*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: Henry, hello.
Hardy: Hello.
Malcolm: I got your letter this morning.
Hardy: Good.
Malcolm: Is it convenient to talk now?
Hardy: Yes.
Malcolm: Right. The saga rumbles on.
Hardy: Yes.
Malcolm: The upshot of this seems to be that... You have included the report from the unidentified referee.
Hardy: Yes.
Malcolm: But you have not actually put in writing anything about your idea of what the revision should consist of.
Hardy: Well I deliberately didn't do that for two reasons. The first was that I wanted to get that letter which I hope improves the prospects of the book past Richard Charkin, which I did.
Malcolm: Yes.
Hardy: And I didn't want to burden the letter down with stuff about the revision.
Malcolm: Yes.
Hardy: So that is why I said I would say it in a separate letter.
Malcolm: Yes.
Hardy: And the other reason was that I wanted to be quite clear that you wanted to revise the book, that you wanted to have a shot at revising the book in line with our wishes before I wasted time telling you what we wanted if you were not interested in what we wanted, if you see what I mean.
Malcolm: Yes, well, of course I am interested to hear what you want... I mean are you willing to commit that to paper?
Hardy: No, no, not at all, I mean over the phone is fine. I simply want, you know, if you had decided, erm... First of all it wasn't quite clear, absolutely clear when we last spoke that you were going to revise it at all, although it seemed likely.
Malcolm: Mm.
Hardy: And secondly it wasn't clear to me whether you had decided to revise it just as you wanted, or whether you were going to go some way at least to meeting what we...
Malcolm: Well, quite. I mean, I still do not quite know where I stand over all this.
Hardy: I hope the letter helps a bit; it was intended to.
Malcolm: Yes, but, I mean I have to guess at all these things, but we still... How do you read the situation vis-a-vis Richard Charkin?
Hardy: Well I read the situation like this: I mean he persisted explicitly to the end in maintaining that he was right, but he was actually overruled in the appeal and I think he genuinely doesn't wish to the book to suffer because, as he sees it, I mishandled it.
Malcolm: Yes.
Hardy: So I think that is genuine.
Malcolm: Mm.
Hardy: I also think that now that we have got this letter on the file, he could not possibly refuse to accept the book for publication if Alan Ryan, and probably one other reader when the time comes, whom I can't predict who it would be, but obviously for my part I would try and get somebody sympathetic, thought that the difficulties had been sufficiently overcome.
Malcolm: Yes.
Hardy: So, you know, I think I read the situation quite optimistically. I also think the fact that Alan Ryan knows that you have been told this in a letter, and I have sent a copy to him too, means that Richard Charkin could not get away with suddenly saying if you sent in a revised typescript later in the year: "Oh I don't want to do this however good it is." I mean I just don't think he's in a position where he can say that.
Malcolm: Yes, well that is what I'm thinking. I mean in his letter to me he mentions a couple of his doubts are to do marketing and sales problems, quote, "commercial and sales problems", unquote and those sort of doubts will presumably persist.
Hardy: Yes, and they remain.
Malcolm: Exactly.
Hardy: They remain, but I think that had he felt that they were overriding, whatever the merits of the book, he would and should have said so.
Malcolm: Yes.
Hardy: I mean if he had felt that however good the book we could not sell it, then he would not have encouraged me to... It was his idea that I write this letter to you, not mine.
Malcolm: It was, ah.
Hardy: I thought we had had it.
Malcolm: Mm, yes.
Hardy: But he actually made... You know, he was good enough in the circumstances to actually make a point of saying: "No, I think we shouldn't let it rest in your reply of 22nd July, we should go back to you and say, you know, you have got an even chance as long as you do it well."
Malcolm: Oh, well that sounds good.
Hardy: So I think I would feel quite encouraged, but of course it still depends on what you do.
Malcolm: Yes.
Hardy: It always did depend on that, so to that extent it is not different.
Malcolm: Yup. Of course.
Hardy: It is just that our commitment is, is, is, it is one rung lower, that is all.
Malcolm: Yes. Because what I'm thinking is... I mean, as I say, I want to do certain things for my benefit, and if I can get... I would like something from you with an outline of what you would like to see, and if I get that and then spent three months doing it and broadly speaking satisfy those conditions and then Charkin turns round and says: "Well I think we have got marketing problems with this", er, I really would get a bit annoyed, you know, obviously.
Hardy: I quite understand that and I really do not think that is going to happen.
Malcolm: Mm.
Hardy: I don't know what else I can do to reassure you on that. I can certainly talk to the head, the man who is now head of General Books, and check with him that he would not allow that to happen, and I'm sure he would not, given what has been said.
Malcolm: Yes.
Hardy: I really don't think it is likely, but I can understand your being uneasy.
Malcolm: Well, it is a matter of ignorance really.
Hardy: Yes.
Malcolm: I am taking your word for the whole situation, and I do not know...
Hardy: I would not worry about it. I think he does believe that marketing is difficult, and I think he is right in the sense that it is the kind of book that does not sell itself.
Malcolm: Yes, quite.
Hardy: It depends upon the marketing and therefore some speculative money is going to have to be spent, and that is true, certainly, however good the book.
Malcolm: Yes.
Hardy: But he also concedes that, you know, there is a chance, however low or high you set it, that if it was well marketed it might just catch on.
Malcolm: Mm.
Hardy: You know, it is a risk. I mean, he is prepared to some degree to allow his editors there head.
Malcolm: Yes.
Hardy: What he is not, evidently, prepared to do is to allow them to jump the procedures.
Malcolm: Yes.
Hardy: Which is slightly different.
Malcolm: That is fair enough, yup.
Hardy: He wants to keep the two distinct.
Malcolm: Yes. Do you want me to... I thought this report was very good.
Hardy: You did?
Malcolm: By the guy, the unidentified referee.
Hardy: Good. I thought you would not like it much because of the negative parts.
Malcolm: Well no, he seems to have put his finger on precisely the right points, rather the things that worry me. Did he read all of it?
Hardy: Not quite all. I think he read well over half of it. He certainly read the beginning and the end.
Malcolm: I see.
Hardy: We made the point to him that he would have to read the end.
Malcolm: Can I just go through it with you? Are you interested to hear my reactions?
Hardy: Yes, certainly.
Malcolm: Because I would like to know whether you agree on these various points he makes.
Hardy: Yup.
Malcolm: I will just read it out, it is not too long: "I'm not particularly in sympathy with Malcolm's general philosophical position, but I think Making Names is really quite an attractive book. It is very easy to read. The book is not particularly strong or original philosophically speaking."
Hardy: Well you would dissent from that straight off wouldn't you? By
Malcolm: Well, I do say in my synopsis that in a sense there is nothing new in philosophy, but I think he is being a bit harsh there, I think there are one or two new things.
Hardy: Yup.
Malcolm: I don't know if you agree with that, but I think there are one or two.
Hardy: I don't feel utterly qualified to say on that. I mean, there were certainly things in it that were new to me, but that of course isn't to say they are new. By
Malcolm: Yes. In fact the new parts, I think, are in middle... if he read and the beginning and the end, the new parts would be in the middle, in a sense.
Hardy: Maybe he missed them. He read it jolly quickly. I asked him to do because I wanted a quick report.
Malcolm: Well he seems to have got right to some good points very quickly anyway. Quote, "There are some tensions in Malcolm's position. (In particular, at certain points Cause uses arguments, or forms of argument, that could be turned against him at other points, where they do not feature.)" Absolutely right. I am aware of that... "Malcolm is very clear, and he knows what he's talking about." (laughs) I have fooled someone anyway!
Hardy: Yes.
Malcolm: "if it were suitably re-written, I think Making Names might prove extremely effective as an introduction.. da-de-da." Well of course I think it is a bit more than that.
Hardy: Right, well, even if it is only that, it will be worth doing, yes.
Malcolm: Yes. "Perhaps it should be tested on a philosophical virgin." Hmm! "There are stylistic problems however, and it is rather old-fashioned in its terms of reference. If the informality is going to draw people (especially younger ones) into the story and thereby into the thought, it needs to be brought up to date. As it is, it is a period piece, set in 1970." That is exactly right, I mean he is quite right there.
Hardy: Would you be planning to bring it up to date?
Malcolm: Oh yes, yes. I mean he quotes a sentence that is really horrible.
Hardy: Yes.
Malcolm: If I had seen it, it would have gone.
Hardy: Yes.
Malcolm: "It is partly a book about himself." That is quite good. "I had completely forgotten that 'bird' could mean 'girl'." (laughs)
Hardy: Although that is an exaggeration, it is slightly dated, yes.
Malcolm: Hm. And then the quotes this awful sentence, that is quite right. "Also it's male-to-maleness is really very pervasive; this seems problematic to me, given the book's potential audience." Well this has been a big problem for me too.
Hardy: Really?
Malcolm: All along, in a sense, yes. I mean, the book is about so many things, but one thing it is about is sexuality... in a very thin way...
Hardy: Mm.
Malcolm: And it is a big problem, and since I started it has become more of a problem because, obviously, 15 years ago feminism and all that went with it was not so high in the general consciousness.
Hardy: Yes.
Malcolm: And I did actually even toy with the idea of trying to make it a dialogue between a man and a woman, but...
Hardy: Yes, but, there is such a lot else that would fall if you did that.
Malcolm: Exactly, and firstly I just don't feel, being a man, competent to write for a woman...
Hardy: No, I would not do that. I mean, perhaps just try and weed out the more awkward passages or something.
Malcolm: Well, in the last year or so, since I haven't been writing it - I have not touched it for over two or three years now - and various things have happened that I was going to suggest doing in a rewriting exercise. Firstly there is this feminist angle that I had been sort of struggling with... I mean obviously Cause is a sexist, and proud of it almost, and Effect is a liberal, a sympathiser, and I could make a little more of that than I have done
Hardy: Yes.
Malcolm: And two things on the moral side of the whole story that have happened: first the idea of a nuclear winter now seems to be scientifically respectable, I mean the idea that we will actually do long-term damage to the planet, that was something comparatively new, that certainly was not around when I started it...
Hardy: Yes.
Malcolm: And that obviously just falls straight into it perfectly. But also all this Greenham movement, the women's rejection of the boys and their toys and the old morality and all that.
Hardy: Mm.
Malcolm: Which is easy to pooh-pooh as nonsense, but I have thought of a good way I can use all that - I don't want to make much of it. And also it gets over one of the great problems of the play at the end, the climax, as he says somewhere further on. I thought what I could do is to twist it all around. At the moment Orestes is the kind of philosopher-hero who breaks the pattern, but I could twist it all round so that Electra is the one who does that.
Hardy: Yes, that would be a nice link, yes.
Malcolm: It would be a very nice link. And she... Well, I won't go any further, but I have been thinking about that, the building of these sort of ideas into the relationship between the two men.
Hardy: Yes.
Malcolm: And I think that really would... that incidentally would make the play a lot stronger in a certain way as well.
Hardy: Good.
Malcolm: Erm... da-de-da... "I don't see the point of the names 'Cause' and 'Effect'," he says - I am now back on the report. Well, if he does not see the point, he does not see the point.
Hardy: It does not seem to me to matter much either way, but maybe you feel they are important?
Malcolm: I think so, yes.
Hardy: I mean, 'Cause'... Do you mean them to have a kind of metaphorical force? That one is the forceful one and the other is the placid one?
Malcolm: Not simply that, no. I mean one thing that happens in the dialogue is that of course they follow each other, 'Cause' and 'Effect' follow each other relentlessly down the page, right through the dialogue until the play.
Hardy: Yes.
Malcolm: When the fictional characters... The whole point, or one of the points, is that everything is fictional; the characters are fictional, and his room at the end is peopled with these explicitly fictional characters, and the names muddle up and the pattern is broken again.
Hardy: Mm, mm.
Malcolm: Something like that. Erm, "When they get on first-name terms they call each other by name too much." I agree.
Hardy: I think that is true, yes.
Malcolm: Yup. "Finally - I don't think much of the last chapter. It delivers very little." Well, I hope I will try and make it clear that it delivers everything. "The semi-archaic language of the play is unnecessary." Well I disagree with that.
Hardy: It did not bother me. It seemed to me, given what you were doing what it, that...
Malcolm: I mean, it is not all terribly good archaic language, but I thought some of it is quite good. The whole point was to establish the...
Hardy: New ideas in an ancient context.
Malcolm: Yes, exactly, or vice versa.
Hardy: I agree with you there.
Malcolm: Erm... "The dramatic climax, if there must be one (in order for someone to say something like da-de-da) should happen within the lives of the characters and not in the play." Well that we disagree with. "Philosophical content, procedure, etc. fine for an introduction. The dialogue form also works well, on the whole, but needs some rethinking its details." I mean I think there is not much I don't agree with, apart from obviously the general disagreements where he has not seen something I have seen. Or not.
Hardy: Yup. Good. Well I am glad it has been of some use. I am not, incidentally, going to do what I said I would do at one point when you thought you were going to give up, which is to send you some carefully prepared extracts from all the reports. I mean, all you need now for the next stage is these suggestions, a different thing.
Malcolm: Er, um, yes. Oh and the other thing I need of course is the manuscript back, because I shall be tinkering around with it.
Hardy: Yes, mine is actually ready at the photocopiers. I must go and collect that... I will post it to you either this afternoon or on Monday.
Malcolm: Well, if you can put your...
Hardy: I will post it to you with my letter giving the revisions.
Malcolm: Exactly, yes, if you would.
Hardy: Okay, right.
Malcolm: And, erm, then, off I go, I suppose.
Hardy: Okay. Good luck.
Malcolm: (wheezes)
Hardy: Well, I mean, when I send you the notes about the revisions, if there is any problem, then get back to me.
Malcolm: Yes, if there is anything that I just obviously cannot agree with, I will get back to you straight away, otherwise I will just try and get down to it.
Hardy: Yup. Good.
Malcolm: And as I say, I think these ideas that have been germinating away in my mind over the last year or so are really going to make it strong. There are some witnesses at the moment, I know, theoretical weaknesses, but I can plug one or two of those, I think.
Hardy: I am sure it would be good for you if you got it finished and out and did something different.
Malcolm: Ah, God! Yes! Don't mention that! Right, er, um, okay, so the next stage is the letter and the manuscript back, and then...
Hardy: Well, you know, I will try and write a letter on Monday but it may take a couple of days with other commitments.
Malcolm: Yes.
Hardy: Sometime next week you should get it, anyway.
Malcolm: Okay, and from then on if I do have any queries I can still get through to you on this number. You are being shifted sideways, or wherever you are going?
Hardy: Yes, I am still on the same telephone, I am still in the same office, yes.
Malcolm: Right, okay.
Hardy: Okay?
Malcolm: Thanks very much for all your trouble over this.
Hardy: Not at all, let's hope it all works out.
Malcolm: Yes.
Hardy: Bye-bye.
Malcolm: 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.
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