Oxford's Respondents' Notice went through several amendments. In October 1990, a week before the Appeal, the key passages in maroon (citing the Delegates' approval of Making Names as a 'condition precedent' of the contract) were dropped. - A. M.

TAKE NOTICE that the Respondents intend upon the hearing of this appeal to contend that the decision of the learned Deputy Judge should be affirmed on the following additional or alternative grounds not relied upon by him:-

The learned Deputy Judge's finding that the parties never reached complete agreement as to the terms on which the Plaintiff's work was to be published is further supported by the fact that the following words were spoken by the Plaintiff in the course of his conversation with Mr Hardy of the Defendants on 20 May 1985, (although the words underlined were omitted from the transcript of that conversation in trial bundle B, page 44 line 338 and hence were not referred to at the trial):-

"but... so the timing is right though, because, you know, everything finishes in a week or two, and by then presumably we could have perhaps come to some... something, and I can get down to it."

Further and alternatively if, contrary to the learned Deputy Judge's findings, a complete agreement was reached between the Plaintiff and the Defendants then

(1) it was an agreement whereby the Defendants undertook to publish the Plaintiff's work subject to the following conditions precedent:-

(i) that the Delegates of the Oxford University Press ("the Delegates") should formally approve such publication; and/or

(ii) that the Plaintiff should revise the work in the manner specified to him by Mr Hardy on behalf of the Defendants; and

(iii) that the Defendants should be satisfied, in good faith, that the work as so revised was sufficiently improved to warrant publication;

(2) as the learned Deputy Judge found:-

(i) the Delegates never did approve publication of the Plaintiff's work;

(ii) the Defendants' opinion, reached in good faith, was that the work as revised was not sufficiently improved to warrant publication;

(3) further and alternatively, the Plaintiff failed to revise the work in the manner specified by Mr Hardy;

(4) in the premises the said conditions precedent were not fulfilled and no contract came into existence, or alternatively any contract which was concluded ceased to bind the parties.

AND FURTHER TAKE NOTICE that the Respondents will apply to the Court of Appeal for an Order that the Appellant pay to the Respondents the costs occasioned by this notice to be taxed.

DATED the 17th day of May 1990, Re-served 9th October 1990 MARK WARBY

Dallas Brett Solicitors & Attorneys, Pembroke House, Pembroke Street, Oxford OX1 1BL
Ref: KJ EJ 1347A

Click for the Malcolm vs. Oxford I (1984-92) Index or the Malcolm vs. Oxford II (2001-02) Index

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.