'They said Mozart was mad.
They said Puccini was mad.
They said Louie was mad.'
Who's Louie?
'My uncle. He was mad!'
Jimmy Durante
LITIGATION against wealthy corporations is a well-documented symptom of lunacy. For an unpublished author unsupported by legal aid to sue Oxford University Press (annual turnover: £133 million; profits: £16 million) was inviting ruin. In the Court of Appeal last Tuesday Andrew Malcolm had his reward: judgment, costs and substantial damages (to be assessed). It is the first time in living memory that Grub Street has won such a victory over its oppressors.
Malcolm, 42, is an independent scholar, unattached to any university, of the kind whose ills Dr Johnson listed as toil, envy, want, the garret and the jail, and whose lot is not much better today. He read philosophy at Cambridge, used to be an adult education lecturer, and now scratches a modest livelihood as a jobbing builder in the Brighton area.
In 1984 he submitted a 200,000-word Platonic dialogue to OUP. They sent it to Alan Ryan, the New College philosopher, who thought it rather good but too long. Malcolm agreed to revise it if he were given an assurance that OUP was serious. A telephone conversation between Henry Hardy, a senior editor, and the author proceeded on the basis that while Hardy could not offer an unconditional commitment, the book would be published after revision.
OUP staff completed an internal publishing proposal form contemplating 2,000 copies of a 400-page book at £15 with a 12 per cent UK royalty. Hardy wrote to Malcolm: "I'm pleased that we are going to do your book, and hope that it's a terrific success." Two months later, Richard Charkin, Hardy's superior as head of OUP's academic publishing division, revoked Hardy's decision and wrote and told Malcolm. Charkin, who now runs Octopus, was brought in to pep up OUP. Hardy is a traditionalist who made his reputation editing Isaiah Berlin's essays. One suspects that Malcolm was the casualty of a conflict of business cultures that provoked an intra-office battle.
As Lord Justice Mustill put it: "A furious row then broke out within the press leading to abortive disciplinary proceedings initiated by Mr Charkin against Mr Hardy... In his letter of rebuke Mr Charkin complained that Mr Hardy had given 'a written indication to an author that OUP would publish his book' without having gone through the proper procedures."
At this point most struggling authors would have accepted defeat. Not Malcolm, a member of that great army of the bloody-minded upon whose intransigence throughout the centuries English common law has been built. He went to court as a litigant-in-person. Was the publisher's verbal assurance specific enough to constitute a binding contract?
In the High Court last March, a deputy judge, Gavin Lightman QC, found that there was no legally enforceable contract. "I reach this decision with great regret," he added, "I think that Mr Malcolm has been harshly and unfairly treated. I think hehad a strong moral though not a legal commitment."
Malcolm went to appeal. Had he lost, his costs would have been over £70,000. Last week, two out of the three appeal judges found that, although the governing body of Delegates has to give formal approval to publishing decisions, there was an enforceable contract.
The judgment sent a frisson of anxiety through the expense-account restaurants of central London. "I think it's a most remarkable victory for authors," says Giles Gordon, the literary agent. "It means that editors' verbal assurances may be legally binding. These are often given over lunch. I can't count the number of times an author has come away with a promise to publish and six months later the publisher has changed his mind."
OUP, which has the privilege of charitable status but whose value-system is increasingly that of a rib-busting commercial enterprise, comes badly out of the affair. In the past it had a reputation for treating authors decently.
The deputy judge criticised the OUP's solicitors for failing to take seriously their obligations to disclose relevant documents to Malcolm. The appeal judges criticised OUP itself for trying to wriggle out of its obligations by pleading at a late stage that Hardy had acted without authority. They also criticised as 'disturbing' OUP's attempt to exclude evidence about publishing practice which, once it had been included, they made no attempt to controvert - and by implication must have known all along to be true.
"Candour would, I believe, have required that this should have been made clear to the judge and ourselves," said Lord Justice Mustill, "rather than a determined refusal to let the true position come to light."
Perhaps Oxford University should bring its heraldic crest into line with its present ethos. Instead of 'Dominus illuminatio mea' it should read, 'Never give a sucker an even break'.
Click for the preceding Observer article, 11/3/90 Platonic labours lost, and no love or the next item in the Malcolm v. Oxford saga.