There followed another grilling by the three judges of Mark Warby [Oxford's Counsel] on the meaning of the word 'commitment', which he proceeded to characterise as "the offering of a situation where the parties can investigate matters such as print-run, format etcetera in more depth", and Lord Justice Mustill ended the afternoon by issuing him a polite invitation: "Your clients may want to make some statement about the ethical background to the case, or we might feel minded to express ourselves in public."
On Friday morning, as well as the usual few regular spectators, the courtroom was graced by the arrival of Sir Otiose [Roger Elliott, OUP's c.e.o.], resplendent in a dazzlingly fashionable, bright electric blue jacket, as if just descended from the Starship Enterprise. I guess he thought his personal gravitas would urge this triumvirate of natural colleagues to the right decision. Again he was to be disappointed. They announced that they would be reserving their judgment, and apart from Oxford's invited statement, it seemed that there was little more for anyone to add. Warby, however, presumably under last-ditch orders, began by ploughing yet again into the Abrahams case, this time trying to extract from it some new element of uncertainty as to 'custom and usage', as though my contract with OUP was vitiated by the fact that I was a first-time author and therefore might have been ignorant of what did (and did not) need to be agreed, a new ethically-cleansed policy that seemed to regard uninitiates not as being especially vulnerable, but rather as double-suckers. Warby shook his increasingly rattly skeleton again in case any meat fell from it on which the judges might nibble, but nothing came, and by 11:15, all he had left was Oxford's statement, presumably drafted overnight. The courtroom exchanges deserve reproduction:
Warby (reading): "Oxford University Press has defended itself in this action to defend the status of its imprint which Mr Malcolm has coveted."
LJJ Leggatt & Nourse in chorus: Coveted!?
Warby: Yes, my Lords, coveted.
LJ Mustill: You mean he wanted their colophon on his book?
LJ Leggatt: Are these words out of your mouth, Mr Warby?
Warby: The status of the statement is that is has been prepared by my clients, my Lords. [I would lay money on Captain Azure and his amanuensis Ivon Asquith.]
LJ Leggatt: Of course they are out of your mouth, Mr Warby, but... (the judges laugh.)
Warby: I do not feel I should put any gloss on the statement. (Resumes reading) "Notwithstanding what has been said in evidence, at all relevant times books published by OUP had to obtain the approval of the Delegates. They are particularly concerned to maintain the high academic standards of their scholarly and pedagogic works. All the evidence indicates that Mr Malcolm's work did not reach the appropriate standard. Many manuscripts of greater merit have to be rejected by OUP every year. It was not until after legal proceedings were initiated that the Delegates were aware that Mr Hardy had made a commitment beyond the scope of his authority. He assured us, and we accepted what he said, that to be binding his decision had to be approved by the Delegates. OUP accepts that the negotiations were not handled as they should have been, and apologises for any pain and inconvenience caused. However, some aspects of Mr Malcolm's conduct of the case have only served to harden the Press's attitude."
There were gasps in the courtroom after this statement was read. For a few seconds the three judges stared ahead open-mouthed and silent; for a moment I fancied I saw a vapour emanating from around Lord Justice Leggatt. Quite apart from the deafening diplomatic clanger that Oxford had just dropped and its repeated denigration of my unread book, I sensed that the fragile skeins of argument that Warby had for the past three days been painstakingly trying to weave together had at a stroke been totally unravelled before him, leaving him quite forlorn. He must have felt he had the silliest clients in Christendom. I had learned to mistrust premature feelings of triumph, but this moment sorely tested that resolve. When equilibrium returned, Lord Justice Mustill said, almost by way of exclamation, "But if they were worried about their imprint, they could have run the case on the basis that specific performance was a non-starter. They were not at risk of being forced to publish. Their handling of it was a mess. They should at the outset have offered damages." He then invited me to reply briefly to Warby's final points...
The grotesquery of Oxford's 'apology' did not end with its recitation. Warby had undertaken to circulate photocopies of it both to myself and to the judges, and on the following Tuesday mine arrived. It was markedly different, though hardly improved, from the version he had delivered in court. Scholars and pedagogues everywhere will be interested to evaluate the merits of the statements orated (above) and typed (below) to decide which best maintains the appropriately high academic standards and reputation of Oxford's coveted imprimatur:
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. Many manuscripts of greater merit have to be rejected by OUP every year.It was not until after court proceedings were instigated that the senior Officers of the Press were aware, through the tape recordings, that the editor had made statements which could be interpreted as a commitment to publish. This was completely beyond his authority but we accept, as he firmly believes, that he made clear that anything he offered was subject to Delegates' approval and a final written contract. Having taken legal advice OUP believed that there was no binding contract, and this was borne out by the judgement of the court of first instance. It is hoped that this will be confirmed in this court. OUP accept that Mr Malcolm's book was not handled as it should have been, and apologise for the pain and inconvenience this may have caused. But, because of their obligation to maintain the academic standing of the Press, the Delegates were bound to oppose an action for specific performance. It is also true that some aspects of Mr Malcolm's conduct of the litigation have only served to harden the Press's attitude.
The story goes that Frideswide was born to a pious King of Mercia, who when she came of age built a church and convent for her at the gates of Oxford. The hand of the chaste and beautiful abbess was then long sought by a Prince Aelfgar, who, repeatedly rebuffed, plotted her kidnapping. Frideswide learnt of his plan and fled to the nearby village of Bampton, where she hid in a pigsty for three years. When she returned to Oxford, the ardent Aelfgar besieged and threatened to raze the town unless she was yielded to him, but as he entered its gates, he was blinded by a lightning flash and promptly deserted by his panicking men. The merciful Frideswide then miraculously restored Aelfgar's sight in return for his repentance, but for centuries afterwards no English king dared to enter Oxford. In 735 Frideswide was buried in her convent, which later became the site of Christ Church Cathedral, one of whose present-day windows depicts her life. The 19th of October was the day of her death.