I, GILES GORDON, of 9 St. Ann's Gardens, London NW5 MAKE OATH AND SAY as follows:-
1. I am an independent expert witness in this action and I make this affidavit in support of Mr. Andrew Malcolm's appeal against the Order of the Deputy Judge Gavin Lightman Q.C. made on 16th March 1990. I am herein deposing as to facts within my own knowledge.
2. I have been a literary agent for 17 years. Among my clients are, and in no particular order, Sue Townsend, Peter Ackroyd, Viscount Tonypandy, HRH The Prince of Wales, Fay Weldon, Alan Watkins, Bryan Appleyard, Sir Michael Levey, Professor Ben Pimlott, Professor Roy Foster, HRH The Duke of Edinburgh, Lord Zuckerman. I work as a literary agent with Anthony Sheil Associates. Before becoming an agent, I was a publisher, my last two positions being an editor at Penguin Books and then, from 1968-1973, editorial director of Victor Gollancz Ltd. I have edited about 20 books, including co-editing the annual Best Short Stories series, and am the author of six novels and two collections of stories. I have been theatre critic of The Spectator and of the London Daily News and have contributed widely to the press on book trade matters. I was elected a Fellow of the Royal Society of Literature this year, and have been a member of the Garrick Club for many years.
3. It is as, in the widest sense, a student of the book trade that I became interested in Mr. Malcolm's case. Perhaps I should put it on record that I have not met him nor seen his manuscript. Thus I am not concerned with the "quality" or otherwise of it. I first learnt of this case I think from reading a report in The Bookseller. As a committee member of the Association of Authors' Agents (to which occasionally disputes between member agencies and publishers are brought), an ex-member of the committee of management of the Society of Authors, and as someone whose living depends upon concern for authors' rights, I was worried by the remarks Mr. Lightman made about the information that was to be included in a contractual agreement between an author and a publishing house if that agreement is to have legal validity.
4. To begin with, it is exceedingly rare for an editor or publisher to inform an author in person or on the telephone that a commitment will be made by the publishing house for which the editor or publisher works and then for that oral commitment to be reneged upon.
5. A professional author usually proceeds to work on his or her next book, fiction or non-fiction, academic or otherwise, as the result of an editor saying something to the effect of: "Barring disasters, we will publish your next book".
6. The contractual document itself may take weeks to be fully executed. Its form differs from publishing house to publishing house, and if an author employs an agent (which Mr. Malcolm unfortunately did not) to negotiate terms for him or her, the likelihood is that the agency's form of agreement will be used precisely because that way an author's rights are more likely to be protected.
7. A legally valid contract will contain, at a minimum, the title or subject matter of the book being commissioned or being committed to; the author's name; a delivery date and possibly an approximate length. An advance against royalties and a royalty scale will usually be mentioned too, although sometimes such matters will be left to be agreed at a later stage when the manuscript is delivered and both sides (author and publisher) can assess, as a result of the manuscript's length and prevailing market forces, the optimum retail price and the like.
8. Rarely these days is an approximate price of the book stipulated in a contract, or an intended print run. Even if a manuscript has been delivered and accepted, a contract will rarely stipulate whether the book will be brought out in hardback or paperback or both. Flexibility or pragmatism rather than dogmatism are the usual and intelligent means of procedure.
9. Royalty rates differ widely from book to book. I'm told that some publishers still offer a starting royalty of less than 10 percent of the retail price for a hardback. This, I believe, is the exception. Most hardback royalties, irrespective of the nature of the book, are in the scale of 10 percent to 15 percent these days. Paperback royalties range, usually, from 7.5 percent to 12.5 percent. Export royalties tend to be slightly lower than royalties paid on home sales because of the greater costs incurred by the publisher in selling books overseas.
10. Most books are published first in hardback, then, if there is sufficient demand, in paperback. Sometimes they are published simultaneously in hardback and what is known as trade paperback, a paperback edition that is usually the same format as the hardback and at a higher price than a mass market paperback. In such an instance, 2,000 copies might be bound up as a hardback, 3,000-5,000 copies as a paperback; this would constitute, usually, a single printing, only the binding being different.
11. I have, down the years, negotiated a number of contracts with O.U.P., notably for Professor Foster, Mr Dannie Abse and Mr Richard Ingrams, latter to write a biography of Mr. Malcolm Muggeridge. Without exception, in my experience, editors at the Press negotiate with agents on behalf of authors as if they are editors at any other publishing house. Clearly, were the outside world of professional authors and agents to regard O.U.P. employees as mere cyphers for the Delegates of the Press a Ruritanian condition would have been created.
l2. I would have thought it impossible for an editor at the Press to have any self-respect at all, or for any author to take him or her seriously, were he obliged to keep saying "I think your manuscript is jolly good, and so does the specialist reader to whom I sent it, but all this is irrelevant because it is the Delegates who have the power to decide wither or not we publish it."
13. Frankly, the mind boggles. In my experience the editors at the Press are responsible, highly intelligent people who don't commit themselves lightly to the publication of any book. Of course, given the nature of the Press, they are obliged to invoke the imprimatur of the Delegates, but in practice it is the editors who take the decision to publish. If, as an agent, I had felt when negotiating with Ivon Asquith on behalf of Roy Foster or with Robin Denniston behalf of Richard Ingrams that our work and discussions could be countermanded, whether at whim or the opposite by the Delegates, I doubt whether I would have felt it worthwhile getting involved.
14. Presumably the Delegates, who I understand are academics with divers university responsibilities rather than full-time publishing personnel, like to feel that they are playing at publishing in the way that non-executive directors in certain public companies contribute their wisdom. But the day-to-day running of the publishing house - the most important part of which has to be what books to sign up - must to all intents and purposes be in the hands of the full-time publishing employees.
15. I understand that the O.U.P. still has charitable status and thus, presumably, doesn't have to show a profit from its publishing. It is odd then that in the last few years it has published so many books, frequently admirable, which have sold rather well. Whether Mr. Malcolm's book is more "commercial" than "scholarly" is not for me to say, if only because I have not set sight on it, but either way that in itself would not, presumably, be a reason against its publication.
SWORN BY GILES GORDON, 6th September 1990.
Go to the similar affidavit of Mark Le Fanu or to Giles Gordon's second affidavit. Also go to his obituaries.
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 Malcolm's Points of Claim (the first item in the damages series), to the Damages assessment, or to the Settlement agreement.
Return to the Malcolm vs. Oxford I (1984-92) Index or to the Malcolm vs. Oxford II (2001-02) Index or to the SITE INDEX.