NOTE. The writ was issued and served on Oxford on 23rd December 1986 and was subsequently amended twice, firstly on the (incorrect?) order of Chancery Master Barratt that verbatim quotation of the key contractual exchanges should be omitted and that (later) Richard Charkin should be struck out of the action as second defendant (these paragraphs here appear in maroon) and secondly with the addition, in the light of discovery of documents, of more detailed paragraphs concerning the OUP Delegates' approval of Making Names (these paragraphs here appear in purple). The final paragraph numbering is as shown. - A. M.
TO THE DEFENDANTS the Chancellor Masters and Scholars of the University of Oxford (trading as Oxford University Press) of Walton Street, Oxford OX2 6DP and Richard Charkin of 52 Southmoor Road, Oxford.
THIS WRIT OF SUMMONS has been issued against you by the above-named plaintiff in respect of the claim set out on the back.
Within 14 days after the service of the writ on you, counting the day of service, you must either satisfy the claim or return to the Court Office mentioned below the accompanying acknowledgement of service stating therein whether you intend to contest these proceedings.
If you fail to satisfy the claim, or to return the acknowledgement within the time stated, or if you return the acknowledgement without stating therein an intention to contest the proceedings, the plaintiff may proceed with the action and judgment may be entered against you forthwith without further notice.
Issued from the Chancery Chambers of the High Court this 23rd day of December 1986.
Note: this writ may not be served later than 12 calendar months beginning with that date unless renewed by order of the court.
Directions for acknowledgement of service are given with the accompanying form.
1. The plaintiff graduated from Cambridge University with an honours degree in moral Sciences (pure philosophy) in 1971 and subsequently lectured in philosophy in the Sussex area. While so lecturing, the plaintiff conceived the ideas for a book which he subsequently wrote and called "Making Names" (hereinafter called "the work"). The work is 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 a piece of dramatic imagery.
2. The first defendants carry on business as publishers and printers under the imprint of Oxford University Press.
X. The second defendant is and was at all material times the managing director of the Academic and General Division of the first defendants.
3. Under cover of a letter dated 31st August 1984, the plaintiff submitted to the first defendants some introductory material relating to the work with a view to interesting the first defendants in its publication.
4. By a letter dated 9th October 1984, the first defendants invited the plaintiff to send them the typescript of the work. The sent letter was written on behalf of the first defendants by one Henry Hardy (hereinafter called "Mr Hardy") the senior editor of its General Books Division. Mr Hardy holds the degree of Doctor of Philosophy of Oxford University in the subject of philosophy.
5. In response to the said invitation, the plaintiff sent what is hereinafter called "the first draft" typescript of the work to the first defendants under cover of a letter dated 14th October 1984. The first draft contained on its frontispiece an apology which stated that although the plaintiff regarded the typescript as being complete in terms of both philosophical content and literary format he still anticipated a six-month session of revision and polishing.
6. On 18th February 1985, Mr Hardy wrote to the plaintiff a letter the full text of which was as follows "this is just to let you know that I have now had a response from my adviser. It is not unencouraging. Please bear with me a little longer while I look at the typescript myself. I hope to be able to write to you in substance before long."
7. This adviser was later identified as Alan Ryan who had since 1969 been a Fellow of New College, Oxford and was at all material times but is no longer one of the delegates of Oxford University Press (hereinafter called "the delegates"). The delegates are the body appointed by the defendants and charged with responsibility for the defendants' said business. Mr Ryan is the author of "the philosophy of John Stuart Mill" and the biographer of Bertrand Russell as a political thinker.
8. On 11th February 1985 Mr Ryan had sent to Mr Hardy a report on the work recommending that the defendants should publish it subject to certain revisions.
9. On 18th March 1985, Mr Hardy wrote to the plaintiff a letter which began: "In brief, we think that this isn't by any means impossible, but that it won't do as it stands." Mr Hardy continued the letter by initiating negotiations to determine whether the revisions anticipated by the plaintiff and the revisions required by the first defendants could be made to coincide and he outlined the first defendant's anxieties about the first draft. The final paragraph of the said letter started thus: "How adamant do you feel that the book can't be made substantially shorter? That's the key question."
10. The defendants chief anxiety was the work's length. The work's length was then 435 typescript pages.
11. In a letter dated 24th March 1985, the plaintiff responded by listing at length all the revisions he anticipated making. He indicated his willingness and ability to shorten the work, and concluded by stating his firm resolve not to embark upon any further polishing or re-writing exercise without first securing a firm commitment from a publisher. He asked: "How substantial is 'substantially'? That is the key question." The said letter also included this paragraph: "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 well take up to six months of full-time work, without first securing a firm commitment from a publisher; I feel that there is already enough of value in the text to justify such a commitment."
12. On the 26th April 1985, Mr Hardy telephoned the plaintiff and said, inter alia, that at that stage, the first defendants could not commit themselves in advance to accepting the results of a further attempt to reorganise the work. Mr Hardy proceeded further to satisfy himself that the plaintiff's anticipated revisions would fulfil the defendants' requirements. In particular, they tentatively agreed a cut in the work's length of 20 per cent. The plaintiff reiterated that in the light of his experiences, one of which he recounted to Mr Hardy, he was not prepared to undertake further revision of the work without a firm commitment to publish. It was agreed between them that Mr Hardy, who had by then read half the first draft, should finish reading it to see whether the plaintiff's requirement of a firm commitment to publish could be met.
13. During the telephone conversations mentioned in paragraphs 12 and 14 hereof Mr Hardy indicated to the plaintiff his many ideas for the manner of publishing and marketing the work. Such ideas were acceptable to and accepted by the plaintiff, and concerned the decision whether to publish the work in hardback or paperback or both, possible print runs, costs, retail prices and typography.
X. On the 20th May 1985, Mr Hardy again telephoned the plaintiff and the following conversation took place verbatim:
Hardy: I have now finished reading the book.
Plaintiff: Oh good.
Hardy: 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.
Plaintiff: Oh great!
Hardy: 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...
Plaintiff: Of course not, yes.
Hardy: ...because obviously if what you do seems to us to make it worse then we would write to say so.
Plaintiff: Of course, yes.
Hardy: But we feel confident enough to say go ahead and do that.
Plaintiff: Oh great!
Hardy: I was, I was quite gripped by the end, the last two chapters. I was reading with the kind of attention that one gives to a novel, which is not very usual with a philosophical work.
Plaintiff: Oh great, it's very nice of you to say that.
14. On 20th May 1985 Mr Hardy again telephoned the plaintiff and said that he had finished reading the first draft. He offered the defendants' commitment to publish the work if the plaintiff would agree to revise the work in accordance with certain detailed requirements which are set out in paragraph 15 hereof. The only condition of the defendants' said commitment was that the revised work should not be, in the defendants' opinion, worse than the first draft, in which case they would write to say so.
15. Mr Hardy's aforementioned list of the defendants' terms of revision included: (a) a change of title or alternatively the addition of a subtitle, (b) the breaking up and shortening of the first chapter, (c) improvements here and there in the natural flow of the dialogue, (d) a more realistic chronology of the conversations, (d) a reduction wherever possible of any incidental implausibilities, (f) a greater evenness of style and the omission of certain over-literary devices like the use of brackets and obliques, (g) reducing or disguising the explicit references to quotations or compiling them in an end-page, (h) pending the book's accurate casting-off, a reduction in overall length of the agreed 20 per cent, (i) some typographical method of naming each speaker without losing too much lineage, (j) compliance with certain house conventions concerning colons, quotation marks and ellipses and (k) the correct spelling of the words 'discrete' and 'discreet'.
16. By that conversation and the preceding communications, the plaintiff agreed to revise the work in accordance with the revision requirements which been agreed between him and the first defendants in consideration for the first defendant's agreement to publish the work.
17. The said contract to publish the work has confirmed in and evidenced by letters from the first defendant dated 21st May and 14th June 1985 to the plaintiff. The said letters contain the following sentences: "I'm pleased that we are going to do your book, and hope that it's a terrific success. As said, do get in touch if you have any queries as you work through it." and "Don't worry about the delay in revising the book: it's much more important that you get it right than we should publish it a month or two earlier. It's not as if it's tied into a centenary, after all!"
X. The work was subsequently enthusiastically refereed by a third, independent reader, later identified as Galen Strawson, a lecturer in philosophy at St Hugh's College, Oxford, and the philosophy critic of The Observer, who recommended its publication subject to the agreed revisions. Mr Strawson's report to Mr Hardy commences with the following paragraph: "I am not particularly in sympathy with Malcolm's general philosophical position, but I think Making Names is really quite an attractive book. It is in no way crazy. It is very easy to read. Malcolm has a real gift for informal exposition."
18. The first defendants invited the plaintiff to submit details of his personal history and career for the purposes of the book's dust-jacket and other publicity and marketing material. The plaintiff complied with this invitation.
X. The plaintiff sought and received an assurance from Mr Hardy that he would remain editorially responsible for the work.
19. The plaintiff abandoned and relinquished certain business projects and responsibilities and made a number of arrangements, some financial, preparatory to spending a long period in seclusion. He worked out detailed plans of his revision programme.
20. On 18th June 1985 Mr Hardy entered his figures concerning the matters mentioned in paragraph 13 hereof on a Publishing Proposal Form of the defendants (hereinafter called "the PPF"). The PPF is the defendants' internal authorisation for the publication of its books. Mr Hardy therein entered the plaintiff's royalties as 12 per cent (UK) and 10 per cent (North America and export).
21. On or about 18th July 1985, the second defendant who is, so far as the plaintiff is aware, unqualified in philosophy, without himself having considered the text and for reasons unassociated with the quality or subject-matter of the work, decided that the first defendants would not publish the work and informed the plaintiff of this decision by letter dated 18th July 1985 over the signature of one Richard Charkin, the managing director of the defendants' Academic and General Division, thereby wrongfully repudiating and breaking the contract, whereby the plaintiff has suffered loss and damage. Mr Charkin left the employ of the defendants in June 1988.
22. Also on 18th July 1985 Mr Charkin served upon Mr Hardy a Stage Three Warning, preparatory to dismissal in which he stated that Mr Hardy had committed the defendants to spending £10,000 on the publication of the plaintiff's work without correctly following the defendants' internal procedures.
23. On 19th July 1985 Mr Hardy wrote a formal reply to the above mentioned warning in which he halved Mr Charkin's investment figure and stated that he had offered the plaintiff a contract in accordance with the defendants' frequent practice. Later on the same day Mr Hardy learnt that his reply had not been accepted by Mr Charkin and that he was to appear before a disciplinary panel of senior members of the defendants' organisation at an appeal hearing to be held on 23rd July 1995.
24. On 22nd July 1985 the plaintiff wrote the defendants a letter reminding them of his legal rights and of their firm written commitments to the work's publication, but eschewing further action at that stage and declining further involvement with the defendants.
25. On the morning of 23rd July 1985 at Mr Hardy's appeal hearing the panel decided to withdraw his Stage Three Disciplinary Warning.
26. The plaintiff avers that on the morning of 23rd July 1985, at a meeting of which Professor Roger Elliott was chairman and at which Alan Ryan was present, the delegates formally approved the defendants' publication of the work. The delegates' memorandum prepared for this meeting specified a print run of 2,000, a retail price of £15, a total investment of £5,000 and the likely year of publication as 1986. The plaintiff further avers that later on the same day, Mr Charkin instructed Mr Hardy to write again to the plaintiff inviting him, after all, to revise the work as earlier agreed.
X. In the course of telephone conversations between Mr Hardy and the plaintiff on 18th, 19th, 22nd (2), 23rd and 26th July 1985, Mr Hardy strongly urged the plaintiff to embark upon the revision of the work. In the telephone conversation on 23rd July 1985, the plaintiff sought and received from Mr Hardy an assurance that he would remain editorially responsible for the work.
X. In a telephone conversation on 26th July 1985 the plaintiff sought and received from Mr Hardy an assurance that the defendants would not after the plaintiff had spent six months revising work, raise doubts about the work's "market potential". The plaintiff made it clear that if this happened he would take legal action against the defendants. Mr Hardy stated that he fully understood the the plaintiff's position.
27. On 30th July 1985 Mr Hardy sent the plaintiff a detailed list of the revisions of the work that the defendants required. These requirements precisely confirmed the terms agreed in the telephone conversation of 20th May 1985. In particular they specified a reduction in the work's length of 20 per cent.
28. As a result of the matters pleaded in paragraphs 22-27 above the plaintiff elected to affirm the contract pleaded in paragraph 16 above and not to accept the repudiation thereof pleaded in paragraph 21 above.
X. By his said action the second defendant procured a breach of the contract between the plaintiff and first defendants or alternatively wrongfully interfered with the contractual relations between them whereby the plaintiff has suffered loss and damage.
29. The plaintiff has at all material times been ready willing and able to carry out his obligations to revise the work in accordance with the terms agreed with Mr Hardy. After several more months of intensive writing, he completed a revised draft of the work (hereinafter called "the second draft"). The second draft complied fully with all of the first defendants' terms for the revision of the work. In particular the plaintiff achieved a cut in the work's length of 26 per cent.
30. When the plaintiff came to submit the second draft, he found that Mr Hardy was no longer the Senior Editor of the General Books Division and that the work was now being handled by one Ms Nicola Bion, whose position and responsibilities within the first defendants' organisation were and remain unclear.
31. On 21st February 1986 the plaintiff sent the defendants two copies of the second draft of the work. The defendants neither sought nor obtained any reports on the second draft.
32. By a letter dated 9th May 1986 over the signature of Ms Bion, the first defendants acknowledged that the second draft was "undoubtedly an improvement". The letter nevertheless continued that the first defendants had decided, extremely reluctantly, that they could not make the plaintiff an offer of publication. The defendants thereby again wrongfully repudiated the contract pleaded in paragraph 16 hereof. The chief reason given for this decision was doubt about the work's "market potential".
33. Despite several requests by the plaintiff that the first defendants should reconsider their decision and publish the work, the first defendants have wrongfully and persistently refused and failed to do so, whereby the plaintiff had suffered loss and damage.
34. The plaintiff also invited the first defendants to specify any further revisions they may require, but they refused to state any or to discuss further the possibility of publishing the work. The plaintiff has at all material times been and remains ready willing and able to perform any of his obligations under the contract.
And the plaintiff claims: -
1. Against the first defendants:-
A. An order for specific performance of the contract to publish the work;
B. Alternatively, a mandatory injunction ordering the first defendants to publish the work;
C. Additionally or alternatively, damages in addition to or in lieu of specific performance;
D. Alternatively in any event, damages for breach of contract;
E. Interest on any damages under section 35A of the Supreme Court Act 1981; and
F. Costs on the indemnity or alternatively, standard basis.
2. Against the second defendant:-
A. An injunction restraining him from wrongfully interfering with the contractual relations between the plaintiff and the first defendants;
B. Damages for wrongfully procuring a breach of the contract between the plaintiff and first defendants to publish the work or alternatively for wrongfully interfering with their contractual relations;
C. Interest on such damages under section 35A of the Supreme Court Act 1981; and
D. Costs on the indemnity or alternatively standard basis.
THIS WRIT was issued by Richard A. G. White of 12 Powis Grove, Brighton BN1 3HF (telephone no. 0273-206638: reference: 44) solicitor for the said plaintiff whose address is 7 Southover Street, Brighton BN2 2UA.
Re-served on 26th January 1988 by Richard A. G. White of 12 Powis Grove, Brighton BN1 3HF (telephone no. 0273-206638: reference: 44) solicitor for the said plaintiff whose address is 7 Southover Street, Brighton BN2 2UA.
Re-served on 31st July 1989 by the plaintiff of 7 Southover Street, Brighton BN2 2UA.
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Go/return 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 Statement of Claim, to the Case History, to the Chancery Court Judgment, to the Appeal Court Judgment.