Affidavit of Professor Sir Michael Francis Atiyah, sworn 7th March 1990, applying to set aside Subpoena. Applications to set aside this and the two other similar subpoenas resulted in a hearing before Chancery Master Barratt on 9th March 1990 attended by a phalanx of Oxford lawyers, who, for their three days' work, proudly presented me with bills totalling £8,624.67. Some jape. - A. M.
I Sir Michael Francis Atiyah of Shotover Mound, Headington, Oxford MAKE OATH and say as follows:
1. I am a Royal Society Research Professor at the University of Oxford.
2. On last Saturday, 3rd March, 1990, I was served with a writ of subpoena requiring attendance on Monday 12th March 1990 at 10:30am at the Royal courts of Justice in order to give evidence on behalf of the plaintiff in this action. At the same time I was handed £25 by way of conduct money.
3. As I understand it, the action concerns the question of whether or not the Oxford University Press contracted to publish a manuscript written by the plaintiff. Paragraph 26 of the plaintiff's re-amended statement of claim refers to a meeting on 23rd July 1985 of the Delegates of the Oxford University Press.
4. During 1985 I was indeed one of those Delegates but in fact I was not present at the meeting on Tuesday 23rd July 1985. There is now produced to me a bundle of correspondence and other documentation marked "MFA 1". The document numbered 1 in this bundle is the first page of the minutes of the meeting held on Tuesday 23rd July 1985. It can be seen from the list of those present that my name is not amongst them. Although it is true to say that, in the normal course of events, I would have been supplied with an agenda for that meeting beforehand and the minutes of the meeting afterwards, I cannot now recall whether or not I actually received those documents and I'm quite certain that I do not possess those documents now.
5. My first contact with the plaintiff was on 8th May 1989 when he telephoned me. At pages 2 and 3 of MFA 1 there is a transcript of the telephone conversation prepared by the plaintiff. As far as I can recall it is accurate. During the course of that conversation I stated that if Mr Malcolm wished to write to me I would look at my records and check the facts as set out by him. This telephone conversation had come to me out of the blue and when I said this I had no way of knowing whether or not that actually still retained my records of the meetings in 1985.
6. In a letter dated 9th May 1989 the plaintiff wrote to me setting out certain questions and a copy of that letter is a page 4. Following receipt of the latter I made a thorough search of my records and discovered that I had in fact disposed of the papers relating to the Delegates'affairs in 1985 some time previously. I replied to the plaintiff on 16th June 1989 setting this out. A copy of my letter is a page 7 of the bundle.
7. I received no reply to that letter and thought no more about this matter until Saturday 3rd March when I was personally served with the subpoena herein. I note that the writ was issued on 13th February 1990 and that it has taken the plaintiff almost three weeks to serve the same.
8. I understand that Professor Sir Roger Elliott, who it appears from the minutes took the chair on 23rd July 1985, will be giving evidence in these proceedings and that his witness statement has already been produced to the plaintiff. I also understand that the minutes of the meeting and all other relevant documents have been disclosed by the defendant's solicitors to the plaintiff.
9. In my submission therefore the plaintiff well knew as long ago as June of last year that not only was I not at the meeting, but also that I no longer retained any of my own papers relating to the Delegates matters in 1985. He would therefore have known that I'm not in a position to give any relevant evidence in this action and consequently I submit that the writ of subpoena has not been issued bona fide for the purpose of obtaining relevant evidence.
10. Furthermore the fact that the writ has been served at such short notice places me personally in very considerable difficulties. I am due to give three lectures in Geneva on 12th, 13th and 14th March to the Centre Europeen de Recherche Nucleaire (CERN). It is impossible for me to rearrange these lectures at such short notice and my absence will cause considerable inconvenience not only to myself but to those to whom I am meant to be lecturing. Furthermore the monies tendered by the plaintiff do not defray my expenses because I shall have to purchase a new plane ticket which I believe will cost in the region of £220.
11. In the light of the foregoing I respectfully ask this honourable court to set aside the writ of subpoena herein and order that the cost of this application be paid by the plaintiff.
Sworn by the said Sir Michael Francis Atiyah, 7th March 1990 at 14 King Edward Street, Oxford
Go to the other subpoenaed witnesses' affidavits: Black, Smallwood.
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 Cambridge package and the Adrasteia package, to the publishing contract affidavits: Giles Gordon (1); Mark Le Fanu, to the APPEAL COURT JUDGMENT, to the damages affidavits: Alan Ryan; Asquith (3); Jeremy Mynott; Giles Gordon (2); Fred Nolan; Roy Edgley, to McGregor on Royalties (transcript), to the DAMAGES FINDINGS, and to the Settlement agreement.
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