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/O0452/001/MTS

Mr Andrew Malcolm
xx Southover Street
Brighton
Sussex
BN2 2UD

Without prejudice save as to costs

Dear Sir

Malcolm -v- Oxford University

Thank you for your letter of 23 June 1992.

We have considered the draft Consent Order which you have provided. We have no difficulty with Clauses 1 to 5 and 8 thereof although we have slightly amended Clause 4, and have included a release binding the parties.

With respect to your Clause 6, our clients would be prepared to agree that the terms of the agreement may be disclosed to the parties' professional financial advisers insofar as it is necessary to do so to comply with their legal obligations, but consider that the words "or cause, permit or otherwise procure disclosure of" should be inserted after the words "not disclose".

With respect to your proposed Clause 11 we require your confirmation that you are not aware of any reason why the terms of settlement "may enter the public domain through no fault of either party" or that the proposed terms of settlement have already entered or are about to enter the public domain.

We consider that the parties should reply to questions regarding the settlement with the words "the parties are bound by mutual undertakings of confidentiality and accordingly can make no comment touching upon the terms of the settlement", and have incorporated a proviso into Clause 6.

With regard to your Clause 7, you will appreciate that our clients are not in a position to give any undertaking in respect of their former officers or employees over whom they have no control. As we have previously explained, provided that the undertakings of confidentiality are adhered to, it will not be necessary for our clients to make any statements touching upon you or your work. It is otiose to require an undertaking not to make defamatory remarks or statements: such remarks are per se actionable at law. Our clients would however be prepared to undertake that they, their servants and agents will not publish or solicit the publication of derogatory statements about you, or the merits and quality of the work "Making Names".

So far as your Clauses 9 and 10 are concerned, our clients are not prepared to agree to the form of alternative dispute resolution suggested nor to the "lower 'ceiling' figure" you propose. Both you and our clients have indicated your intention to settle this matter once and for all without further troubling the Court. In those circumstances, our clients would be prepared to waive the requirement for a penalty clause and would propose to rely on such rights and remedies which are in any event available to them in law in respect of any breach of the proposed agreement.

Our clients do not consider that there is any necessity to make any press statement announcing that an out-of-court settlement has been agreed.

The person referred to in our letter of 19 June 1992 as the Secretary is the Registrar.

A revised draft Consent Order is enclosed for your consideration. If you agree to the form of this draft, we shall submit the proposal to our clients for their approval, contact the solicitors for the third parties, and would envisage being in a position to finalise this matter during the course of next week.

We look forward to hearing from you.

Yours faithfully,

Clifford Chance

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

2. The Plaintiff's Appeal and the Defendants' Respondents' Notice shall be dismissed by consent, such forms of dismissal by consent to be signed exchanged and lodged on the date hereof.

3. The Defendants will use their best endeavours to procure letters of agreement of Sir Michael Atiyah, Dr. Lauchlan Glenn Black and Miss Anne Smallwood not to enforce the Order for taxation of their costs made by Master Barratt on 9 March 1990 or any other costs claims against the Plaintiff, such letters of agreement from the solicitors for the abovementioned to be addressed and handed to the Plaintiff on the date hereof.

4. Subject to the fulfilment of Clause 3 above, the Plaintiff will forthwith release Sir Michael Atiyah, Dr. Lauchlan Glenn Black and Miss Anne Smallwood from any and all claims arising out of or in connection with these proceedings.

5. Each party hereby agrees to bear its own costs of the action notwithstanding any Order for costs made in these proceedings.

6. From the date hereof both the Plaintiff and the Defendants will keep strictly confidential and not disclose, nor cause, permit or howsoever otherwise procure the disclosure of, the terms of the agreement herein to any third party, save as required by law, and save that the terms of the agreement herein may be disclosed to the parties' professional financial advisers and to Clifford Chance and Harvey McGregor QC (for the Defendants) and to Richard White (for the Plaintiff) on condition that the aforesaid agree not to disclose the terms to any third party. These undertakings of confidentiality apply to the terms of the agreement herein but not to the fact of the settlement and when questioned concerning the settlement, the parties shall reply with words to the following effect: "The parties have agreed to settle their outstanding claims but are bound by mutual undertakings of confidentiality and accordingly are not at liberty to discuss or comment upon the terms of the settlement".

7. The Defendants agree that they, their servants and agents will not publish or solicit the publication of any derogatory statements about the Plaintiff or about the merits and quality of the Plaintiff's work Making Names.

8. The undertakings contained in Paragraphs 6 and 7 hereof are of unlimited duration.

9. Subject to the fulfilment of the terms hereof, the Plaintiff forthwith releases the Defendants, and the Defendants forthwith release the Plaintiff, from any and all claims arising out of or in connection with these proceedings.

Dated the ...... day of June 1992

I consent to the terms of this Order

...................

Andrew Malcolm, The Plaintiff in person

We consent to the terms of this Order ...................

Messrs. Clifford Chance, Solicitors for the Defendants

Click for the next item in this correspondence or for the correspondence index.

Return to the Malcolm vs. Oxford I (1984-92) Index, or to the Malcolm vs. Oxford II (2001-02) Index.

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, to the Appeal Court Judgment, to the Damages assessment, to the Settlement agreement.

Return to the Malcolm vs. Oxford I (1984-92) Index, to the Malcolm vs. Oxford II (2001-02) Index, to the blurb for Making Names, to its reviews, to The Remedy, or to the SITE INDEX.