Letter from Clifford Chance to Andrew Malcolm, dated 29th June 1992 (in fact faxed 30th June)

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 fax of 29 June 1992.

It appears that we are now very close to settlement. Unfortunately there are still several points which are of concern to our clients.

1. In connection with paragraph 6, we note that neither Alan Ryan nor Richard Charkin are employed by OUP, nor are they authorised to speak on its behalf, and accordingly do not fall within the ambit of "servants and agents". As our clients do not exercise any form of control over these persons, they cannot require them not to publish or solicit for publication any statements etc. Our clients would be prepared to ask Alan Ryan, Henry Hardy and Richard Charkin not to do so, but cannot agree to do more than that.

2. With respect to paragraph 7, we note that it may be necessary for our clients to issue an instruction in order to ensure that the undertaking is adhered to by their servants and agents, and a proposed form of words is attached [following]. We have amended paragraph 7 to provide for this. [Second sentence added: "For the purpose of giving effect to this undertaking, the defendants may disclose the text of this term to their servants and agents from time to time."]

3. We have no difficulty with the inclusion of the words "statements, letters or articles" in paragraph 7. However, we feel the word "adverse" serves only to detract from the clarity of the word "derogatory". Unless you are able to explain what kind of statement you envisage would be "adverse" but not "derogatory", we are not prepared to agree to the insertion of the word "adverse".

4. Also in connection with paragraph 7, we have no objection to the inclusion of the words "or any of them". Our clients would be prepared to agree not to publish or solicit for publication any statements etc, but we do not consider that the expression "solicit for publication" is clear. Please explain what you consider the proposed amendment adds to paragraph 7.

We are grateful for your confirmation that you have not mentioned any terms of the proposed settlement agreement to any journalist or reporter. Please also confirm 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.

As stated in our letter of 25 June, our clients do not see any reason for a press statement to be issued. Paragraph 6 of the draft Consent Order provides a form of words to deal with your concerns.

We have submitted the revised draft Order to our clients in the form attached and have written to the solicitors for the third parties [the subpoenaed witnesses] requesting their agreement as set out in the draft Consent Order.

We would anticipate being in a position to present you with, at least, faxed copies of those letters, should it be possible to proceed with the apppointment before Master Barratt at 2.15 pm on Wednesday, 1 July (the original letters would be forwarded to you directly).

The time of the proposed appointment with Master Barratt is convenient, but clearly it will be necessary for us to agree the terms before the appointment can be finalised.

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

DRAFT TEXT OF MEMORANDUM TO OUP EMPLOYEES

The Press and Andrew Malcolm have agreed to settle their outstanding claims, but are bound by mutual undertakings of confidentiality as to the terms of the settlement.

You are hereby requested not to publish or solicit the publication of any derogatory statements, letters or articles about Andrew Malcolm or about the merit or quality of Andrew Malcolm's work Making Names.

DRAFT CONSENT ORDER (Oxford), 30th June 1992

1. The balance of the funds held in Court to the credit of this action, namely £XXXXX plus interest accrued since 2 May 1991, shall forthwith be paid out to the Plaintiff in full and final settlement of all causes of action herein, as directed in the Payment Schedule annexed hereto.

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, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits and quality of the Plaintiff's work Making Names. For the purpose of giving effect to this undertaking, the Defendants may disclose the text of this term to their servants and agents from time to time. The Defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or 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 July 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

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