TAKE NOTICE that the Court of Appeal will be moved so soon as the Plaintiff in person can be heard on appeal from the order herein of Master Barratt made on 11th July 1991 whereby it was ordered that the Defendants do pay the Plaintiff £17,444.73 damages as assessed (including a deduction of £502.40 notional income tax on the interest element) for their breach of contract to publish the Plaintiff's work Making Names AND FROM the order of Master Barratt made on 19th November 1991 as to costs
FOR AN ORDER THAT the quantum of damages be increased AND for an order that the Defendants do pay to the Plaintiff his costs of the assessment below and of this appeal to be taxed if not agreed
AND FURTHER TAKE NOTICE that the grounds of this appeal are that:
1. In assessing the damages under Head I (as agreed, the 5 years of royalties lost as a result of the Defendants' said breach of contract to publish the Plaintiff's work Making Names) Master Barratt did not evaluate the evidence which was put to him of comparable books' sales, but simply accepted the Defendants' figure (proposed at 6.0 p.m. on the 2nd day of the 2-day assessment hearing) of 15,000 copies. On the evidence, the most reasonable comparison on which Master Barratt should have based his finding is Thomas Nagel's book What Does it All Mean? which was published by the Defendants in 1987. This comparison provides a figure of about 82,000 copies, over 5 times the figure used by Master Barratt.
2. In calculating the quantum Master Barratt has also made certain mathematical errors, particularly in respect of (a) the agreed year-by-year split of the 5 years' sales and (b) the date of the Plaintiff's first royalty payment.
3. Master Barratt has failed to calculate a quantum based on "a fair royalty" as agreed, and has chosen royalty rates (8% hardbacks, 5.5% paperbacks) lower than those supported by the evidence.
4. Even without increasing Master Barratt's multiplier figure of 15,000, correction of the errors mentioi-ied in paragraphs 2 and 3 above more than doubles the quantum as assessed.
5. Master Barratt was wrong to attach no weight to the original 1985 evidence of the Defendants' expert readers' reports of Alan Ryan, Galen Strawson and Henry Hardy. Contrary to the apparent suggestion of Master Barratt's findings, it was Alan Ryan, not the Plaintiff, who stated that the book would make a good introductory text for 'A' Level and Open University students and who compared its sales prospects with Colin Wilson's The Outsider and Douglas Hofstadter's Godel, Escher, Bach.
6. Master Barratt was wrong in law to admit and then rely upon the recent affidavit evidence of Alan Ryan dated 14th June 1991 without ordering his availability for cross-examination. Further. in 1986 Alan Ryan declared himself no longer able to give a dispassionate assessment of the book, which he has not since read.
7. Master Barratt was wrong to attach any weight to the affidavit evidence and testimony of the Defendants' independent witnesses other than that of Dr. Mynott, since apart from Dr. Mynott none of them had ever read any part of the book.
8. Master Barratt has underestimated the damages under Head II (loss of publicity/reputation).
9. Master Barratt was wrong in law to disallow damages under Head IV (pain and suffering).
10. The Plaintiff reserves the right to add to these grounds of appeal when transcripts or other further evidence becomes available.
AND FURTHER TAKE NOTICE that the Plaintiff proposes to apply to set down this appeal in the Chancery Division (Final List).
DATED the 18th day of December 1991
I certify that a true copy of this Notice of Appeal was served on Clifford Chance, Blackfriars House, 19 New Bridge Street, London EC4, solicitors for the Defendants, by Andrew Malcolm of 103 Southover Street, Brighton, the Plaintiff acting in person, on the 18th day of December 1991.
Go to Oxford's Respondents' Notice (re damages).
Go to the Malcolm vs. Oxford I (1984-92) Index or the Malcolm vs. Oxford II (2001-02) Index
Go 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.