Author Andrew Malcolm has won his Court of Appeal battle against Oxford University Press for failing to carry out an agreement to publish his book.
The three judge court was split two to one but finally ruled that OUP would have to compensate Mr Malcolm for withdrawing its offer to publish his philosophical work Making Names in July 1985. In doing so the court overturned Deputy High Court Judge Mr Gavin Lightman's decision of March this year that there was no binding contract between Mr Malcolm and the publisher. With Lord Justice Mustill dissenting, they ruled that OUP had given a contractual commitment to publish Mr Malcolm's book.
The Court heard that during the spring of 1985, written and verbal exchanges on the subject of publication took place between Mr Malcolm and officials of the Press. These culminated in a telephone conversation between Mr Malcolm and a senior editor in OUP's general books department, which was immediately followed by a letter from the editor. The letter concluded: "I'm pleased that we are going to do your book, and hope that it's a terrific success."
But two months later OUP's then managing director Richard Charkin wrote informing Mr Malcolm that his book would not be published, and would probably not be so even if it was significantly revised. Mr Malcolm revised the book and resubmitted it, but it was rejected. The court heard that Mr Charkin had said that a senior editor, Mr Hardy, should not have given an undertaking to Mr Malcolm to publish the book, thus committing OUP to a £10,000 investment. Lord Justice Mustill said: "Mr Charkin took the decision, not because he thought the book was no good - he had never seen it and the reports were favourable - but because he thought it would not sell. Let there be no mistake about it, the failure of this transaction was about money, not prestige."
The original case and the appeal hinged on whether the conversations and letters between Mr Hardy and Mr Malcolm constituted a contract. Lord Justice Leggatt concluded that when Mr Hardy talked in recorded phone conversations about "some form of contract" he was making a contractual agreement. "In my judgment, when Mr Hardy used the expressions "commitment" and "a fair royalty", he did in fact mean what he said, and I venture to think it would take a lawyer to arrive at any other conclusion." Mr Malcolm was awarded costs.
Mark Le Fanu, general secretary of the Society of Authors, said after the judgment: "We congratulate Mr Malcolm for persevering and winning the action. It's very significant that the Court of Appeal has confirmed that oral promises made by publishers can be binding even before a formal contract has been completed. I think that what will now happen is that publishers will make it clear that deals are subject to contract. But this will be better than ambiguity. At least an author will know where he or she stands."
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