Messrs. Clifford Chance,
Blackfriars House,
19 New Bridge Street,
London EC4V 68Y

Your Reference: KEA/00452/001/MTS

Without Prejudice Save as to Costs

Dear Sirs,

Malcolm v Oxford University

Thank you for your letter of 15th June. I note that despite all your remarks about the urgency of the matter, it took you two weeks to reply to my letter of 1st June.

I find your account of our negotiation and agreement quite absurd, but will not waste time further arguing the points.

With reference to your last paragraph, if the appeal proceeds, - and I agree that this now seems more likely - it will not be because of any "inevitability", but because your clients have declined to have our agreement as drafted incorporated in a Consent Order to be sealed by Master Barratt.

As you have requested it, I will now address the matter of confidentiality, which I note you admit has been invoked by your clients as a new condition of agreement. This new condition raises many problems, which I will number.

1. There are numerous problems of definition. What exactly do your clients want to be kept confidential? The fact of such a settlement? The costs implications of such a settlement? The Defendants' undertaking with respect to the 3 subpoenaed witnesses? The 3 witnesses' identities? Or merely the figure of the total sum to be paid out of Court to me? I imagine that your clients' chief sensitivity is over the revelation of the last of these, but even here problems of definition arise from the fact that this was a payment into Court made over a year ago and not simply a lump sum now being handed over in settlement.

2. What is such confidentiality worth? To put it in reverse, obviously, to an unpublished author still living in hope of publication, non-confidentiality is a most valuable commodity. How valuable might have been a difficult question to answer in purely financial terms, but in paragraph 8 of your 'draft contract' letter of 14th May, your clients do seem to have put a price on it, namely about £XXXXX. I suggest that this provides a good starting-point.

3. There is another problem of definition raised by the phrase 'legal advisors', which would have to be allowed as an exception to any confidentiality agreement. In paragraph 7 (14/5/92) you mention Richard White by name, but, as you know, Mr. White is no longer acting for me. It is true that he is continuing to advise me informally, but so are a number of other lawyers with whom I have discussed various aspects of the situation. Again, the fact that a settlement would involve a payment into court made and discussed over a year ago adds to the confidentiality complications here.

4. A similar exception would also have to be made in respect of taxmen, accountants, bank officials and other professional advisors (to both parties) to whom details of the settlement are divulged. Again, careful thought would have to be given here to the scope of the confidentiality required and to the definition of the phrase 'professional advisors'.

5. All this leads at once to the problem, for both sides, of accounting all the people who have already been told some or all of the details of the settlement proposed by your clients on 30th March this year. In addition to my legal advisors, various of my close friends and family have inevitably learned, some inaccurately I gather, that a settlement is or was in the offing, and I presume that various OUP personnel and their friends may also to different extents be 'in the know'. Obviously therefore, a prerequisite of any confidentiality agreement would be for both sides to draw up, as best they can, lists of whom has already been told what and when. Only upon receipt of an exhaustive such list compiled and verified by your clients, would I be prepared to compile a similar list of my own, which would require the naming of a number of people most reluctant to be involved.

6. Then there is the matter of reciprocity. Obviously, any undertaking of confidentiality made by me would have to be matched by a similar undertaking made by your clients. I would be worried not only by the possibility of 'leaks' about a settlement being used against me, but also by the temptation your clients could naturally come under publicly to denigrate my book as a 'justification' of their handling of it.

We have already seen, in the statement read out on behalf of your clients at the end of the appeal on 19th October 1990, that such worries are not groundless. In that statement your clients sought to justify their actions by casting aspersions on the quality and merits of my work Making Names when in fact no adverse reports on it had been obtained and, as has subsequently been revealed, your clients were not even in possession of a copy! Also, in a letter in The Bookseller of 1st June 1990 Sir Roger Elliott similarly denigrated the book and denounced me as an "obsessive", evidently without any knowledge of me, my book or its history.

Whether or not such quasi-public statements amount in law to defamation, I do not know, but certainly, if I am to give any undertaking of confidentiality, I would want a reciprocal undertaking from your clients that they will refrain from making any further such adverse statements about me or about my work.

7. Although, certainly, if suitable terms were agreed, I could undertake, say, not to issue any press release stating a settlement figure, I should want to be protected against penalty if the newspapers were to find out the facts by other means, of which they must have many, or if through no fault of the parties the information in some other way entered the public domain. What would happen, for example, if a newspaper man were to come to me and ask "Is it true that... ?" or "Will you confirm that... ?" Surely I would have to be free to confirm that there had been an out-of-Court settlement? I could perhaps undertake to answer any more detailed questions with a "No comment" but obviously I could not be answerable for any conclusions to which the newspaper man might then jump. Some clause would have to be drafted which could accommodate all such eventualities.

8. How long would any confidentiality be required to last? I assume that your clients are not seriously expecting everyone to take the 'secret' with them to their graves, as if it concerned some terrible war crime. Perhaps they would allow an 'amnesty' in a year or two, by which time any 'newsworthiness' in the story would presumably have evaporated?

9. These problems are only the ones that have so far occurred to me, and it may well be the case that other difficulties and questions emerge as the above are discussed and reflected upon.

Finally, I must observe that I find your insistence upon this late confidentiality condition especially bizarre in view of the fact that in the very letter in which you first mentioned it, it was simultaneously confounded by your own bungled dispatch, by inference, of my payment-out schedule to several of the City's leading merchant banks.

Yours sincerely, Andrew Malcolm

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