IN THE THE COURT OF APPEAL

Appeal No: A3/2002/0261

MR ANDREW MALCOLM Appellant
-and-
THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD Respondents

Appellant's submission on the proper construction of Clause 7 of the Consent Order of 1st July 1992, as drafted, 1st March 2002

Note. As explained below, the key to Clause 7 is its second sentence (a dispensation from the confidentiality imposed by Clause 6):

"For the purpose of giving effect to this undertaking [not to publish derogatory letters], the defendants may disclose the text of this term to their servants and agents from time to time."

As I asked the judge (Lord Justice Aldous): "Who here is (allowed) to be notified?" He never answered. The judges' construction cannot stand alongside this second sentence, so they simply have to ignore its existence (never mind also the OUP employees' memorandum). At the end of the hearing, this paper was returned to me crumpled up. - A. M.

Clause 7 reads:

"7. 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 [by then all departed from Oxford; Ryan rturned in 1996] 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."

The learned judge [Justice Lightman] has construed the first sentence in such a way that the word "agents" can mean, and only mean "persons authorised by the University (Council) to do so (i.e. to write letters derogatory of Making Names)."

Inserting the learned judge's above meaning of the word "agents" into the second sentence of Clause 7 produces:

"For the purpose of giving effect to this undertaking (not to write derogatory letters), the defendants may disclose from time to time the text of this term to their servants and to the persons authorised by the University (Council) to write derogatory letters."