Clifford Chance to Andrew Malcolm, 14/5/92

Letter from Clifford Chance to Andrew Malcolm, 14th May 1992

CLIFFORD CHANCE, Blackfriars House, 19 New Bridge Street, London EC4V 6BY
TELEX 887847 LEGIS G FAX 071-489-0046 DX 606 LONDON
Amsterdam Brussels Frankfurt Hong Kong London Madrid Moscow New York Paris Singapore Tokyo United Arab Emirates Warsaw
Associated offices Bahrain Saudi Arabia

ref. KEA/O452/1/MTS

Mr Andrew Malcolm
xx Southover Street
Brighton
Sussex
BN2 2UD

Without prejudice save as to costs

Dear Sir

Malcolm -v- Oxford University Press

We refer to your fax of 7 May 1992, in which you stated that you wished to accept our clients' offer of settlement on conditions set out in your letter, and to your subsequent fax on 13 May 1992.

We have spoken to the Court of Appeal Registry, who state that the most appropriate procedure (avoiding further hearings) would be to lodge a form seeking an order of dismissal by consent (signed DBC form attached) with the Court of Appeal, and include the terms of settlement in a letter (see attached) to be signed by both parties.

A Minute of Order (see attached) would then be lodged in the High Court by our court clerk together with the annexed payment schedule. If the Minute is signed by both parties, no attendance is necessary. Please note that we are not prepared to lodge the Minute of Order until the form of dismissal by consent terminating the appeal and cross-appeal have been entered by the Court of Appeal.

We should be grateful if you would return the enclosed documents duly signed. On receipt of the same, we will lodge the DBC form with the Court of Appeal and our Court clerk will attend on Master Barratt so that the Consent Order can be made and the payment schedule completed.

Our clients are attempting to contact the third parties, and we propose to write to the solicitors for Sir Michael Atiyah, Dr. Black and Miss Smallwood with regard to the assurances you have sought. We cannot, however, undertake that written assurances will be produced within 7 days.

We look forward to hearing from you.

Yours faithfully,

Clifford Chance

Accompanying Letter of Agreement dated 14th May 1992

ref. KEA/O452/1/MTS

Mr Andrew Malcolm
xx Southover Street
Brighton BN2 2UD

Dear Sir

Malcolm -v- Oxford University Press

We write to confirm the terms of an agreement reached between you ("Malcolm") and the Chancellor, Masters and Scholars of the University of Oxford ("OUP").

1. The Appeal and Respondents' Notice shall be dismissed by consent, and to that end Malcolm and the solicitors of OUP shall sign and lodge with the Court of Appeal a form of dismissal by consent.

2. Once the Order of dismissal has been entered in the Court of Appeal, the balance of the funds held in Court in respect of proceedings in the Chancery Division of the High Court numbered 1986 M 7710 ("the action") shall be paid to Malcolm and to that end, Malcolm and the solicitors of OUP shall sign a Minute of Order in the form annexed hereto, which the solicitors of OUP shall lodge with the High Court.

3. Malcolm hereby acknowledges that receipt of the sum referred to in Clause 2 above shall operate as a full and final settlement of any and all claims, demands, liabilities and causes of action against OUP whatsoever, hereby undertakes not to make any demand on OUP whatsoever and hereby releases OUP, present and former employees of the Oxford University Press, Sir Michael Atiyah, Dr. Lauchlan Glenn Black and Miss Anne Smallwood from any and all claims, demands, liabilities, and causes of action whatsoever, resulting from or arising out of or in connection with the action, whether such claims have now arisen or shall arise in the future.

6.(sic) OUP will use best endeavours to procure the agreement of Sir Michael Atiyah, Dr. Lauchlan Black and Miss Anne Smallwood not to take further steps to enforce the Costs Order made by Master Barratt on 6 March 1989.

7. Malcolm and OUP will keep strictly confidential and not disclose the terms of this agreement to any third party, save that the terms of this agreement may be disclosed to Clifford Chance, Harvey McGregor QC and Richard White on condition that Clifford Chance, Harvey McGregor QC and Richard White agree not to disclose the terms of this agreement to any third party.

8. In the event that Malcolm is in breach of any term of this agreement, and without prejudice to any other right or remedy which may be available to OUP, OUP shall be entitled to repayment of the sums paid pursuant to the Order of Master Barratt dated 31 January 1992, and to clause 2 hereof. [This would have meant me being liable to pay the entire settlement back to OUP if any little detail of it were subsequently leaked to the newspapers. As it transpired, within days of the eventual agreement's signing, various figures were leaked to Private Eye - by Clifford Chance themselves! - A. M.]

Kindly confirm your agreement with the terms of this letter by signing and dating this letter at the foot of the page before returning the original to us and retaining a copy for your own use. Upon receipt by the solicitors of OUP of the letter signed by you, the agreement in this letter shall become final and binding.

Andrew Malcolm ..............

Clifford Chance ..............
Solicitors for the Chancellor, Masters and Scholars of the University of Oxford

Dated: 14th May 1992

A list of the names of the partners and their professional qualifications is open to inspection at the above office. The partners are either solicitors or registered foreign lawyers regulated by The Law Society under the Financial Services Act 1986

The next item appeared to be the draft of a fax to be sent to certain banks which were in litigation with various councils around the country. Presumably this was enclosed with the above letter by mistake and instead of the promised payment schedule - a bungle made during a negotiation in which their clients' chief concern had evidently, and rather late in the day, become confidentiality! - A. M.

DRAFT FAX TO FOLLOWING BANKS

Interest Rate Swaps Litigation

We have today been advised that NationsBank has settled its case against the London Borough of Hammersmith and Fulham, so that there are now no remaining lead actions on foot.

To date, three banks have notified the Co-Ordinating Committee of their intention to apply to the Court on 8 June 1992 to have the following actions heard as lead cases:

Morgan Grenfell & Co. Limited
(i) Welwyn Hatfield D.C. (1991/366 and 1991/1440)
(ii) South Tyneside MBC (1991/363)
S.G. Warburg & Co. Limited
(iii) Birmingham City Council (1991/1635)
Chemical Bank
(iv) Sandwell (1991/213)
(v) Welwyn Hatfield DC (1991/215)

You will appreciate, however, that there is no guarantee that these actions, if selected as lead cases, will proceed to trial. Indeed the experience of the first seven lead cases would suggest that such cases are likely to settle either shortly before or shortly after the first day of the trial. The motivation for such settlements appears in part to be derived from the escalation of legal costs. There appears to be no solution to this, unless legal costs can be spread, either amongst several lead case parties, or amongst banks generally.

It therefore seems unwise for following banks to proceed on the assumption that a judgment which may be used as a precedent will be derived from the lead case procedure at some stage. You may, however, be able to bring some pressure to bear on local authorities with whom you have been conducting settlement negotiations by indicating that a lack of progress prior to 29 May 1992 might lead you to make an application to have the stay lifted in respect of your action against that authority.

You may recall that we wrote to you in March of this year when the first wave of lead cases settled prior to trial. We raised for your consideration possible alternatives to the normal litigation process, and suggested that some form of "alternative dispute resolution" procedure could be set up involving mediation between the parties, perhaps by barristers familiar with mediation and with swaps and restitution issues. There may be some mileage in raising this possibility with local authority counterparties, suggesting that Leading Counsel for the Banks and for the local authorities in the first wave of lead cases attempt to agree on guidelines for settlement and/or mediate between the parties.

Some support has been shown for the proposed meeting of legal advisers on 29 May 1991 to discuss the selection of lead cases and co-ordination of approaches. Please let me know whether you wish to have any matter raised at the meeting on your behalf, or if you are in favour of pursuing some alternative procedure as outlined above.

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