The high level of interest, especially Oxford interest, generated by the February 2010 posting Falasha in the Pan has prompted me to delve back into the murky, grainy, black-and-white past of my lawsuit against the university, and for the benefit of scholars, delegates and pedagogues everywhere, I have dug out and transcribed below the papers which record the long wrangle in court over the 1988 'striking out' of Richard Charkin, a sub-saga which in acute, entertaining detail explores the famously problematic relationship between Oxford's homebound university and its multinational press.
In the course of OUP's 1977 application to the Inland Revenue for exemption from Corporation Tax (in effect charitable status), IR official Betty McRobert described this difficult relationship as a case of "the tail wagging the dog". That is to say, in her view it was the Press that ran the University, not the University that ran the Press. And remember that back then OUP's annual turnover was just 46 thousand pounds. Today it is over 600 million pounds. (rf. OUP accounts index)
It was against this background that on 23rd December 1986 I served a writ for breach of contract on the Chancellor, Masters and Scholars of the University of Oxford (the first defendants), with a bracketed qualification "trading as Oxford University Press" deleted by the Court staff literally on Day One of proceedings. OUP's Managing Director Richard Charkin was named in the writ as a second defendant, but, in the light of the first round of discovery of Oxford's documents, was not served with it until February 1987. Oxford's solicitors then at once applied to have him struck out of the action, and at a hearing on 22nd October 1987, Chancery Master Barratt agreed, provided that all of his actions relating to Making Names were ratified by the university Delegates as being bona fide (in good faith) and within the scope of his authority at OUP. The Delegates are the committee of senior university dons who according to the university statutes are in charge of and responsible for the running of OUP (the equivalent of a board of directors or trustees).
Unfortunately, at the end of the hearing the Master left it to the two sides' solicitors to agree a draft of his order, thereby (of course) guaranteeing a lengthy lawyers' wrangle over its precise wording (an idiotic pantomime that was to recur). I and my solicitor Richard White suspected - correctly as it turned out - that the OUP Delegates were being kept in the dark about the case and we, and I think Master Barratt too, wanted to ensure that it came at least to their attention, and if possible under their careful scrutiny. It quickly became apparent that this was the OUPites' chief dread, as their lawyers Dallas Brett at once began some prodigious squirming.
Dallas Brett began by asserting that Master Barratt's requested ratification of Charkin's actions should not form part of his order at all, but had been made by him merely as an aside, and their first offering was the letter below from Robin Denniston, the Oxford Publisher and, it was generally known, Charkin's mentor at the Press. It was Denniston, Akme scholars will remember, to whom I had personally and confidentially written back in July 1986 before the lawsuit got going setting out the whole story in the hope of averting the looming litigation. Charkin had intercepted my letter and, quite improperly, had replied to it himself, provoking a second letter from me to Denniston, who then meekly just crept away.
HEADING: Ref RAD/am 1 December 1987 Dear Miss Sweetman [of Dallas Brett], I write in response to your letter of 27 November to confirm that the actions taken by Mr. Richard Charkin at the Editorial Meeting, when Mr. Malcolm's book was considered, were completely within the scope of his authority. Yours sincerely, R.A. Denniston Miss Jane Sweetman, cc. Richard Charkin |
No prizes for spotting all the slithery squirms here: no mention of the Delegates; addressed to his own lawyer, not to mine or to the court; only Charkin's actions at an unspecified editorial meeting ratified, not all of his actions (for example his attempt to sack Hardy over the affair); "in good faith" translated as "completely"; and so on.
Richard White responded with a draft of the relevant clause of Master Barratt's would-be order reading:
AND UPON the first Defendants by their Counsel undertaking to write to the Plaintiff's Solicitor a letter authorised by the Delegates of the first Defendants stating that the second Defendant acted at all material times in relation to the first Defendants' dealings with the Plaintiff's work 'Making Names' bona fide within the scope of his authority in the first Defendants' organisation...
Dallas Brett responded (23rd December) by again asserting that "they had no recollection of" Master Barratt requesting a letter of ratification of Charkin's actions. This obliged White to return to Master Barratt himself for clarification, sending him different draft orders to choose between. On 20th January 1988, Master Barratt telephoned White with some startling revelations; I here reproduce White's attendance note verbatim:
1. Master Barratt telephoned me on 20th January 1988 at 12.15. p.m. He said that he had received my letter and enclosures. He said that he had spoken to the person dealing with it at Dallas Brett, who is new there, a Mr. Shaw, who has only been there a week but who seemed to have a very detailed grasp of the case already. 2. He said that Mr. Shaw had confirmed that the amendments to the writ and amended statement of claim were indeed agreed between the parties so that looks after that aspect. 3. He said that Mr. Shaw had told him that the Delegates of the Press are a body of distinguished old gentlemen who only meet about once a year so that there is difficulty in obtaining a letter signed by all of them. He said that Mr. Shaw had said that they were quite willing to give an undertaking that Mr. Denniston, the Deputy Secretary and Oxford Publisher, who is effectively the managing director of the Press, would write us the letter, and that such a letter had indeed been sent to us [i.e. the one above]. He said that Mr. Shaw had read him the letter and he had told Mr. Shaw that he did not think that the reference to a single occasion would satisfy us. He was therefore proposing to include in the order an undertaking, and he understood that this would be acceptable to the defendants, that Mr. Robin Denniston should provide the letter for and on behalf of the Delegates and then following my [White's] wording of the undertaking. He said that he trusted that would be acceptable to my client. I said that he had spotted one of the points of Denniston's letter which concerned us was relating to the single occasion and another was the absence of the words "bona fide". He said that his order would follow the words of my undertaking subject to Denniston producing the letter for and on behalf of the Defendants. 4. He said that he would pass the papers to the Registry for stamping and they would no doubt be returned to me in due course. 5. I thanked him. |
I and White knew that Shaw's "once a year" assertion was an absurd lie (the Delegates in fact meet fortnightly in term-time and also at other times of the year), and Master Barratt (himself an Oxford man) must have known so too. This was the chief lie with which I subsequently confronted all the Delegates in my letter of March 1988, a lie which not one of them stepped forward to nail. Master Barratt's long-contentious order was finally entered on 28th January 1988, three months after the hearing; its ratification clause reads:
. . . AND UPON the first Defendants by their Counsel undertaking to write to the Plaintiff's Solicitors a letter signed by Mr Robin Denniston the Deputy Secretary and Oxford Publisher for and on behalf of the Delegates of the First Defendants stating that the Second Defendant acted at all material times in relation to the First Defendants' dealings with the Plaintiff's work "Making Names" bona fide within the scope of his authority in the First Defendants' organisation
IT IS ORDERED THAT . . .
(Click for full text of order)
On 16th February 1988 we received from Dallas Brett a second version of Robin Denniston's ratification letter:
HEADING: Ref RAD/am 2 February 1988 Dear Mr. Shaw [of Dallas Brett], I write to confirm on behalf of the Delegates of the Oxford University Press that Mr. Richard Charkin acted at all material times in relation to the first defendants' dealings with the plaintiff's work 'Making Names' bona fide within the scope of his authority within the Oxford University Press. Yours sincerely, R.A. Denniston Andrew Shaw Esq., |
Squirm-hounds will note that Denniston has still slithered away from full compliance with Barratt's order by addressing his letter to Oxford's solicitor rather than to mine, a ploy which would have rendered any perjury involved (e.g. its non-authorisation by the Delegates) less easily actionable (suffering from, in the jargon, "an absence of warranty of authority"). It later turned out that the Delegates, after all that, had never been consulted about the ratification of Richard Charkin's actions. Also note that this time no copy of Denniston's letter was sent to Charkin, who was then duly 'struck out' of the Malcolm case by Barratt, and soon afterwards 'struck out' of OUP altogether.
Denniston retired from OUP in 1989 to become, wouldn't ya credit it, Vicar of Great Tew, where, some years later I enjoyed the privilege of being personally blessed by him (yes, the two pious fingers applied gently to the unknown forehead) at a traditional Christmas service of nine lessons and carols, complete with attendant squadron of muslin-winged angels.
In his 1990 Court of Appeal judgment in my case, Lord Justice Mustill, who was obviously puzzled as to why the University had ever allowed the disastrous 6-year travesty to progress so far, assumed that the Delegates had been kept in ignorance of the case by the Press, writing (pp 42-43):
"The history of the interlocutory proceedings suggested that there was a failure of communication between the respondents' legal advisers and those in charge at the Press. Could it also be that the Delegates whose interests are so directly in suit were out of touch with what was going on in the action? Could it be that they did not know what had been, what was being, said about the stance adopted by the Press?"
In fact however, although the Delegates may have been kept in the dark about the case by the OUP staff, they were made thoroughly aware of it by me in the letter of March 1988, and were subsequently brought up to date by a second letter with which I enclosed the complete Chancery Court judgment. The fact that no Delegate intervened at any stage provides a perfect demonstration of McRobert's dogwagging. In fact, it is perhaps more accurate to say that it was a case of the pet taking its owner for a walk.
Go to the next item or to the previous item 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.