LEGAL EXPLANATION (rf The Remedy, page 50.)
The law allows that all documents (and recordings of conversations) that are generated with a view to taking legal action, are privileged, that is, unlike all other relevant documents pertaining to a matter in issue, they can be withheld from the evidence. Given that Richard Charkin's letter to me of 16th July 1985 constituted, in itself, a breach (the first of two) of Oxford's contract, my subsequent telephone conversations with Henry Hardy (this one and those following) were therefore held to be privileged and did not appear in the Trial or Appeal Court files (hence the a, b, c... numbering). By the time of the Damages Assessment proceedings however, certain passages in these conversations (e.g. Hardy's remarks about how he had planned to publish Making Names) had become relevant to these new issues, so their transcripts were then produced, to the delight of Oxford's City solicitors Clifford Chance, whose staff promptly spent hundreds of lucrative hours fruitlessly dissecting them. Case-students who wish to retrace the steps taken by the Trial and Appeal Courts should therefore now proceed straight to the next item in the original files and perhaps revisit these conversations later, while intrepid, carefree psycho-voyeurs may wish to read on now. - A. M.
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Malcolm: In the sense that you at least have read my thing and have got some time for it.
Hardy: Yup.
Malcolm: And now that your bosses seem to be coming down on you... I just wanted to ask a bit more about your situation and this disciplinary hearing and so on. This is all a foreign language to me, but are you in serious trouble over it all, this this business about your being threatened with dismissal and all?
Hardy: Well, we have an official disciplinary procedure in the way that you do in a large organisation, I think for understandable reasons, so that you have a mechanism for getting rid of people without argument about unfair dismissal and all that stuff, industrial tribunals and all that, you know.
Malcolm: Yes. I don't really know, but anyway, yes, I can imagine.
Hardy: We have to have a system of that kind. In my view, and in the view of everybody I have talked to about this, to use such a procedure in a case like the current one is, is, is quite inappropriate, whether or not you agree about the book. I mean even if... Let us assume that I have made as big a mistake about the book as Charkin would like to think, I mean still, I am a senior member of the Press and, you know, an informal chat was the way to handle it.
Malcolm: Yes.
Hardy: But for some reason which I do not fully understand he has chosen to be formal about it.
Malcolm: Well I mean, is there, without, again as I say, poking my nose in where it is not wanted, is it the case for example that maybe for one reason or another, and I suspect politics may not be far below the surface, that Charkin has been trying to get rid of you for some time and this could be an excuse, or something?
Hardy: Their is an element of that in it, possibly. I mean I have no concrete grounds for that. That has been put to him, certainly, by more than one of my advocates. He, naturally enough, stoutly denies it.
Malcolm: As he would.
Hardy: He simply says that this case, taken on its own, or whoever it is who has done it, merits this kind of response.
Malcolm: Yes.
Hardy: And naturally he would take that kind of line, and given that he does take that kind of line, one cannot, as it were, press any other interpretation.
Malcolm: Mm.
Hardy: But I think, you know, I mean, I don't know why you're asking me this, I mean, I am loth as it were... I don't know whether you are trying to build up ammunition of some kind, but...
Malcolm: No, no, no. Well, what I was going to say was...
Hardy: If your are simply wanting comfort, then I think you could take that degree of comfort, though I think that, and it is unfortunate for you, but there is an element of personality in here which has nothing to do with your book.
Malcolm: Quite so.
Hardy: Yes.
Malcolm: And nothing to do with me.
Hardy: Yes.
Malcolm: But it is to do with me in and the sense that...
Hardy: You get the dirty the end of the stick.
Malcolm: Well, not only that, but I am in a position, it seems - I mean this is the last thing I want to be in a position to do - but, I don't know how serious your trouble is, but presumably if I didn't know you, if I had not had any contact with you and all the rest of it and I came on strong and was angry about what has happened, which I have got every right to be...
Hardy: Yup.
Malcolm: ... I mean, if I tried to cause trouble with the Press over what has happened, it would cause trouble for you...
Hardy: It would.
Malcolm: ...which I have no intention of doing. By the same token, on the other hand, is there anything, since I regard you as an ally...
Hardy: Yup.
Malcolm: ...is there anything I can do to mitigate your problems with this tribunal or anything? Is there anything, any letter I can write?
Hardy: That's very sweet of you will, let me think, well... You see... I mean... the only thing that occurs to me that you could write... I mean, I am thinking aloud here, is a letter to me that would would arrive in time for tomorrow morning, which is when the hearing is, which said, that you, erm, understood and I had made, erm, that I was acting in good faith and that, erm, and that as it turned out unfortunately I, you know, I had, erm, misjudged the outcome of a formal procedure and, erm, that you will, in the circumstances, though you were disappointed, erm, you weren't sort of hopping furious and you had no personal grudge or anything like this, you know, then that would, as it were, damage one part of his case against me, which is that I have caused an author to be needlessly upset. On the other hand, what I have just suggested you say is probably not true really.
Malcolm: No.
Hardy: Also, at in a way, even if you wrote that, even if it were true, it is not so much a question of whether I did or did not upset you, it is a question of principle that I might have done, if you see what I mean.
Malcolm: Yes.
Hardy: It is that I did something which, you know, might have these consequences and I should not have done it.
Malcolm: Mm.
Hardy: I mean I did think of mentioning at the Appeal, without you writing a letter, that, you know, though disappointed, you had been decent and philosophical about it, because that might have helped to clear the air a bit, but beyond that I cannot think of anything, no.
Malcolm: Mm.
Hardy: At the other end, you know, you kindly said you don't plan to jump up and down and get cross and so on. I am just wondering, you know, if that could conceivably work in any way. I mean, I don't think it would, I think the only thing that you... What you could do I suppose, could have done, is to write to Alan Ryan and say: look here is a book which you think is worth publishing and, er, you think it is up to him as a Delegate of the press to insist that they get on and publish it rather than fooling around like this, but I don't think that Alan would want to. You know, although we all like the book, you will understand when I say it is not a book we would choose to stake our reputations on in quite that way.
Malcolm: Yes.
Hardy: And I don't know that Alan would take so strong a line, because if he did, if he was going to do that, he would have to insist on the publication of the book against strong opposition from Richard Charkin, probably against opposition from other Delegates who are more sympathetic to the management line and all the rest of it, and it would be quite a major battle.
Malcolm: Yes.
Hardy: I don't think it is the issue on which...
Malcolm: And if he were willing to wage it, in any case he would probably be more likely to do so without prompting from me; any more prompting from me would just...
Hardy: I think so. I mean, I certainly have not yet let this one sit down at all. I have myself been thinking of suggesting to Alan that he brings some pressure to bear. I think the first thing I wanted to do was to get the disciplinary side out of the way.
Malcolm: Yes.
Hardy: I mean in answer to your question, the disciplinary procedure has a various stages 1, 2, 3, 4 of which the first is a verbal warning, the second is a written warning, the third is a final warning, erm, and the last is dismissal.
Malcolm: And what is this?
Hardy: I am on stage three.
Malcolm: Good God! Really?
Hardy: Which means that the thing stays on the file if I lose the Appeal, and then I have only got to do one more thing that he can nail and I'm out.
Malcolm: Really!?
Hardy: Which is totally ludicrous, as you can imagine. I think, as I say, it is ludicrous that he should be using the disciplinary procedure at all. Incidentally, one thing you should not know if you talk to him is that I have talked to you about this side of it, he would be furious.
Malcolm: Right, yes, well I have no intention of talking to him, so...
Hardy: No. So, I mean to see what happens after the Appeal. If I win the Appeal, which I doubt that I am going to, but if I do win it, or if I win it convincingly, I shall feel in a slightly stronger position then to suggest that since he was wrong about warning me he may be wrong about the book too, and perhaps we should have another look at it.
Malcolm: That is another thing I was going to say: once your Appeal is out of the way - again it is not my business - but it would be interesting for me to hear the outcome - once this decision is made, presumably then what happens cannot affect it, it cannot be re-examined?
Hardy: No, no.
Malcolm: So then I would be free to do a number of things. I could then jump up and down, not with serious hope of getting any satisfaction from OUP, but in the sense... It has been suggested to me that if I jumped up and down about it and another suitable publisher got wind that this book had been accepted and then stamped on internally, the controversy aspect might prick up another publisher's ears. I wonder whether that can be used to my advantage?
Hardy: I think that is a very long shot. I think it is a very long shot and I don't think that, erm, you need to jump up and down if you want to try it on. I mean if you want to try it on another publisher and you want to use its sad history at OUP as part of your case, then I think that case already exists and I can certainly talk to the other publisher and explain exactly what has happened without your going and jumping up and down.
Malcolm: Yes, quite.
Hardy: I am very happy to do that.
Malcolm: Right.
Hardy: I am happy to write to any publisher you like and say: here is a book which I think, subject to revision of course, is an interesting one to publish, worth having a shot at, and I am very sorry that we have not been able to do it here, for reasons which I am happy to explain if you want.
Malcolm: Yes, but, as far as... My feeling about all this is that it takes such a long time to get anywhere with anyone that... It seems such a terrible shame to have got now three people who have read it at OUP, all in one way or another seemingly favourable to a degree, not to use that.
Hardy: It is terribly frustrating, but unfortunately as far as OUP is concerned a miss is as good as a mile. I mean the thing is... I am quite sure you are right and that there is no point in pursuing it with OUP in the present climate, because Richard Charkin, whatever he might have thought of it otherwise, is now obviously dead set against letting it through.
Malcolm: Mm.
Hardy: I mean even more so, actually, if I win the Appeal.
Malcolm: You reckon?
Hardy: He wouldn't then want to give me the satisfaction of the book going through, and he is the person who has to sign the form authorising the production investment.
Malcolm: Is that right?
Hardy: There is no point in... I don't think there is any question of... The only thing that would move him would be an instruction from on high, and that will only come if Alan Ryan were prepared to make a major issue of it, and my guess is that he wouldn't. If you do want to make any fuss, I would beg you to make it to Alan Ryan, not to Richard Charkin, because that would be totally counter-productive. to make it with a Richard. I mean, (a) it would be counter-productive for you, and (b) it would rebound on me.
Malcolm: Certainly, yes.
.....
Malcolm: It does. Anyway, so, right. But the upshot of all this... if I may be so bold as to hear the upshot of your disciplinary hearing?
Hardy: Yes of course I will tell you that.
Malcolm: Yes, I mean at least I would know whether you were still in place.
Hardy: Well I think, yes, I have to be still in place in that it is only a final warning, not a dismissal.
Malcolm: Yes, but how precariously in place.
Hardy: Well, obviously, I would be careful not to give him reason to jump again, and actually I am now, erm, I think one thing I perhaps have not told you yet, which I ought to, is that I have been moved from the job in which I commissioned your book, or tried to commission your book, which was in what is called the General Books Department to what I am doing now, which is commissioning academic sociology and politics books.
Malcolm: Uhuh.
Hardy: This was also a move that was imposed upon me by Richard Charkin.
Malcolm: Oh really !?
Hardy: And it is a move I did not want to make.
Malcolm: Yes, it sounds are like shuffling you off into one of the back rooms.
Hardy: Well, I mean that the world at large would not look at it like that because, you know, being an academic editor at OUP is thought to be a good thing.
Malcolm: Very prestigious.
Hardy: And I mean I can see that in a way, but it is just that I don't particularly like those subject-areas, I don't know much about them, and I don't really want to know much about them.
Malcolm: And it leaves you in no position to make any trouble.
Hardy: What?
Malcolm: It leaves you in no position to make any trouble, like publish any interesting books.
Hardy: Well exactly, I mean yes. It takes me out of General Books where I was doing the sorts of things which perhaps he didn't feel particularly warm about. But anyway, why was I saying all that?
Malcolm: Oh this is all fascinating.
Hardy: Anyway, yes, I know why I was saying it: one of the consequences of being in the new job is the Richard Charkin is no longer my immediate superior.
Malcolm: Oh really?
Hardy: In the previous job, General Books, I was joint head of the Department and department heads report to Richard Charkin. In the new job, it is part of a larger group which is called Humanities and Social Sciences. There is a boss of the group called Ivon Asquith, and he is my a line manager as they call it, which means the person in the hierarchy immediately above me, so there is actually a sort of layer of insulation now between me and Richard Charkin, so that any future misdemeanours, if I were to commit any, would not come under his control in that way. I think, you know, the chances of it being repeated are small. It is not really so much the danger of being dismissed, although that is certainly why am appealing, it's, it's, it's, it's, you know, that one cannot really except having such a block put on one personnel file without trying to answer back.
Malcolm: But as far as my thing goes, there is no... That does not help at all, presumably? Unless you could commission me to write it?
Hardy: Well, er, um, if, no, I mean, if it could be thought of as a more popular book on politics or sociology, then I mean I suppose you could force it into one of those categories, but it does not really belong there. But even then, you see, given the history of the book, nobody is going to take it on at OUP now, unless, as I say, Alan Ryan insists. I mean it is not going to get a fair hearing here now that it has been treated in this way.
Malcolm: You don't think there's any chance of it becoming a cause celebre with some of the pro-Ryan faction?
Hardy: Well, not unless Alan wants to make that kind of an issue of it. I mean, you know, maybe he can be goaded into doing so. I rather doubt it.
Malcolm: Mm.
Hardy: I mean there have been...
Malcolm: Everyone's got their jobs to worry about.
Hardy: Well yes. I mean it's not... he wouldn't lose his job, but...
Malcolm: Reputation, sorry.
Hardy: Well he is not too bothered about his reputation actually, but... I don't know, but I guess he would say that although he likes the book, as I had said, although he liked the book, I mean...
Malcolm: It is not his.
Hardy: Well, it isn't a book the non-publication of which he would regard as a major loss to humanity, if you follow me. You know, I don't mean it to be rude, I mean, it is worth publishing...
Malcolm: Yes.
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