Case No. CH1986 M 7710

Mr ANDREW MALCOLM, the PLAINTIFF, in person.

Mr MARK WARBY (Instructed by Dallas Brett, Pembroke House, Pembroke Street, Oxford OX1 1BL) appeared for the DEFENDANTS.

Before Mr G LIGHTMAN QC (sitting as a Deputy High Court judge of the Chancery Division)

Friday 16th March 1990

JUDGMENT

discussion on costs and

ORDER

MR LIGHTMAN: In this action the plaintiff, Mr Andrew Malcolm, sues the University of Oxford, who carry on the business of publishers and printers under the style of Oxford University Press, for specific performance of a contract which he says was made by him with the university on 20th May 1985 for the publication of a book that he had written called "Making Names". In the alternative he claims damages for breach of this contract.

Mr Malcolm had the benefit of the services of a solicitor when his statement of claim was served and when subsequently, on two occasions, he made amendments to it, but he appeared in person at the trial. He conducted his case with great ability and this includes both his cross-examination of witnesses called by the university and his submissions to the Court on fact and law, and they were of considerable assistance to me. I do not think that he was materially prejudiced by his lack of representation at the trial.

The issues in this case are threefold. The first is one of fact: whether the university, in the course of a telephone conversation on 20th May 1985, made a commitment to Mr Malcolm to publish his book. The second is one of law: whether if such a commitment was made, the commitment constitutes or gives rise to a legally enforceable contract. The third question is whether, if there is a legally enforceable contract, specific performance ought to be granted of that contract.

The university sought at the opening of the trial to raise a further issue, namely whether Mr Hardy, the senior editor of the General Books Division of the university, with whom Mr Malcolm negotiated, had authority to bind the university to any contract. The university wished to raise, in addition to or as an alternative to the defence that no contract was made, the further defence that only the delegates of the university, who are the governing body of the Oxford University Press, could authorise the entry into publishing contracts. Mr Malcolm opposed the amendment on the ground that the need for this amendment, if the defence was to be raised, must have been apparent for three years before trial and yet even at the opening of the trial no draft of any proposed amendment had been produced. If the amendment were to be allowed, Mr Malcolm requested an adjournment to review this new line of defence. I formed the view that the amendment was too late and in any event could only be allowed on terms that Mr Malcolm should be afforded an adjournment at the cost of the university. The university indicated that if the price of the amendment was an adjournment, they would not press for the amendment. In the circumstances, I refused the application for leave to amend.

The facts of this case are to a large degree common ground. Mr Malcolm conceived the idea for a philosophical text cast in dialogue form which aims both to provoke the lay reader's interest in a number of traditional philosophical and moral problems and to propose certain radical new solutions to them which culminate in a piece of dramatic imagery. After some unhappy experiences with other publishers, on 31st August 1984 Mr Malcolm submitted some introductory material relating to the work to the university, with a view to interesting the university in its publication. By letter dated 9th October 1984 Mr Hardy invited Mr Malcolm to send the typescript of the work. Mr Malcolm, in response, sent the typescript of the work to Mr Hardy on 14th October 1984. Mr Hardy sent the typescript to Mr Alan Ryan, a fellow of New College and a delegate of the university, as an adviser to report on the work, and on 11th February 1985 Mr Ryan reported favourably on the work, recommending publication subject to certain revisions.

On 18th March 1985 Mr Hardy wrote to Mr Malcolm to the effect that publication was not impossible but that the text would not do as it stood. The key question was whether the book could be made substantially shorter. Mr Malcolm replied philosophically "How substantial is substantially?" The conclusion to this letter reads as follows:

"In conclusion then, I am adamant about nothing at the moment and I very much hope that we can agree some formula that will result in the book's publication. However, in the light of experience, one firm resolution that I have made is not to embark upon any further major polishing/rewriting exercise, which I reckon could take up to six months of full-time work, without first securing a firm commitment from a publisher".

There then followed the first of two critical telephone conversations. Mr Malcolm tape-recorded both and, though Mr Hardy in his evidence questioned whether the tape recorded the entirety of the conversations, I am quite satisfied by the evidence of Mr Malcolm that the tapes and the agreed transcripts of the tapes are for all practical purposes complete records of the conversations. I say "for all practical purposes" because there are omitted, first of all, at the beginning of each conversation, the introduction, because Mr Malcolm only taped the conversation after he had heard that it was Mr Hardy on the other end of the telephone and, secondly, short five-second breaks occurred where tapes were turned over or changed.

The telephone call of 26th April 1985 was concerned with the question whether Mr Malcolm required a commitment and what work Mr Malcolm should do pending such a commitment being forthcoming. Mr Malcolm made it clear that he required a commitment and Mr Hardy made it clear that he was not at that time in a position to give a commitment. Indeed, he was only half-way through reading the book. On this issue it was left that Mr Malcolm should not engage on the required six-month rewriting exercise pending a commitment, a decision on which should be left over for the moment. Reference was made during this conversation to the role of the delegates in the matter of publishing contracts. All that Mr Hardy said in this regard does not appear to me to be entirely consistent or clear. At one stage Mr Hardy said that delegates "have to approve everything that is published", but shortly thereafter he spoke of the special position occupied by the General Books Division. He said:

"We report our decisions to the Delegates on the whole" - emphasis added.

Mr Hardy also spoke of the need to persuade the delegates to back the book and of Mr Ryan wishing to recommend publication of the book to the delegates wholeheartedly, a thing he could only do after he saw the result of the final rewrite. Preliminary thoughts were also exchanged on whether the work should be published in hardback or paperback, whether there should be a large print run and whether the price should be between £15 and £20, but no decision or agreement was reached in any of these respects.

There followed on 20th May 1985 the critical telephone conversation. Mr Hardy opened the conversation with the statement that he had finished reading the book and he went on thus:

"And like Alan Ryan, who read it before, I feel much more warmly towards it having finished it. And we would like to do it. That is to say, I mean I know you want a commitment sufficient to take you through the last stage of revision and that is what I'm offering. I'm not offering a totally unconditional commitment because obviously if what you do does seem to us to make it worse then we would write to say so... But we feel confident enough to say go ahead and do that."

These words in substance and effect constitute the commitment to publish on which this action is founded. Mr Malcolm's case is that the university thereby agreed to publish if the revised script by Mr Malcolm, in the bona fide opinion of the university, was no worse than the original. It is common ground between the parties that Mr Malcolm subsequently revised the original and that the revised script was, in the opinion of the university, better than the original.

Mr Hardy, in the course of the conversation, went on to point out a number of areas where he thought further work was required. These are set out in paragraph 15 of the re-amended statement of claim. Mr Hardy agreed to cast off the manuscript and prepare costings so that consideration could be given to pricing, which he said would depend on whether the publication should proceed in hardback alone or in hardback and paperback. Mr Hardy ended the discussion as follows:

"Mr Hardy: ...if you want I'll be getting in touch again when I've done the costs and cast-off and so forth and then we can er talk about some sort of contract.
Mr Malcolm: Great! Fantastic news! Really good!
Mr Hardy: It seems to me that because it's such a risky venture I'm not going to be terribly generous financially... I mean what I think we should agree is that you have a fair royalty so that if the book is a success you will do well out of it.
Mr Malcolm: Yes.
Mr Hardy: ...but I don't want to pay you in advace money that's been very riskily invested.
Mr Malcolm: Sure, sure, I wouldn't expect that".

On the following day Mr Hardy wrote to Mr Malcolm asking him to fill in an enclosed author's publicity form, information which Mr Hardy described as "invaluable to us in marketing your book". He went on:

"I am especially interested in what you offer by way of a draft blurb, since I shall base on this what I say about the book to the Delegates...

I'm pleased that we are going to do your book".

Mr Malcolm replied on 30th May, likewise expressing pleasure that the university was going to do his book and saying that he was about to immerse himself in producing the final product. Mr Hardy wrote on 14th June acknowledging this letter and said:

"Don't worry about the delay in revising the book: it's much more important that you get it right than that we should publish it a month or two earlier."

At about this time Mr Angus Phillips of the University Press prepared a publishing proposal form for internal consideration at the university, suggesting a print of 2,000, a price of £15 and an average royalty of 11.5 per cent. On 16th July 1985 a delegate note on the book was prepared and typed, containing a brief account of the book and the author, in readiness for submission to the delegates due to attend the meeting of the delegates of the university on 23rd July 1985. It was prepared in anticipation of publication being approved at an editorial meeting to be held on 17th July. Mr Charkin, the managing director of the Oxford University Press, attended this editorial meeting, immediately took against the book on commercial grounds, and it was rejected for publication. Mr Malcolm was so notified, if not earlier by telephone by Mr Hardy, by letter from Mr Charkin dated 18th July. Mr Malcolm had not yet begun the final revision, but had made a number of arrangements, some financial, in the light of the university's apparent acceptance. The university sought to soften the blow by indicating that revisions might render the work acceptable, but in fact, though subsequently revised, the work was not accepted. Hence these proceedings.

Two subsequent events merit reference. The first is disciplinary proceedings commenced at the instance of Mr Charkin against Mr Hardy. The substance of the complaint is set out in Mr Charkin's letter dated 18th July to Mr Hardy. This letter reads as follows:

"Dear Henry,

Malcolm: Making Names

Further to our discussion of 17 July 1985, I am writing formally to confirm the gravity of the situation whereby you gave a written indication to an author that OUP would publish his book without having gone through our editorial procedures. In failing to observe these procedures, particularly with a book in philosophy and which has been rejected by Penguin, you have shown distinct lack of editorial and commercial judgement. You have committed the Press to an investment of £10,000 for which I am responsible. You have raised the hopes of an author who may well cause us embarrassment and adverse publicity, and who will be very upset by the letter I shall have to write to him. You have overstepped your authority and you have wasted my, your and others' time."

Mr Hardy replied by letter dated 19th July, and I shall only read certain passages from it:

"Dear Richard,

...It is true that I indicated to an author, before a Publishing Proposal form had been signed, that, subject to satisfactory revision, OUP would publish his book. I acknowledge that this was not in accordance with our official procedures. But since exactly this breach of procedure is in practice a frequent occurrence, at least in the General Books Department, for which I was working at the time, you will I think agree that the central issue is my judgement of the book."

Then he goes on:

"The reason I spoke in terms of a contract, rather than simply expressing willingness to consider a revised typescript, was that the author estimated that the revision we sought would take six months' solid work and did not feel able to undertake this work without a (provisional) commitment on our part. This is understandable, especially since he had already radically rewritten the book once on the basis of informal encouragement from an editor at Penguin, only to have it turned down (by a different editor)."

The proceedings were subsequently withdrawn, and Mr Charkin wrote to Mr Hardy again on 24th July. Again I shall only quote a short passage:

"Dear Henry,

After your appeal, we discussed the case. It is quite clear that you exhibited extremely bad judgement on the issue in question.

However, it was also clear that you and Will were acting in good faith and were apparently unaware of the proper procedures. I find the latter hard to accept but must trust your and Will's word on the matter.

If we were to tighten up the procedure such that matters like this could be seen in terms of black and white I feel we would lose more than we would gain. I am therefore withdrawing the final warning, but will keep the correspondence on your personnel file."

The second subsequent event which requires reference is that a delegates' meeting did indeed take place on 23rd July, and at this meeting all the general publications, save for two which were referred to in the minutes of that meeting, whose publication was referred to the delegates were approved for publication. Mr Malcolm is convinced that his work was one of those approved for publication at this meeting. His conviction flows from an affidavit of documents sworn in this action by Mr Asquith, in the course of which he states that copies of the delegates' note relating to Mr Malcolm's book were sent to delegates attending this meeting.

If this had been the case, the inference could be drawn that publication had been approved since, as I have said, all the books of which such notice had been given to the delegates, save for two, were approved. But I am quite satisfied by the evidence of the university's witnesses that the delegate's note was in fact never circulated after the adverse view of the book taken on 17th July at the editorial meeting. The evidence on this issue is all one way, save for the lax and unfortunate affidavit of documents prepared by the university's solicitors for swearing by Mr Asquith.

I now turn to the three issues. The first issue is whether the university, by Mr Hardy, gave to Mr Malcolm a commitment to publish, subject only to his revised script being no worse than the original. This issue turns essentially on the telephone conversation of 20th May and the transcript of it. I should say at once that I am quite satisfied that this commitment was given. The whole point of the 20th May telephone call, the whole point of the delay in proceeding further as arranged in the telephone call of 27th April, was to enable Mr Malcolm to be given the commitment which he required and on which he insisted, namely a commitment to publish. The terms of the transcript are in my view quite clear.

Mr Warby for the university seeks to answer this in three ways. First he relies on evidence given by Mr Hardy to the following effect. The evidence is set out in the draft amendment to Mr Hardy's witness statement:

"I have a clear recollection of an exchange an the telephone with Mr Malcolm in which he asked me whether he could now make arrangements preparatory to undertaking his revisions. I answered that I did not anticipate any problems, but that strictly speaking approval was needed both from an internal editorial meeting and from the Delegates, and that if he wanted to be absolutely in the clear, he would wait until these stages had been gone through. If he chose to make arrangements before that, it would be at his own risk - a risk which I admittedly assessed as small, but nevertheless real. I have no clear recollection of exactly when this exchange took place, but it seems most likely to have been towards the end of the conversation of 20th May 1985, or perhaps in another telephone conversation on or about that date, the precise date and time of which I cannot now recall."

I regret that I cannot accept this evidence. First of all, this statement was a late addition to his witness statement, made only in the course of the trial itself. Secondly, this evidence cannot be reconciled with the transcripts or the correspondence, and I am quite satisfied that no other telephone call took place where any such statement was made. Thirdly, I am satisfied that Mr Malcolm is telling the truth when he denies that any such exchange took place. Fourthly, no such suggestion was made by Mr Hardy on the occasion of the disciplinary proceedings, when, if such a statement had been made, it would have been a complete answer, as I see it, to the complaint against him by Mr Charkin.

Mr Hardy says in his witness statement:

"I was so shocked with the disciplinary action that I forgot to indicate, [in my letter to Mr Charkin relating to the disciplinary proceedings], that I had told Mr Malcolm that the book would not only need to be revised, but would also have to proceed through the internal editorial meeting and the Delegates Meeting."

As Mr Hardy told me, the whole episode, and in particular the disciplinary action, had a traumatic effect upon him, and I regret I can only think that it also had a traumatic effect on his recollection. I certainly cannot accept his evidence on this matter.

Secondly, Mr Warby says that the commitment was merely that Mr Hardy and Mr Ryan would support the book before the delegates. I can find no support for this limited commitment in the evidence or papers. It would have been of limited, if any, value and certainly not of the scope or value that Mr Malcolm was demanding. It may be mentioned that Mr Ryan in fact, far from supporting the book on his second reading, rubbished it. If the commitment was to the effect suggested by the university, it was certainly neither honoured nor recognised as such.

Mr Malcolm in his statement deals with his understanding of the role of the delegates. These statements by him might have been of considerable significance if I had before me an issue as to Mr Hardy's actual or ostensible authority. I think that they and other evidence, for the purpose of the proceedings as they are now constituted, are to be read as consistent with a view, fairly held by him and fairly drawn from what Mr Hardy told him, that the General Books Division could commit the university to a publishing contract, though it would later have to be reported to the delegates. In any event, it seems to me, as I have indicated, that there was made to Mr Malcolm an absolute commitment, not a commitment conditional upon any approval, whether by editors or by the delegates.

The third matter on which Mr Warby relies is that the condition that the second or revised draft should not be worse than the first was very much a subjective condition, depending as it did on the judgment of the university, and he suggests that this really renders the whole transaction something less than a true commitment. But whilst this condition gave the university wide scope for rejection of the revised draft, the power on the part of the university of rejection had to be exercised bona fide, and indeed there is no dispute that this condition has in fact been satisfied. I am therefore quite satisfied that a clear commitment was made by the university.

This brings me on to the second issue, and that is whether the commitment constitutes a contract or gives rise to a contractual obligation. On this issue I must regretfully decide in favour of the university and against Mr Malcolm, and I must do so on two grounds. The first is that, in the case of a contract to publish a book, there are fundamental terms to be agreed beyond the matter of publication alone. These include the matters of royalty, the numbers to be published * [and the form of publication (e.g. whether hardback or paperback). The parties may expressly agree these terms or they may do so impliedly by reason of some trade custom or usage or established course of dealing between the parties]. The parties may [also]agree a formula to resolve these matters, for example that they should be left to the publisher alone to decide in exercise of his judgment or discretion. (See, for example, Abrahams & Anr v. Herbert Reiach Ltd. 1922 1 K.B. 477). But for there to be a valid contract these matters must be agreed or there must be agreed some formula for their resolution. In this case there is no agreement of the terms or a formula and there is no plea, evidence or suggestion of any trade custom or usage or any previous dealing between the parties. The internal documents of the university, setting out their proposals in this regard, since they were both tentative and never communicated to, let alone agreed by, Mr Malcolm, cannot furnish any comfort in this regard. The second reason is that the conversations of 27th April and 20th May both proceeded on the basis that there were matters to be agreed between the parties and incorporated in a contract. Unfortunately, the university rejected the work before these matters could be agreed,but in the light of what passed between the parties I cannot hold that the parties intended to enter into a legally binding contract, or did so, when the arrangement was that these fundamental matters were subsequently to be agreed between them and incorporated in a contract.

* At the point asterisked above it should be noted that there was an interesting discrepancy between the version of the judgment orated in court by Lightman and the typed version corrected and despatched by him some weeks later. This second version carried certain additions which are marked above in purple in square brackets []. Tellingly, these changes Lightman made in his grounds for not inferring an enforceable contract invoke exactly the points on which I was later to win in the Court of Appeal. - A. M.

I reach this decision with great regret. I think that Mr Malcolm has been harshly and unfairly treated. I think he had a strong moral, though not a legal, commitment. After reviewing these matters, it may be that the university will have second thoughts, or at least be minded to make some kind of amends, but I cannot in this court of law grant Mr Malcolm any relief.

The third issue, namely whether, if there was a legally enforceable contract, specific performance should be granted, accordingly does not arise. I should merely say this. It is clear that in a proper case specific performance may be granted of a publishing contract. (See, for example, Barrow v. Chappell & Co. [1976] R.P.C. 355.) Today the two criteria would appear to be, first, whether damages is an adequate remedy and, secondly, whether the grant of this equitable remedy is both just and practicable. If the question had arisen, I would have declined to grant specific performance, for though I do not think that damages would be an adequate remedy and whilst I do think that it would be equitable to grant specific performance, I do not think it would be practicable to grant that remedy in this case.

Mr Malcolm has fairly and honestly told me, and this is apparent in anyevent, that relations have broken down irretrievably between him and the university, that he has no desire to continue relations with the university and that enforcement of a continuing relationship is likely to be impossible. I think co-operation is required for any publication of Mr Malcolm's work. There are so many stages where the publisher and writer must work together if the venture is to be completed, let alone successfully. I cannot think that any order for specific performance in this case would be practicable. I would, however, have been minded to indicate that a substantial award of damages was called for to recompense Mr Malcolm for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work.

In all these circumstances and with great regret I must dismiss this action.

MR WARBY: My Lord, that leaves the question of costs. I want to take a realistic approach to this, bearing in mind the matters that your Lordship has raised in the course of the trial. Your Lordship has indicated quite clearly his view of the moral merits of my clients' position, but it is usual for the Court to disregard that matter in deciding on costs if the successful party has been right on the law and the facts.

My Lord, perhaps I could deal with the two specific matters that your Lordship has raised in the course of the trial - first of all, the application for leave to amend the defence. That failed, and there is really no answer on our part to a submission by Mr Malcolm that he must have the costs of that. I have done a calculation of how long that took up, by our reckoning it is about half a day. That, I think, incorporates the question of leave to amend Mr Hardy's statement, which was dealt with at the same time.

The other matter your Lordship has raised, and quite rightly so, is the question of discovery and Mr Asquith's erroneous affidavit. I think that is really the only point on discovery which has taken up any substantial time, because it involved calling Mr Asquith for cross-examination and also involved some cross-examination by Mr Malcolm of Miss Bion, Sir Roger Elliott and Miss Goodall.

MR LIGHTMAN: Can I just say something on that? The matter, I think, rather goes beyond that. It seems to me that a matter that had figured very largely in Mr Malcolm's mind, and perfectly reasonably, and indeed permeated the whole way this case has been run, has been a concern that there has been a cover-up in regard to whether the delegates did indeed approve publication of this work, and that was a perfectly fair inference to be drawn, having regard to Mr Asquith's affidavit.

MR WARBY: My Lord, yes. Perhaps I will need to take your Lordship through the history of that. I don't want to go on any longer than necessary, but it has been dealt with on various occasions in the interlocutory proceedings and perhaps it is appropriate that I should take your Lordship through the references.

My Lord, the relevant bundles are A, D and E, I think, for most purposes. I think the most convenient place to find this is in bundle E page 14, which is Mr Asquith's first affidavit. The affidavit was served at the same time as the list of documents, because I think Mr Malcolm had served the usual notice on us, and it exhibits the list. That is the list which, as we have discovered, contains the erroneous and misleading suggestion that the delegates' note was a document which had been posted to the parties named there - that is to say, the delegates. So that was where the misleading indication arose.

On 14th September 1988, about six weeks after that list, Mr Malcolm issued his motion to commit the Press for contempt of court, and that appears, my Lord, at page 40 and following in bundle A. It does not raise this point as such, but the relevant paragraph is on page 41, paragraph 3, where Mr Malcolm is seeking an order that Sir Roger Elliott should

"make an affidavit as to the existence... of agendas, records, minutes or other documents relating to all the Delegates' meetings at which the plaintiff's work "Making Names" was considered, in particular the Delegates, meeting on 16th July".

Of course it turned out that there was no meeting on 16th July.

Before that motion came on for hearing before Morritt J., Mr Shaw, my instructing solicitor, swore an affidavit on 20th January 1989, and your Lordship will find that in bundle E at page 27. The relevant page is page 30, and it is paragraph 12, which starts at the bottom of the page. I don't think it is necessary to go to Mr Malcolm's affidavit on this point.

"I am informed by Ivon Asquith and verily believe that the sequence of events in July 1985 was as follows...".

Then he explains that Nicola Bion prepared a memorandum - that is the delegates' note. He says that this document would have been submitted to the delegates at their next meeting on 23rd July 1985, but prior to the delegates' meeting the work was considered at an editorial meeting and was rejected. Then he refers to Mr Charkin's letter and says:

"The plaintiff's work was not therefore submitted to the delegates' meeting on 23 July and no reference is made to this work in the Agenda or minutes."

and the agenda and minutes were exhibited to that affidavit, although of course they were not within the scope of any order that Mr Malcolm had sought or was seeking at that stage, in an attempt to make it clear to Mr Malcolm that the evidence indicated clearly that in fact the book had not been considered at that meeting.

At the hearing of the motion, which took place on 6th March 1989, Morritt J. made an order - it was the only order he made - that Sir Roger Elliott should swear an affidavit. Perhaps I should refer your Lordship to the terms of the order. It is at page 44 of the black bundle. My Lord, at the top of the page is the substance of the order:

"the First Defendants do within 14 days of service upon them of this order by their officer Sir Roger Elliott make an affidavit... stating whether any document with the description contained in the schedule."

"Any document listing titles of General Publications tabled at the meeting... held on 23rd July 1985 or otherwise indicating what General Publication titles were approved at that meeting."

Your Lordship has seen already Sir Roger Elliott's affidavit. What that does is to exhibit, again, the agenda and minutes for the 23rd July meeting, and Sir Roger deposes that, save for those documents, there is not, and to his knowledge

"there has not at any time been, in the defendants' custody, possession or power any other document listing titles of general publications tabled at the meeting of 23rd July or otherwise indicating..."

That is to say, his affidavit follows the terms of Morritt J's order. That is at page 61 of bundle E.

The next event was the service of the reamended statement of claim, and it was there that for the first time Mr Malcolm raised the allegation that in fact the book had been approved at the 23rd July meeting. The reference is page 7 of bundle A, paragraph 26 of the pleading. The reamended defence was served on 13th October 1989 and dealt with that allegation in paragraph 8A which starts at the bottom of page 25 of the black bundle:

"it is admitted that there was prepared (by Ms Nicola Bion) a Memorandum dated 16 July 1985 addressed to the Delegates and containing details... as pleaded in paragraph 26. It is, however, denied that the Delegates approved the publication of the work at a meeting on 23rd July 1985 or at all. The work was never submitted for consideration by the Delegates, having been considered and rejected at an editorial meeting on 17th July".

So that, in substance, is the same position that is explained in Mr Shaw's affidavit.

Thereafter, the only relevant events are these. The witness statements were exchanged on 19th October 1989, and those included the statements of Miss Bion, Sir Roger Elliott and Mr Charkin. Miss Bion said that she had not sent the note, Sir Roger said he had never seen it and Mr Charkin said he didn't know whether it had gone, but he didn't think so. Thereafter Miss Goodall swore a further affidavit, this time exhibiting her investment list - that was on 31st January - and in March her statement, in which she stated that she had no recollection of seeing the delegates' note, was served on Mr Malcolm.

MR LIGHTMAN: Was the list of documents amended, the one exhibited to Mr Asquith's affidavit, to make it clear that you had the original and that the original had not been sent as indicated in the exhibit to Mr Asquith's affidavit?

MR WARBY: My Lord, what was done was that it was amended to show that we had the original.

MR LIGHTMAN: Can I just see the amendment?

MR WARBY: Yes, my Lord. it is bundle A, page 74 and following... I am sorry, I have misled your Lordship. The position is that it wasn't amended in that respect. It now has been amended, but it is a bit late for that of course.

MR LIGHTMAN: But there was no amendment prior to trial?

MR WARBY: My Lord, no. What happened, as your Lordship may recall from the documents Mr Malcolm showed him earlier, is that there was confusion over whether we indeed had the original or whether the document we had was an original or a copy. Mr Malcolm served notice on us to produce the original at the trial. Initially we wrote to him saying that we didn't have the original, couldn't find it, but then later I think what happened was that we appreciated something we hadn't appreciated before, that the document we had was in fact an original, and did produce it for him.

MR LIGHTMAN: But the amendment to the list was never made prior to trial. That is right, isn't it?

MR WARBY: That is right, my Lord.

MR LIGHTMAN: And so the list continued to say exactly what it said when exhibited to Mr Asquith's original affidavit.

MR WARBY: My Lord, yes. My Lord, I have just found the document I was referring to. It was a letter from Dallas Brett on 19th January, and it is at page 132 of bundle D, the orange bundle. Your Lordship has already seen it. It is the second paragraph, with regard to document 19 - that is the delegates' note. This was the first time that we explicitly confirmed that we had the original - "sent a photocopy and invited Mr Malcolm to inspect". That is about two months ago. So clearly at that stage what formally should have been done was for the list to be amended.

MR LIGHTMAN: It is fair to say, is it not, that this is not a case where discovery has been a signal success so far as your side are concerned?

MR WARBY: My Lord, no. I have already acknowledged in answer to your Lordship that there have been unfortunate discrepancies, and clearly Mr Asquith's affidavit was misleading.

MR LIGHTMAN: I have in mind, for example, the notes from which Mr Hardy made that telephone conversation.

MR WARBY: My Lord, that is of course the other point, yes.

MR LIGHTMAN: And indeed in the course of the hearing a number of other documents which came to light have not been disclosed. They have not necessarily had a vital effect on the case, but I can recall a number being mentioned. For example, there was, I think, a document where, when the book was originally sent to the philosophy department, I think some adverse comment on it was suggested to have been made.

MR WARBY: Mr Charkin referred to some note that he...

MR LIGHTMAN: But that again hasn't been disclosed or referred to.

MR WARBY: My Lord, no. I think the position there is that until Mr Charkin gave that evidence, there had been no suspicion of the existence of such a document.

MR LIGHTMAN: I only say this. It is not for me to inquire what happened behind the scenes, but obviously it was the duty of your solicitors to check very carefully with Mr Charkin what, if any, documents may have existed, and one might get the impression in this case that that hasn't been handled with perhaps the care that one would hope for.

MR WARBY: My Lord, all I can say as to that particular document is that, as I understand it, Mr Charkin handed over at a very early stage his entire file on the matter and was asked by my instructing solicitor whether it was complete, and confirmed that it was. I don't know if it is appropriate to go into it further now.

MR LIGHTMAN: I don't think you need go further into that.

MR WARBY: But, my Lord, your Lordship is quite right. There have been discrepancies and omissions with regard to the list of documents, but as to how far the costs of the action and, in particular, of the trial have been increased as a result of that and where the consequences of that fall, my Lord, as I have indicated, going through the chronology, what we certainly omitted to do was to amend the list of documents, but apart from that formal error the substance of the matter was dealt with pretty comprehensively, in our submission, in affidavits and witness statements, as well as on the pleading, which followed Mr Asquith's affidavit. Indeed, I don't think it was until the trial, and certainly we appreciated the significance which Mr Malcolm was attaching to this point. I say that because, if we had, no doubt an amended list of documents would have been served and in some way Mr Asquith would have been caused to alter what he had said in his previous affidavit and explain the error.

Just finishing on that point, my Lord, as far as the time which was taken up by this point is concerned, the calculations that we have done reckon that this took about an hour and a quarter at the trial.

MR LIGHTMAN: What took an hour and a quarter?

MR WARBY: The question of the delegates' note and whether or not it was actually sent. My Lord, there may have been a little more time taken, but not very much I think, on other points as to discovery, such as Mr Hardy's manuscript note. It is in the end a matter on which your Lordship has been quite satisfied by the evidence of the witnesses, which was not perhaps greatly supplemented in oral evidence over what was in the written statements, that the delegates' note was not in fact sent.

So, my Lord, on that point the submission we make is that it is obviously right that Mr Malcolm should not be asked to pay the costs which have been incurred at this trial as a result of those errors. I couldn't possibly submit that he should be. But, my Lord, we invite your Lordship to make an order the effect of which would be that no order for costs is made with regard to that extra time spent.

In summary, we would submit that an order which would do substantial justice as far as the costs of this action are concerned is that the defendants should have the costs of the action to trial and 80 per cent of the trial costs and that Mr Malcolm should have, say, 15 per cent of the costs of trial - that amounts to somewhat more than half a day - and that the costs due to each side should be set off one against the other.

MR LIGHTMAN: Wouldn't it be more helpful and convenient to have a composite order for all, some overall figure in relation to both?

MR WARBY: My Lord, where both sides are represented by solicitors and counsel, it is more convenient to do that, because one can assume that the costs on both sides will be roughly equivalent, but where, as here, one party is in person, it is perhaps more difficult to make a round assessment. I haven't seen my way to a round assessment which would correspond with what I am submitting to your Lordship, but...

MR LIGHTMAN: Do you object to me making a round assessment?

MR WARBY: My Lord, no, in principle not. All I would ask is that your Lordship bears in mind the submissions I have made as to the impact of the errors which have been made on our side on the actual expenditure of time costs during the action and the trial.

MR LIGHTMAN: Your instructions are, notwithstanding the history of this matter or anything I have said, that you are to press for an order for costs?

MR WARBY: My Lord, those are my instructions. As to what happens hereafter, my Lord, I don't know, but I am instructed to press for an order for costs. Obviously, my Lord, it will be a matter for consideration by my clients as to what steps they take after your Lordship has made whatever order he makes.

MR LIGHTMAN: Thank you. Mr Malcolm. You appreciate that I am only concerned with the question of costs at this stage.

MR MALCOLM: Yes, I have understood that, my Lord, but I am afraid that I took my sets of files home yesterday. Perhaps I could borrow Mr Warby's?

My Lord, since we are only, it seems, now dealing with the question of costs and, as you rightly observed, a great deal, if not the whole, of the costs that have accrued in this action have been to do with the defendants' failure to discover the documents, a great deal can be laid at the feet, I submit, of Mr Asquith and his two affidavits and the information he gave Mr Shaw in his affidavits. Some of these points have already been raised, but...

[Malcolm's submissions on costs continue]

MR LIGHTMAN: The defendants have succeeded in this action and so in the ordinary way would be entitled to their costs of the action.

I have been concerned throughout this action by what appears to me to have been a failure by the defendants' solicitors to take sufficiently seriously their obligations in regard to discovery. It seems to me, for example, that the affidavit of Mr Asquith, initially exhibiting the list of documents on behalf of the defendants, was calculated to mislead regarding whether or not the delegates at the delegates' meeting had been furnished with copies of delegates' statements relating to the plaintiff's book.

I have referred in the course of the hearing to my concern that Mr Hardy's note, from which he dictated certain matters to the plaintiff on the occasion of the telephone conversation of 20th May, is not disclosed. There have been other documents referred to in the course of the hearing, where it seemed clear to me that the defendants' solicitors, if properly running the matter, should have made discovery. I am concerned that the failure to make these disclosures may have fuelled the plaintiff's suspicions and concerns and may have extended the length of trial of this action. I must also have in mind that there was an application to amend the defence. Mr Warby tells me that the estimated period on his part of the time expended on that abortive matter was about an hour and a half, and I think that is about right.

In all the circumstances of this case, it seems to me that I ought to order the plaintiff to pay 75 per cent of the defendants' costs. I hope, however, that the defendants will have in mind the merits of the case generally when it comes to any question of enforcement of that order.

ORDER

Case No. CH1986 M 7710

Mr G LIGHTMAN QC (sitting as a Deputy High Court judge of the Chancery Division)

Friday 16th March 1990

UPON THE TRIAL of this action

AND UPON HEARING the Plaintiff in person and Counsel for the Defendants

AND UPON READING the documents recorded on the Court File as having been read

AND IT IS ORDERED

(1) that the action do stand dismissed

(2) that the plaintiff do pay to the defendants 75% of their costs of the Action such costs to be taxed and paid forthwith if not agreed

Order endorsed 22nd March 1990

Go to Malcolm's Statement of Claim, to the Case History, to the Affidavits: Ivon Asquith (1); Asquith (2); Henry Hardy; William Shaw (solicitor) (1); Sir Roger Elliott (1); Margaret Goodall; to the Witness Statements: Elliott; Hardy; Richard Charkin; Nicola Bion; Goodall, to the courtroom testimony of the Oxford Six, 14/3/1990: Elliott; Goodall; Bion; Asquith; Charkin; Hardy, to the testimony of Andrew Malcolm 13/3/1990, to the CHANCERY COURT JUDGMENT, to the Cambridge package and the Adrasteia package, to the publishing contract affidavits: Giles Gordon (1); Mark Le Fanu, to the APPEAL COURT JUDGMENT, to the damages affidavits: Alan Ryan; Asquith (3); Jeremy Mynott; Giles Gordon (2); Fred Nolan; Roy Edgley, to McGregor on Royalties (transcript), to the DAMAGES FINDINGS, and to the Settlement agreement.