Mr ANDREW MALCOLM, the PLAINTIFF, in person.
Mr MARK WARBY (Instructed by Dallas Brett, Pembroke House, Pembroke Street, Oxford OX1 1BL) appeared for the DEFENDANTS.
Official transcription by Palantype Ltd, 2 Frith Road, Croydon CR0 1TA
MR I. S. ASQUITH - affirmed
MR I. S. ASQUITH examined by MR WARBY
Warby: Mr Asquith, could you take the yellow bundle in front of you and turn to page 14. Do you recognise that document?
Asquith: Yes.
Warby: When you swore that affidavit, did you believe the statements made in it to be true?
Asquith: I did.
Warby: Would you now look at page 20. Do you recognise that document?
Asquith: I do.
Warby: Have you read it recently?
Asquith: Yes.
Warby: When you made that affidavit, did you believe the statements in it to be true?
Asquith: I did.
Warby: Perhaps I could take you back to page 17. You will see that is the first page of the list of documents which you verified on 3 August 1988.
Asquith: Yes.
Warby: Do you see item 19?
Asquith: Yes.
Warby: Copy letter to all Delegates from Nicola Bion. Then if you would look at page 19 you will see Schedule 2, which as you can see from the heading is a list of documents which had been but, at the date of service of the list, were not in the possession, custody or power of the party in question. That refers to originals of copy letters referred to in Schedule 1, part 1.
Asquith: Yes.
Warby: So do you understand that that suggests that the document listed at 19 on page 17 [the Delegates' Note], the original of that copy is a document which was but is, at the date of this list, no longer in the Defendants' possession? Do you follow that?
Asquith: I would not know whether the original was in the Defendants' possession, because that particular Note to the Delegates was not sent to the Delegates.
Lightman: How do you know it was not sent to the Delegates?
Asquith: It was turned down at the editorial meeting.
Lightman: How do you know?
Asquith: How do I know it was turned down at the editorial meeting? By all the accounts and the...
Lightman: You have no direct knowledge?
Asquith: I was not at the editorial meeting.
Lightman: I see. You are really only concerned to answer questions in relation to matters within your direct personal knowledge. But really the question here is, under 19 you see there is a reference to "Copy letter to all Delegates from Nicola Bion". What you are really being asked there is why copy letter and not original letter because, as I understand the position, the original always remained in the possession of the University Press.
Asquith: That would be correct, my Lord, yes.
Lightman: What you are really being asked is why did you say you had a copy, as opposed to the original. Is that right, Mr Warby?
Warby: Yes, my Lord. I am grateful for that assistance.
Asquith: I do not know why, my Lord, it would be a copy rather than the original.
Lightman: Was this document in fact prepared by you or was it prepared by your solicitors and put before you at the time that you swore the affidavit?
Asquith: It was prepared by my solicitors.
Lightman: Did you go through the schedule with them?
Asquith: Yes, I did.
Lightman: Did you go through item 19 and see it referred to "Copy letter to all Delegates from Nicola Bion"?
Asquith: I am afraid, my Lord, I was not distinguishing clearly between what was a copy and what was an original at the time.
Warby: Mr Asquith, I was referring you to page 19 of Schedule 2, and I had just mentioned to you that that suggests that the document at 19, the original of that document, had passed out of the Possession of the Defendants. Do you understand that?
Asquith: Yes, or that we could not find it - yes.
Warby: If you go back to page 16 at paragraph 4, there is a statement which you were verifying:
"Of the documents in the said Schedule 2, they were last in the Defendants' possession, custody or power on their respective dates of posting."
At the time you swore the affidavit, did you have any knowledge of your own as to whether that Delegates' Note referred to at 19 had or had not been posted?
Asquith: My understanding was that it had not been posted.
Warby: So what would you say as to the accuracy of the statement at paragraph 4 on page 16?
Asquith: It depends. If the date on a document is meant to be the date of posting, then the statement is not accurate. But the convention is that the date on a Delegates' Note is either the date on which it is typed or the date of the Delegates' meeting. It might in fact be the date on which it was dictated or something like that.
Warby: Did you believe at the time you swore this affidavit - that is to say, 3rd August 1988 - that the Delegates' Note of 16th July 1985 had been posted?
Asquith: No, I did not.
Warby: My Lord, I have no further questions.
MR ASQUITH cross-examined by MR MALCOLM
Malcolm: Mr Asquith, you said just now that if it had a date or dates on this document it might have been the date of dictation or the date of the Delegates' meeting or the date on which it was posted. I think you said earlier that you were not distinguishing terribly carefully between what were copies and what were photocopies. Correct?
Asquith: Between what were originals and what were photocopies.
Malcolm: Yes, I beg your pardon. Yet I thought that was part of the purpose of swearing an affidavit to a list. We had actually requested that the distinction be made. As you see, it is down the lefthand side of the list.
I suggest, my Lord, at this point - I do not know if it is still available - that the original Delegates' Note which was passed around earlier with the correcting fluid on it should be shown to Mr Asquith.
Lightman: I think it is actually the original note, is it not?
Malcolm: This is the original note - that seems to have been established.
Malcolm: Was that the document you saw in the file?
Asquith: That is correct.
Malcolm: When I last saw that document I saw two dates on it: one at the top left, typed, and one at the bottom right, handwritten. What do you deduce from those two dates?
Asquith: The top righthand typed?
Malcolm: No. The top lefthand - 16th July 1985 - and the bottom right - 23rd July.
Asquith: Yes.
Malcolm: You said earlier that there might be two dates on it and one might be the date of the Delegates' meeting.
Asquith: Yes.
Malcolm: I suggest that if you are just looking at that document in a file, that might suggest to you that it was an Agenda paper before a Delegates' meeting held on 23rd July 1985.
Asquith: It was clearly intended to be sent to the Delegates for the meeting of 23rd July...
Malcolm: I have to interrupt you, Mr Asquith. You are in an office, looking at a file of papers that had been floating around some years before. You have to look at that paper and decide whether it leads you to suppose, for example, that there might be further documents to be discovered. You might, for example, be led to ask the question, was this paper put before the Delegates on 23rd July 1985 or not? Did you make those inquiries?
Asquith: Oh yes but, as I have said...
Malcolm: "Oh yes" what? What inquiries did you make when you saw that paper?
Asquith: I was told that the proposal was rejected at the editorial meeting on 17th July.
Malcolm: You were told?
Asquith: Well, I have also seen letters confirming that, and that is not disputed by anyone, so far as I know.
Malcolm: What letters?
Asquith: The letters involved in the disciplinary proceedings that followed.
Malcolm: There is nothing in any of the documents in the file that I have got that relate to that question at all. Can you specify a document?
Asquith: Not offhand, I cannot, no. But no one has raised with me the doubt as to whether or not that proposal was rejected at the editorial meeting of Wednesday 17th July. Therefore I have not attempted to establish documentary evidence that it was.
Malcolm: All right. Could I please move you on to page 1 of the orange file. This relates to an order of Master Barratt at page 38 of the black file, dated 8th August 1988. My affidavit at page 1 of the orange file was served in support of a summons to depose by their proper officer or officers as to the existence of certain apparently still missing documents. If I can refer you to paragraph 4, you see I state there that Mr Hardy, in his telephone call to me of 20th May 1985, at an early stage in this conversation Mr Hardy stated:
"I have got various points written down here, starting right at the top."
Lightman: Mr Malcolm, can you help me. Is this going to be a matter that will help me decide this action, to go into all these matters of discovery again? I am not quite sure what issue you are directing this cross-examination at. I am concerned to keep ourselves to what is relevant, and I cannot at the moment see how this is going to help me at all. What issue is this directed to? What point are you seeking to make?
Malcolm: I am seeking to demonstrate various ways in which I was misled during this ongoing wrangle about discovery.
Lightman: I am afraid that is not a matter which is appropriate for us to pursue.
Malcolm: If you feel that way, my Lord, I will...
Lightman: We are here to decide issues on the pleadings as to whether or not there is a contract between you and the University. It is not part of my function, nor do I have any jurisdiction to give any relief, if there has been some wrangling earlier over discovery. Certain points on discovery which we have dealt with and I have referred to may be relevant on costs at the end of the day, but I do not want to extend the costs of these proceedings by going outside what is really of assistance in trying this case.
Malcolm: Neither do I, my Lord. No further questions.
No re-examination.
Witness released.
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.