In The Whitehaven County Court, 11th June 1997, case no. WH 650087
before Deputy District Judge James Duncan
Judgment
1. The Plaintiff claims breach of contract by the first Defendant which was, at material times, a subsidiary of the second Defendant.
2. The grounds of the claim are set out at length in the amended Particulars of Claim by which the Plaintiff seeks:-
(a) £1000 in respect of an advance which, he avers, the first Defendant had agreed to pay, and
(b) Damages, limited to £2000, for loss of opportunity to establish or enhance the Plaintiff's reputation as a poet.
3. By their Defence both Defendants aver that no contractual relationship had been established between the Plaintiff and the first Defendant; alternatively that any such contract was void for uncertainty.
4. In support of his claim the Plaintiff filed a number of Witness Statements, and gave evidence himself. He also called the makers of three of the Statements: Mr. Sinclair-Stevenson, Mr. Scammell and Mr. Baron.
5. The Defendants did not appear at the hearing and were not represented, but written submissions were filed by them.
6. This dispute was, of course, dealt with by way of an arbitration hearing, and I did not take evidence on oath, nor did I consider myself bound by the strict rules of evidence. However, I did consider that many of the Statements and documents filed by the Plaintiff were not relevant to the dispute.
7. I found that correspondence between Mr. Sinclair-Stevenson (at the time employed by the first Defendant) and the Plaintiff between May 1994 and January 1995 was crucial to the issues between the parties.
8. The correspondence culminated in a letter from Mr. Sinclair-Stevenson to the Plaintiff, which contained the following passage:-
"We will draw up a contract on the basis of all our poetry contracts which is £1000, half payable on signature, half on publication..."
9. On the face of it, this letter appears to support the contention by the Defendants that at the very most there was simply an agreement between the parties to enter into contractual relations, which is not, of course, enforceable at law.
10. The issue between the parties is, therefore, whether the correspondence to which I have referred, particularly in view of the last letter, gives rise to a legally enforceable contract.
11. In finding that there was such an agreement, which gave rise to a claim by the Plaintiff, following the repudiation by the letter from the second Defendant of 10th April 1995, I was considerably helped by the evidence of Mr. Sinclair-Stevenson (who left the Defendants' employment in about February 1995) and who said that he was under no doubt whatsoever that a legally binding agreement had been reached by himself, on behalf of the Defendants, and the Plaintiff.
12. I was also helped by a statement by Clare Naylor, the secretary to Mr. Sinclair-Stevenson at all material times, which included the words:
"I knew that since Mr. Sinclair-Stevenson wrote to an author accepting his work for publication, publication would ensue."
13. I was also shewn a Proposal Evaluation for the book, drawn up by the second Defendant in late January 1995, giving details of projected costs, sales, and profits. Mr. Sinclair-Stevenson confirmed that as a matter of practice such an Evaluation was only prepared when a book had been accepted for publication.
14. For all these reasons I am satisfied that, on the balance of probabilities there was a legally binding agreement between the Plaintiff and the first Defendant, and that the Plaintiff is entitled to be paid £1000 in respect of the advance which he lost by reason of the subsequent repudiation of the contract.
15. The second leg of the Plaintiff's claim, for damages for lost opportunity to establish or enhance his reputation as a poet, presents me with considerably more difficulty.
16. I heard evidence from Mr. Sinclair-Stevenson, Mr. Scammell and Mr. Baron as to the effect which publication would have been likely to have on the Plaintiff's reputation. Furthermore, Mr. Baron gave an indication of earnings which might be expected to be generated for a poet whose works had been published by a London publisher such as the first Defendant.
17. Mr. Scammell and Mr. Sinclair-Stevenson, while both confirming that publication would undoubtedly enhance a poet's reputation, both conceded that establishing a reputation was a slow process, in which publication was only the beginning.
18. Mr. Baron's evidence on this point was, by comparison, much more enthusiastic and favourable to the Plaintiff. I treated such evidence with some caution, however, because at the outset of the hearing Mr. Baron applied to be a lay representative for the Plaintiff and did advise him from time to time throughout the proceedings. He also told me that he had given assistance to the Plaintiff in the formulation of his claim and in drafting the Pleadings. As a retired Solicitor Mr. Baron should know that to appear as advocate/adviser and witness in the same matter is at the very least inadvisable. The danger is that his enthusiasm for the Plaintiff's case might well - even inadvertently - have got the better of him, and coloured his evidence. Hence my caution.
19. While I accept that on the balance of probabilities the Plaintiff did lose an opportunity to establish or enhance his reputation as a poet, to put a monetary value on it is to a certain extent to enter into the world of speculation. Having given the matter some considerable thought I am prepared to award what the Plaintiff might regard as a token sum only, of £250 in respect of this part of his claim.
20. I make a total award to the Plaintiff of £1250.00 together with the Court fee on issue £70.00 and £38.00 in respect of Mr. Sinclair-Stevenson's travelling expenses and £15 for the travelling expenses of the Plaintiff and Mr. Scammell. All these sums are to be paid within 28 days of the date of this judgment.
Click to return to the top of this file. Return to AKME's Law Library index. Return to The Remedy + options. Return to Making Names. Return to The History of AKME
e-mail: akme@btinternet.com