TAKE NOTICE that of the facts alleged in paragraphs 4 to 21 inclusive of the Plaintiff's 7th affidavit herein the Defendants admit the several facts specified in Schedule 1 hereto subject to the qualifications and limitations, if any, hereunder specified, AND further, the Defendants admit the several facts specified in Schedule 2 hereto
SAVING all just exceptions as to the admissibility of such facts or any of them as evidence in this action
AND PROVIDED that these admissions are made for the purposes of this action only, and are not admissions to be used against the Defendants on any other occasion or by anyone other than the Plaintiff.
Dated 31st May 1991.
Clifford Chance, Solicitor for the Defendant
To: R. A. G. White, Solicitor for the Plaintiff
It is admitted that Deputy Judge Lightman "would have been minded to indicate that a substantial award of damages was called for to recompense Mr. Malcolm for the loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work."
It is admitted and averred that Lord Justice Mustill stated that "As to the financial side, although the trial judge said that if he had found a breach of contract, the damages would have been "substantial", too much should not be built on this. 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. Contingencies of this nature must have entailed that even if the appellant's action were to succeed the financial recovery could not be on an extravagant scale."
It is admitted and averred that:
(a) at page 7 of his Judgment, Lord Justice Nourse quoted the remarks of Deputy Judge Lightman in the context of the remedies available to the Plaintiff in respect of the Defendants' breach of contract.
(b) that Lord Justice Nourse added that "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. For my part, I would allow the appeal and order an enquiry as to damages."
It is admitted that:
(a) Lord Justice Leggatt at page 5 of his Judgment agreed with Lord Justice Nourse that the appeal should be allowed and an enquiry ordered as to damages.
(b) Lord Justice Leggatt stated "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."
It is admitted and averred that:
(a) academic philosophy texts rarely sell in large numbers;
(b) Making Names was not an academic text;
(c) that the Defendants agreed to publish Making Names as a General Book.
It is admitted that there is evidence concerning the sales prospects of Making Names, but not that:
(a) the Plaintiff had high hopes and ambitions for Making Names,
(b) the Plaintiff's correspondence with Kim Pickin of Blackwell supports the Plaintiff's alleged high hopes and ambitions,
(c) the said correspondence supports the inference that the work had good sale prospects,
(d) all of the officers and referees of the Defendants, or any of them, shared the Plaintiff's alleged optimism in respect of the book's sales prospects.
It is admitted that in his letter dated 11 July 1985, Alan Ryan wrote that Making Names "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", but not that Alan Ryan predicted that Making Names would have sales prospects commensurate with those of Douglas Hofstadter's Godel, Escher, Bach and Colin Wilson's The Outsider. [Click for Ryan's letters of 11th February and 18th July 1985.]
It is admitted that the philosopher Galen Strawson 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", but not that this fully or accurately represents the gist of what was written by Galen Strawson on that occasion.
It is admitted that in his conversation with the Plaintiff on 20 May 1985, Henry Hardy stated that "I was quite gripped by the end, the last two chapters, I was reading with the kind of attention that one gives to a novel, which is not very usual with a philosophical work", but not that this fully or accurately represents the gist of what was said by Henry Hardy on that occasion.
It is admitted that in his letter of 21 May 1985, Henry Hardy stated that he hoped "that it's a terrific success", but not that Henry Hardy stated that Making Names would possibly be a film or a TV script, nor that this fully or accurately represents the gist of what was said by Henry Hardy on that occasion.
It is admitted that the initial print-run set out in the Publishing Proposal Form by Mr. Hardy was 2,000 copies of a hardback retailing in 1986 at £15 and yielding an average royalty of £1.052 per copy, but not that it is the invariable practice in the publishing trade to start with a short hardback run and "see how it goes".
It is admitted and averred that:
(i) some books are published first in hardback and then, if there is sufficient demand, in paperback;
(ii) some books are published simultaneously in hardback and in trade paperback (a paperback edition that is usually the same format as the hardback and at a higher price than a mass market paperback) or college paperback; and
(iii) some books are published in paperback only, but not that launching a book in paperback demonstrates unusual confidence in its sales prospects on the part of a publisher.
It is admitted that in his telephone conversation of 26 April 1985 with the Plaintiff, Henry Hardy stated that "a book like this, I mean I haven't really thought very hard about how one would publish it, although I think you have said have you that you thought it should be paperback straight away... it's normal when we publish a book of this kind... to publish it in hardback first... if it's a 500 page book and published in hardback... then it could be much cheaper than that if it took off and went into paperback," but not that this fully or accurately represents the gist of what was said by Henry Hardy on this occasion.
It is admitted that in his conversation on 20 May 1985, Henry Hardy stated "that again depends on whether we do it in hardback only or in hardback and in paperback. I am still wavering on that one," but not that:
(a) pages 11 to 13 of "AM8" contain the full terms and effect of the conversations of 18 July and 19 July 1985 between Henry Hardy and the Plaintiff;
(b) Henry Hardy planned to switch the specifications to include paperback production after approval at the editorial meeting of 17 July;
(c) Henry Hardy suggested a paperback price of £7.95 or £8.95.
It is admitted and averred that Henry Hardy stated "I suspect that at today's prices a paperback edition of your book ought to cost at the very least £4.95 and probably £5.95 and could go as high as £7.95 or £8.95. That's the sort of range I would think."
It is admitted that it was possible for the Defendants to publish the work in a form, number of copies, or at a royalty other than those set out on the publishing proposal form, but not that Henry Hardy would have had sole responsibility for a decision to change the production order set out in the publishing proposal form.
It is admitted and averred that Alan Ryan's letter of 11 May 1990 stated that "to succeed, it would always have to have been a paperback aimed at beginners", but not that this fully or accurately represents the gist of what was said by Alan Ryan on this occasion.
It is admitted that Alan Ryan was present at the Delegates meeting of 23 July 1985, but not that
(a) Making Names was formally approved at a meeting of the Delegates on 23 July 1985;
(b) the weight of evidence suggests that Making Names was formally approved at a meeting of the Delegates on 23 July 1985;
(c) the list included in the so-called "Adrasteia" package being page 6 of AM7 is confirmation that Making Names was formally approved at a meeting of the Delegates on 23 July 1985;
(d) the list which is page 6 of AM7 is authentic;
(e) the list referred to as page 6 of AM7 was included in the anonymously posted Adrasteia package.
(f) the Adrasteia package was anonymously posted.
The Defendants admit that Andrew Malcolm spoke to Mr. Sulkin on 16 October 1990, but not that the Plaintiff read out to Mr. Sulkin the contents of the various lists in the Adrasteia package.
The Defendants admit that Mr. Sulkin said that the documents which the Plaintiff described to him sounded genuine, but not that Mr. Sulkin had proper or sufficient opportunity to consider whether or not the documents were genuine.
It is admitted 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. Except as expressly admitted above, each and every assertion contained in paragraphs 4-21 of the Plaintiff's Seventh Affidavit is denied as if the same were hereinafter set out and traversed.
It is admitted that
(a) Douglas Hofstadter's Godel, Escher, Bach sold about 70,000 copies in the United States in its first six years;
(b) in paperback Godel, Escher, Bach sold at least 300,000 copies in the first six years.
2. It is admitted and averred that
(a) Colin Wilson's The Outsider earned for Colin Wilson about £20,000 in its first year in 1956;
(b) Wilson's subsequent books seldom made more than £1,000.
Go to Malcolm's response (damages): Points of Reply.
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.