle. Major article in The Philosophers' Magazine, Autumn 2002.
Half-way through Malcolm's tenure of AKME EXPRESSION, two striking things happened in Oxford. On 30th May a rave review of Making Names appeared in The Oxford Student newspaper: "Making Names' 'Electra' remains one of the most powerful statements of the human condition written in the past century." And on 31st May Alan Ryan announced with an extraordinary rant in The Times Higher Education Supplement that he was unexpectedly leaving Oxford at the end of that (Trinity) term and going to the Stanford Center for Advanced Studies in the Behavioural Sciences in the USA. Click also for Cherwell 7/6 and other fallout gossip.
Malcolm's spell in Oxford also led to an invitation to give a talk and book signing session in Oxford's Borders bookshop on 4th October, an episode with blew up into yet another sinister Oxford farce. Click for BORDERS SUMMON THOUGHT POLICE and POLICE HOLD BACK.
The university's own 'skeleton argument' in the 2001/2 proceedings reads (paragraph 23):
The court's object is to ascertain the parties' mutual intentions as to the legal obligations each assumed; or, perhaps more accurately, what each would have led the other reasonably to assume were the acts that he was promising to do or to refrain from doing by the words in which the promises were expressed. The test is an objective one - the intention which reasonable people would have had if placed in the situation of the parties, and the meaning which the document would convey to a reasonable person with all the reasonably available background knowledge.
Lawyers and students of Malcolm v. Oxford are invited to follow this extraordinary new case through the files in the two indexes below to decide whether the court has fulfilled, or tried to fulfill, the object stated above. The first index traces the pleadings and judgments chronologically (and interlinked) in the 2001/2 proceedings. The second lists some of the items (not interlinked) relating to Alan Ryan's role the earlier breach of contract and action of 1986-1991. For further detail of that history, go to The Case Papers Index.
Stand by, intrepids, for (- M. Beloff, 14/1/02) to enshroud you.
INDEX 2: EARLIER RYAN EVIDENCE
CLICK FOR:
the top of this file or
the first item in this series: Henry Hardy's THES review of The Remedy, 30th March 2001.
MALCOLM vs. OXFORD I 1984-92 CASE PAPERS INDEX
Malcolm's 1985 Statement of Claim, the Case History, the Affidavits: Ivon Asquith (1); Asquith (2); Henry Hardy; William Shaw (solicitor) (1); Sir Roger Elliott (1); Margaret Goodall; the Witness Statements: Elliott; Hardy; Richard Charkin; Nicola Bion; Goodall, the courtroom testimony of the Oxford Six, 14/3/1990: Elliott; Goodall; Bion; Asquith; Charkin; Hardy, the testimony of Andrew Malcolm 13/3/1990, the CHANCERY COURT JUDGMENT, the Cambridge package and Adrasteia package, the publishing contract affidavits: Giles Gordon (1); Mark Le Fanu, the APPEAL COURT JUDGMENT or the the judgments' extracted highlights, the damages affidavits: Alan Ryan; Asquith (3); Jeremy Mynott; Giles Gordon (2); Fred Nolan; Roy Edgley, to McGregor on Royalties (transcript), the DAMAGES FINDINGS, and the Settlement agreement.
AKME EXPRESSION, MAY-JUNE 2002
THE LEGAL BACKGROUND and Malcolm's Lectureship offer
THE BROAD STREET SHOP featuring the Gallery of Shame, Akme University, St. Frideswide's grotto, Akme Ball etc.
Reports: LITTLE SHOP OF HORRORS Oxford Times 21/6
THES 26/4,
Oxford Times 26/4,
Guardian 30/4,
Oxford Star 2/5,
Oxford Student 2/5,
Cherwell 3/5,
Publishing News 10/5,
Private Eye 17/5,
Guardian 25/6,
South China Morning Post 11/5,
Change (US H.E. journal),
Philosophers' Magazine.
Alan Ryan quits, ranting: THES 31/5, Cherwell 7/6, other quotes
Rave review of Making Names in Oxford Student 30/5: "One of the most powerful statements of the human condition written in the past century."
|
THE OXFORD COLLEGE ACCOUNTS: AKME INDEX AND EXPLANATION
THE SURPRISING TRUTH ABOUT OUP'S 'CHARITABLE STATUS'
THE HISTORY OF AKME AND OF THIS WEBSITE,
THE AKME OXFORD CUTTINGS LIBRARY,
THE AKME LITERARY LAW LIBRARY,
THE AKME STUDENT LAW LIBRARY,
ABOUT MAKING NAMES,
ABOUT THE REMEDY,
THE SITE INDEX.
e-mail: akme@btinternet.com