NOTE. On 18th December 1990 the Court of Appeal ordered that there should be a court enquiry to assess the quantum of damages, but at the same time urged Oxford with "a becoming magnanimity" to settle the dispute out of court. In the event, three months went by without Oxford making any offer of any kind, necessitating a return to law and the filing of the following 'Points of Claim'. - A. M.
I, ANDREW MALCOLM, of 7 Southover Street, Brighton BN2 2UA MAKE OATH AND SAY as follows:-
1. I am the Plaintiff in this action and I make this Affidavit
in support of my claim for damages upheld by the Court of Appeal
on 18th December 1990. The calculations herein are based upon
but supercede those made in my Further and Better Particulars
served on 16th November 1989.
2. There is now produced and shown to me tied together in a
bundle containing 17 sheets and marked "Exhibit A.M.8" a bundle
of true copies of relevant documents the details of which are
set forth in the index to the exhibit, which are numbered at the
foot of each page and which are referenced herein thus [x].
Page-references herein thus (y) relate to the numbering of the
bundles used in the trial and the appeal.
3. The damages are claimed under 4 headings: I. Royalties lost as a result of the defendants' breach
of contract to publish my philosophical text Making
Names
II. The loss of my opportunity to secure a reputation as a philosopher and author by virtue of securing the defendants' imprimatur on my work
III. The loss of my ability to have any further dealings
with any publishers
IV. The pain and suffering caused by the defendants' breach of contract and the litigation that has resulted from it.
The Judges' Remarks on Remedy
4. In his trial judgment of 16th March 1990, Deputy Judge Gavin Lightman Q. C. writes (12D) "I would have been minded to indicate that a substantial award of damages was called for to recompense Mr. Malcolm for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work."
5. In his appeal judgment of 18th December 1990, Lord Justice
Mustill (p.41) writes that "too much should not be built on" the
judge's above-quoted remark, adding "Making Names might have
been one of the rarities in the field of mathematics, logic and
metaphysics which captured the attention of the non-specialist
purchaser. Equally, it might like its distinguished predecessor
have 'fallen dead-born from the press'". This is a quotation
from David Hume's autobiography about the initial unpopularity
of his Treatise of Human Nature, which was published by the
Defendants in 1739. The Treatise, of course, later became a
classic text, its Book 1 being regarded by its Oxford editor as
"the most important work of philosophy in the English language".
It has sold, and continues to sell, in millions.
6. In his appeal judgment of 18th December 1990, Lord Justice
Nourse (p.7) quotes the remarks of Deputy Judge Lightman in
paragraph 4 above and adds: "Even if it was open to this court to
take a different view from the judge on this question, I
certainly would not do so. I think that that part of his
decision was plainly right. The appellant's only remedy is an
award of damages." He makes no further comment.
7. In his appeal judgment of 18th December 1990, Lord Justice
Leggatt (p.5) agrees with Lord Nourse and concludes: "But a
becoming magnanimity on the Respondents' part, matched on the
part of Mr. Malcolm by a realistic moderation, will avoid the
need for any enquiry." To date [29th March 1991] I have received from the
Defendants no offer of any kind, magnanimous or otherwise.
I. Loss of Royalties
8. It is true that academic philosophy texts rarely sell in
large numbers, but Making Names was not an academic text, it was
aimed at a general readership. It is clear from the evidence
(B1-70) that this was not only the Plaintiff's view, but the
view of all of the Defendants' officers and expert referees who
read the book. It is assumed that in a proper fulfilment of the
Defendants' contract to publish the book, they would have made
every reasonable effort to secure for it as wide a market as
possible, in the spirit of Mr. Hardy's words of 21st May 1985 that it
be "a terrific success" (B45).
9. Estimating the likely sales of a general readership book
would normally be a highly speculative exercise. Some such
books sell in hundreds, others in millions, with the flops and
successes apparently being hard to predict. A recent notable
example is Stephen Hawking's A Brief History of Time, which was
rejected by numerous publishers before being adopted by Bantam,
whose initial print-run was 9,000. The book went on to spend
over 100 weeks in the UK best-seller lists, has been translated
into 21 languages and has now sold over 7 million copies [15].
10. In the case of Making Names, however, there is a certain
amount of evidence concerning the book's (1985) sales prospects.
My own high hopes and ambitions for Making Namesneed no
explanation and are well documented in the evidence (B1, 16,
18, 25, 32, 50, 70). My earlier correspondence with Kim Pickin
of Blackwell, discovery of which has recently been requested by
the Defendants, provides a further useful 'witness statement' on
this aspect [1-10]. Moreover, I was not alone in having high
hopes of the book: the evidence shows that all the officers and
referees of the Defendants who read the book shared my optimism.
11. The philosopher Alan Ryan whom the defendants appointed their first referee wrote that the book "might do well as a sort of introduction to philosophy for people doing 'A' Level philosophy under the new dispensation and people doing Open University courses" (B22) and later compared its sales prospects with the successes of Douglas Hofstadter's Godel, Escher, Bach and Colin Wilson's The Outsider (B64). Hereunder in paragraphs 22-26 the calculations of Making Names' likely sales are based upon these predictions of Mr. Ryan's.
12. The Philosopher Galen Strawson whom the defendants
appointed their second referee wrote that Making Names "is
really quite an attractive book... It is very easy to read... It might prove extremely effective as an introduction to philosophical problems and procedures" (B58).
3. The editor Henry Hardy said that by the end of the book he
"was reading with the kind of attention one gives to a novel,
which is not very usual with a philosophical work" (B37) and
wrote that he hoped it would be "a terrific success" (B45). He
also talked of it as possibly being a film or a TV script (B38).
Making Names approved as a Paperback
14. The initial print-run specified by Mr. Hardy was 2,000 of a
hardback retailing in 1986 at £15 (B54, B60) and yielding an
average royalty of £1.52 per copy. It is the practice in the
trade to start with a short hardback run and 'see how it goes'.
If successful, further runs are ordered, with larger, cheaper
paperback runs following if the demand is perceived (F92, F94).
Launching a book in paperback therefore demonstrates a
publisher's unusual confidence in its sales prospects.
15. In the telephone conversations of 26th April and 20th May
1985, Mr. Hardy indicated that he was considering taking the step of launching the book in paperback as well as hardback (B29, 42), but was still undecided. In subsequent telephone conversations on 18th July and 19th July 1985 he revealed that he had planned to get it approved at the editorial meeting of 17th July as a hardback and then switch the specifications also to include paperback production [11, 13]. He suggested a paperback price of £7.95 or £8.95. The possibility of his so changing the production order is confirmed in his witness statement (C62) and by Richard Charkin's witness statement (C66).
16. In a recent letter to me of 11th May 1990 [143] Alan Ryan states "To succeed, it (Making Names) would always have to have been a paperback aimed at beginners." Alan Ryan was present at the Delegates' meeting of 23rd July 1985 mentioned below.
A Document Still Missing
17. The weight of evidence now firmly suggests that, as averred
in paragraph 26 of my amended statement of claim, Making Names
was formally approved at a meeting of the Delegates on 23rd July 1985. The most recent confirmation of this was the list (G6 = AM7 p.6) included in the anonymously posted 'Adrasteia' package (see my 6th affidavit of 15th October 1990), although in his 3rd affidavit of 16th October 1990 Sir Roger Elliott states that he "is convinced that this document is a forgery".
18. In response to Mr. Shaw's 5th affidavit of 16th October
1990 I would like to add that prior to Mr. Shaw's telephone
conversation with Mr. Will Sulkin of that day, I telephoned Mr.
Sulkin and read out to him the contents of the various lists in
the Adrasteia package. Mr Sulkin said that they all sounded
genuine, including G6.
19. The Adrasteia package also contained 4 other lists of
general books dated 20th July 1984 (incomplete), 23rd May
and 5th June 1985 for meetings held on 24th July 1984 (the
summer vacation meeting), 14th & 28th May and 11th June 1985.
Sir Roger Elliott (16/10/90) has certified these as being
genuine, describing them as lists of paperbacks tabled for
information. This contradicts his 1st affidavit of 19th July
1989 (E61), his amended witness statement of 13th November 1989
(C54) and his testimony given in court repeatedly on 14th March
1990. It also contradicts the witness statement (C69) and
testimony of his secretary Margaret Goodall, the affidavit of
the Vice-Chancellor's secretary Anne Smallwood (F46), and the
affidavit of former Delegate Dr. Glen Black (F38).
20. Furthermore, it appears from this new admission that the
list of paperback general books tabled at the summer vacation
meeting of 23rd July 1985 is still missing, despite its
discovery having repeatedly been ordered, specifically by
Justice Morritt on 6th March 1989 (A43). From the Defendants'
failure to discover this list I infer that it included Making Names.
21. It should be noted that the matter of the book's approval
as a paperback, and the evidence relating to it, were not aired
at either the trial or the appeal.
The Lost Royalties Calculation
22. Since compiling my Further and Better Particulars, I have
obtained more reliable, and higher figures for the sales of
Godel, Escher, Bachand The Outsider. Godel, Escher, Bach has sold over 200,000 English-language copies (45,000 in hardback)
and has been translated into 8 foreign languages, while The Outsider
has sold over 300,000 English-language copies (again
45,000 in hardback) and has been translated into 10 foreign
languages. For both books, the vast majority of these sales
were in their first 5 years of publication.
23. Incidentally, The Outsider was Colin Wilson's first
published work and its first printing was 5,000 copies.
Likewise, Godel, Escher, Bach was Douglas Hofstadter's first
Book, and was regarded as "unpublishable" by Harvester's managing
Director, who ordered a short first print-run. Also
incidentally, the sales figures of The Outsider are almost
exactly parallelled by those of another philosophy text
mentioned in the evidence in relation to Making Names (B70),
A. J. Ayer's Language, Truth and Logic.
| Year | A Level* | Open Uni.** | UCCA applications |
| 1986 | 365*** | 13,631 | 2.425 |
| 1987 | 403*** | 13.890 | 2.364 |
| 1988 | 537 | 13,567 | 2.746 |
| 1989 | 538 | 12.165 | 3.630 |
| 1990 | 594 | 12.500**** | 4.465 |
| Totals: | 1.953 + | 65.753 + | 15.630 =83,336 |
* Associated Examining Board.
** Open University philosophy and philosophy-related courses A310, A311, A101/2, A203/4, A228, A292, A381, A403, E263, U203, U205 and U235 (A293, A294 and MA290 are omitted).
*** Figures uprated to include 'drop-out' factor.
**** Estimate.
| Year | Royalties | Interest to 30/6/91 | |
| 1986 | £115,296 | £101,482 | |
| 1987 | £115,296 | £73,206 | |
| 1988 | £25,621 | £10,653 | |
| 1989 | £25,621 | £5,968 | |
| 1990 | £25,621 | £1,895 | |
| Totals | £307,455 + | £193,204 | = £500,659 |
Tax
28. As anticipated in Mr. White's letter of 14th February 1991,
I have omitted from the calculation any deduction of tax.
assuming that any damages will be taxed appropriately in my
hands.
II. Loss of Opportunity of Gaining Reputation, OUP Imprimatur.
29. Deputy Judge Gavin Lightman's observation is quoted above
in paragraph 4. If not self-evident, Mr. Hardy himself explains
the importance of securing a reputable imprimatur on one's work
in the course of the telephone conversation of 19th July 1985
[12]. Apart from any career as an author, securing the OUP
imprimatur on one's work greatly enhances one's prospects of
advancement as a teacher, as a lecturer, or as an academic.
There can be no better witnesses on this aspect than the members
of the Defendants themselves.
III. Loss of Ability to Deal with Publishers.
30. I wish this aspect to be taken most seriously. First it
is now highly unlikely, in view of this litigation, that any
publisher will be interested to have any dealings with me.
Second I myself am now quite unable to have any further dealings
with publishers. Such dealings require a level of trust which
has been irretrievably broken. I feel that the world of
published writing is therefore now lost to me and that this, in
the end, is perhaps my greatest loss of all.
IV. Pain and Suffering
31. I hope that this will be evident from the paperwork and the
history of these proceedings, which will have lasted for over 5
years. On this aspect I would like to note that an agreement to
publish a book is unlike most normal types of commercial
contract or transaction. First, it has the form of a joint
venture, a partnership, requiring a continuing faith in
publishing generally that, as explained above, has now been lost
to me. Second, it involves artistic, creative inspiration, a
precious commodity which can all too easily be snuffed out and
which in my case is now thoroughly embittered. Third, there is
a sense in which this contract was a contract to provide me with
freedom from distress; I have in mind in particular the first
paragraphs of my letters of 30th May and 22nd July 1985 (B46, 70).
Sworn in Brighton by ANDREW MALCOLM, 29th March 1991
Go to Master Barratt's Order of 19/4/91 (directions re. damages).
Click for the Malcolm vs. Oxford I (1984-92) Index or the Malcolm vs. Oxford II (2001-02) Index
Go/return 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 Statement of Claim, to the Case History, to the Chancery Court Judgment, to the Appeal Court Judgment.