*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.
Malcolm: Hello.
Hardy: Hello. Thank you for ringing back, I am sorry I wasn't here when you did.
Malcolm: That's alright.
Hardy: Thank you for your letter.
Malcolm: A bit outrageous I thought, but...
Hardy: Your letter was outrageous?
Malcolm: Yes.
Hardy: In what way? Oh, you mean the claim about your book?
Malcolm: Yes, that and they dig at, what was it, "respectable and safe OUP".
Hardy: Well...
Malcolm: Worth a shot I thought.
Hardy: Mm. Richard Charkin has read your letter. He came into my office and saw it there, and it was a good thing that he did, because...
Malcolm: Mm?
Hardy: Well, perhaps I ought to say first that, although it was done in a face-saving away from Richard Charkin's point of view, I won the Appeal this morning.
Malcolm: Oh well done! Good news for you.
Hardy: Good news for me. I have had the disciplinary warning removed.
Malcolm: Did the letter help in any respect with that?
Hardy: You mean his letter?
Malcolm: Did you read my letter out in front of these people?
Hardy: No, I did not use it actually, but was very glad to have it.
Malcolm: Yup. Uhuh.
Hardy: It has, I think, worked for you subsequently if you agree with me That is to say: Richard has just been in to see me in, for him, a fairly conciliatory mood, and he read your letter and said it was a good letter, and he particularly picked on the point where you say that there is obviously no point in sending your book back to OUP.
Malcolm: Yup.
Hardy: He asked me to ring you to say that if you think that is the case you have misread his letter.
Malcolm: Ah.
Hardy: He says that what he was anxious, very anxious to do in his letter to you was not to give you any false hopes, but he says, although you have not got a contract yet, but, erm, that if you are prepared to do the revisions we asked for and you then send it in and it gets past the process of refereeing which of course we would manage, erm, then he wants you to know that he would give it a perfectly open consideration, and, you know, he does not want, erm, he is very anxious that you shouldn't feel that the chances of the book being accepted have been in any way affected by the quarrel between him and me.
Malcolm: Well he does say in his letter that - I know I have overstated him deliberately, obviously, in my reaction to his letter - but he does say, quote, "I cannot hold out much hope that we would publish it", unquote, then, quote, "I would understand if you felt unable to undertake the revision", and so on.
Hardy: I know he says that. What he has in effect said is that he was saying it that strongly because he did not want to give you false encouragement, but I think, you know, as far as I can judge, he is perfectly sincere in not wishing the book to become a victim of this argument.
Malcolm: Yup.
Hardy: And although of course it is possible that the revisions may not seem adequate to us, erm, he does not want you to be put off making them for that reason, so...
Malcolm: Yup.
Hardy: It is your decision, but I mean I personally very much still think that the best hope for your book until it is definitively rejected is for you to try and get it published by us.
Malcolm: Yes.
Hardy: And obviously, although I am no longer officially in control, your editor would now be somebody called Nicola Bion, who is very nice and sympathetic...
Malcolm: Nicola Beon?
Hardy: Bion.
Malcolm: How do you spell that?
Hardy: B-i-o-n.
Malcolm: Yup?
Hardy: So although... I mean, one thing is clear or... I mean, if I can't to go back on what he has said and give you a contract now, but...
Malcolm: Hm.
Hardy: I think I am in a position to say that, erm, it will be fairly considered if revised, and what I very much hope is that you will have a shot at doing it, because I think that option, although it may go wrong, is still a stronger suit than trying elsewhere.
Malcolm: Oh absolutely. So... You did say before that if you won your Appeal that then you thought Charkin would be even more resolutely set against it; this seems not to have happened?
Hardy: Well I was quite surprised that he seems to have... I think that Richard Charkin is not the person ever to admit any such thing, but I think he probably realises he has ovedone it a bit, and for him is being quite magnanimous about it, and part of his magnanimity is that he has, you know, without prompting from me, said that he does not want the book to be... I mean what really annoyed him about the thing was not so much the book, although he is sceptical about that, but about the fact that the commitment was made in the way that it was.
Malcolm: Yes.
Hardy: So I do think that you have got no worse chance than you had before of the book's being published byus, the only difference is that you are not going to do it with a contract.
Malcolm: Y-yes... Well, wait a minute. If I had had a contract it was not a matter of a chance of having it published by you, it would presumably have been published by you.
Hardy: No, er, even a contract...
Malcolm: I mean, now it is a matter of spending three or four months revising it without...
Hardy: (irritably) Well, no, the contract, as I tried to make plain at the time, the contract does have an acceptance clause which...
Malcolm: Oh yes, a let-out clause.
Hardy: I mean obviously it strengthens your chances and it means that the Press is more committed to doing it than otherwise, but it is not that different, in effect. But I mean, I don't deny, you would be taking a risk and it is a question of if you want to.
Malcolm: Yes.
Hardy: I mean in a way, if you want to explore alternatives you are going to have to do some degree of revision anyway.
Malcolm: Yes. Well, the other thing about this is that if I do it blind, as I do will be doing, the revisions that I will be doing are the things that I will want to be doing rather than... I mean I have not been set any particular requirements in a sense.
Hardy: No.
Malcolm: We have talked about... The only concrete thing that I have got hold of really is that we want to split that first chapter up and try to make the introduction more lively, the first stages of it more lively, which is something I would want to do anyway, but apart from that and the play part, which I want to do on my own account... I have been thinking hard about it and have got some your ideas on that that will make it even better, I hope.
Hardy: Good. Well, the only other thing that comes to my mind immediately is that the costings were based on the assumption that you would reduce the script by a minimum of 75 pages.
Malcolm: Yes.
Hardy: The book was cast off at 475 pages and needs to come down to a maximum of 400. What I can do though, if you like... I want to reply to your letter anyway for the record and in order to put what Richard has just said to me in writing and copy it to him so he has a chance to...
Malcolm: Yes, it would be nice to have something from him that did actually kind of balance the letter he has already sent to me, which does really, as you say... Although it is not absolutely clear that there is no point in sending it back, it makes it as near as dammit no point.
Hardy: Well I could ask him to write to you and I think he probably would. I think it might be just as good if I write to you and, um, say what he has just said to me and copy the letter to him and ask him to let me know if I have got it wrong.
Malcolm: Yes.
Hardy: Erm, but if you particularly wanted it to come direct from him, I can...
Malcolm: Well, no, but something with his authority though, with his blessing.
Hardy: Okay, I'll, I'll, I'll, try and concoct something anyway. I will write you a short letter just saying that part, and then I will write a separate letter, if you like, making clear what sort of revisions we would be asking for.
Malcolm: Yes, that would be a something a bit more concrete for me to go on, because my ideas would not necessarily be... I mean if I had my way I would not necessarily be looking to cut it. I would cut things that I saw as superfluous or unnecessary, but I wouldn't have the big prejudice about length that you have.
Hardy: Well it is not a prejudice about length as such, it is a question of balancing length against price.
Malcolm: Yes.
Hardy: Obviously, one does not want to cramp your style too much, but there comes a point when the price just starts running out of control.
Malcolm: Yes.
Hardy: And we thought that £15 for a hardback was the maximum.
Malcolm: Top whack, yup. Well, so it is looking promising again is it?
Hardy: Well I mean yes, don't let's get carried away. It is an open question rather than a closed question, after what has been happening.
Malcolm: Yes. And he wasn't too wound up by my letter?
Hardy: No, he said it was a good letter.
Malcolm: Oh, it was meant to be a wind-up.
Hardy: He rather respects the fighting spirit, I think, being a fighter himself.
Malcolm: Uhuh?
Hardy: So, I will write to you in those terms, and if you feel happy with it, I hope you will still go ahead.
Malcolm: Okay. Well, as I say, I intend to do certain things on my own behalf anyway. But one thing I have decided against, for all sorts of practical reasons, is the word-processor thing. I think what I would do, even if you insisted on having it presented in a less scrappy form, I would just carry on in my own way rather than paying a secretary to type it out neatly, rather than start putting it all onto a computer myself - that would simply take too long and be too much work. Can I just ask one thing about that side of it?
Hardy: Mm.
Malcolm: Is there any point, in the sense that if I had someone put it all onto computer neatly for me, is there any point in spending that money, or would you then in any case get your person to put it onto computer?
Hardy: No, if your computer disk is not particularly outlandish, then we would probably have it typeset direct from the disk.
Malcolm: Well that is what I am wondering. That is a possibility is it?
Hardy: It is. I mean, I am not going to commit myself on that because it depends on the particular disk that you're talking about.
Malcolm: Yes, in which case, should I not know what the...
Hardy: Well... There is a questionnaire for authors about what they propose to use, and I don't know whether, even at this stage, I don't know whether we could be definite about making use of it... The thing is that, er, some kinds of books, some kinds of typescript can be sent to fairly cheap typesetters where the savings of using a cheap typesetter are greater than the savings on using computer-setting, but, you know, one cannot be sure of what the situation will be like when the typescript is ready for production.
Malcolm: Yes. So...
Hardy: But if you wanted to ask for a commitment to using the technical approach, we could sort of look at that for you, but...
Malcolm: Alternatively, the other way, if I did submit it to you with the right corrections literary-wise all done, would it be a disadvantage if it came back to you in the same sort of state as it is at the moment?
Hardy: No I don't think so, No. You mean from the point of view of...
Malcolm: So someone would have to then typeset it from that?
Hardy: Yes. I mean the typescript is perfectly clean, the only objection one might make is that you might use more spacing and you might have wider margins.
Malcolm: Yes, but no-one is going to be prejudiced in their judgment of it?
Hardy: I would not have thought so, no.
Malcolm: No? Well in which case I shall carry on in that fashion.
Hardy: You know, one possible scenario is that if you resubmit a revised version which goes through and then gets the contract, you might regard having the contract as sufficient encouragement to doing the mechanisation side of it, if you are paying for the mechanisation side of it, if you wanted to do anything further to it.
Malcolm: Yup, yes, well, but the thing is, on the basis of what I am doing now... I mean the computer would cost a thousand quid.
Hardy: Yup.
Malcolm: And then it would just take me months personally, so I would get a girl to do it and that would take cost hundreds of pounds, so that really would be a lot of time and money 'on spec'.
Hardy: It would. On the other hand, a lot of the local changes that are needed are small words and phrases here and there, and although you can do that by painting out and so on, it is going to make the typescript look more messy.
Malcolm: Ah yes, but a friend of mine has recently invested in a very good photocopier that is the easy way around all that.
Hardy: Ah, right.
Malcolm: So that will be the solution there, I think.
Hardy: Okay.
Malcolm: Right.
Hardy: Well, as you will well understand, I am being very careful not to make any promises beyond those I am in a position to make, but, er, I do hope that, erm, you will at least give it a chance of going through the next stage.
Malcolm: Y-y-yes. Well, er, on the that sort of basis, of a fairly well revised version, I could have that in a month or three a I should think.
Hardy: Okay. It will be formally handled by Miss by Nicola Bion, as I have explained.
Malcolm: Does that mean I won't be writing or phoning you any more? That will be a relief for you.
Hardy: You may write to me and phone me as much as you like, but, er, um, I expect I shall be informally involved a good deal because of the circumstances, er, but technically it is not my responsibility any more.
Malcolm: I mean she will be writing to me if...?
Hardy: Well, she would certainly be the one who wrote to you about contracts and things if we ever get to that stage, but obviously it makes sense for me to be the one who writes to you about changes and so on, because I had been through it with you.
Malcolm: Yes.
Hardy: But I think when it comes in again...
Malcolm: I mean she hasn't read it yet for example, she doesn't know anything about it very much?
Hardy: No, she hasn't, and quite probably won't. I mean, you know, there is no need for her to in a way. She might read the revised version, but, er...
Malcolm: Yup.
Hardy: Anyway, I will talk to her about it.
Malcolm: Yes, I mean it would be nice for me to carry on with you if you can bear to carry on with me.
Hardy: Yes, I mean informally I am sure we will carry on. I'm just saying, you know, that the formal position is that she is handling it, so that, er, you know, the business type of letters will come from her.
Malcolm: Right.
Hardy: And, you know, once it gets through, supposing it gets through, to contract and to production, then there is no longer any special reason for you to be very frequently in touch with me, because then it is a matter of mechanics.
Malcolm: Yes.
Hardy: She would handle all the marketing and promotion and all that side of it, you know, but my interest will remain keen until we get the green light, that is really the situation.
Malcolm: Great, well, thanks for that.
Hardy: If that is what is going to happen, which I hope it is.
Malcolm: Mm.
Hardy: Anyway, I will write you this letter.
Malcolm: Right.
Hardy: And you let me know if you think if it is erm, enough to erm, make it worth your having another shot.
Malcolm: Okay, yes. Right, well, good news on your Appeal anyway.
Hardy: Thank you very much.
Malcolm: Um, right, I will be in touch.
Hardy: We will be in touch soon, yes.
Malcolm: Yup. Cheers.
Go to the next item, or the previous item or to the next privileged conversation in the Evidence (red) file.
Go to Malcolm's Statement of Claim, to the Case History, 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 Chancery Court Judgment, the Appeal Court Judgment, the Damages assessment, the Settlement agreement.
Return to the Malcolm vs. Oxford I (1984-92) Index or to the Malcolm vs. Oxford II (2001-02) Index or to the SITE INDEX.