Nicola Bion cross-examined, 14th March 1990

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

MISS N. C. BION - affirmed

MISS N. C. BION examined by MR WARBY

Warby: My Lord, I would ask for the same direction in relation to Miss Bion's statement, starting at page 67 of the blue bundle, that it should stand as her evidence-in-chief.

Miss Bion, there should be a blue bundle in front of you. Have you got that open at page 67?

Bion: I have.

Warby: On page 68 we see a signature. That is your signature?

Bion: Yes.

Warby: Have you read the statement?

Bion: Yes.

Warby: Is there anything you wish to add to it?

Bion: No.

Warby: May I just ask you this question. At the bottom of page 67 there is a paragraph starting:

"The Plaintiff sent in a second draft of this work"

"The author had six months to improve the work but it still was not working."

Bion: Yes, I will have a go. It is very difficult to define these things in publishing, because it is sometimes to do with the feel that you get from a book, particularly in trade publishing rather than straightforward scholarly publishing. One of the points was there was a question of length which we had discussed, and Mr Malcolm had indeed cut it down in length, but it still felt too long in some ways, that it dragged. There were passages that seemed a bit tedious. It was also linked to the style of the book, which had needed a certain amount of work to liven it up, tighten it up, and the work that he had done on it had not had that effect. So it lacked sparkle - it is difficult to describe it in a better way than that - and for a book of this sort that was aimed partly at the general public this is really an essential ingredient to make it succeed. One of the points related to style also was an apparently rather sexist attitude which came out in some of the dialogue, which had been raised before but had not been eradicated, which was also quite an important objection.

Warby: My Lord, I have no further questions.

MISS N. C. BION cross-examined by MR MALCOLM

Malcolm: Miss Bion, in paragraph 1 of your statement you say:

"At various times I have been Assistant Editor, Academic and General Division Editor and Commissioning Editor. My current position is Commissioning Editor in the Trade Reference and General Hardbacks Department."

Bion: I was an editor, which is an intermediate position between assistant editor and commissioning editor. Assistant editorial work involves putting books through the Press, which includes all the stages from signature of contract to publication. Commissioning - you know what that involves, and I was doing some commissioning alongside other editors.

Malcolm: So you were by no stretch a senior editor?

Bion: No.

Malcolm: In paragraph 2 you say:

"The memorandum of 16th July 1985 is a Delegates' Note."

Bion: No. It was drafted by Henry Hardy and then my name was put to it because at that point he was transferring to another section of the Press, and at the point at which it would have come up at a Delegates' meeting had it been presented I would have been the editor in charge of that section of the list.

Malcolm: So it was drafted by Henry Hardy?

Bion: Yes.

Malcolm: But it has your name at the bottom. You mention in paragraph 2 an internal meeting held on 17th July 1985. Were you at that meeting?

Bion: I was.

Malcolm: Could you describe what happened at that meeting, to the best of your recollection? Do you have a recollection of it?

Bion: I do, but I am afraid it is rather vague at this distance of time. The proposal was put to the meeting. I cannot remember all the people who were there; obviously Richard Charkin was, which is the central point.

Malcolm: Before you go on, can you tell us about these meetings. Were they regular weekly meetings, held at a certain time in a certain room in the Press?

Bion: Yes.

Malcolm: Can you tell us what time of day?

Bion: Around about 2.30 but I cannot be very precise as to whether it was 2.15 or 2.30 in those days, on Wednesday afternoon.

Malcolm: Wednesday afternoon, 2.30, every week?

Bion: Or 2.15, yes, every week. Occasionally they were not held, if there was a sales conference or something which meant the sales and marketing people could not be there.

Malcolm: This is perhaps something for another witness, but there are various descriptions of meetings running through these witness statements. One of the witnesses has used the phrase "Publications Committee meetings".

Bion:. Yes, that is the one.

Malcolm: Are we talking about the same thing?

Bion: An editorial meeting as well; that is the same.

Malcolm: Capital P, capital C - Publications Committee meeting?

Bion: Yes. That is officially what they are called.

Malcolm: Are those meetings minuted? Is there any documentary record of the decisions that are reached at those meetings?

Bion: The system has changed gradually through the years. There is, and I am almost certain was then, a very brief list of decisions taken, drawn up at the end of each of these meetings. So, decisions that have been taken, print runs decided on books that are coming up for publication, and publication proposal forms that have been signed, would be listed in those minutes. I believe, at the time, that that was done then as well. [Frantic semaphore from Oxford's lawyers at this point]

Malcolm: So the minutes of those meetings will record the decisions that were taken at them?

Bion: They record some of the decisions; I believe only decisions where books are accepted, so the Publishing Proposal Forms, of which this was one, would only have been listed had it been passed. There would not have been any mention if it had been deferred.

Malcolm: You say that proposals came to the meeting. In what form did they come? The editor - such as, for example, Henry Hardy - would he bring the book? Would he bring a Publishing Proposal Form?

Bion: A Publishing Proposal Form.

Malcolm: But not the book?

Bion: No.

Malcolm: Would he have brought to such a meeting the Delegates' Note that he might have in draft, for example?

Bion: He could have done, yes. I do not know.

Malcolm: That did sometimes happen?

Bion: If it happened to be in the file and if the editor takes the file, yes. But very often the editor will not even take the file, so the only documents there will be the Publishing Proposal Form.

Malcolm: Do you remember, at the meeting in question - and I gather it was a stormy one - what Mr Hardy took to the meeting in connection with my proposal Making Names?

Bion: I think he probably had some papers with him but I do not know which. I do not know whether it was the full file or not.

Malcolm: But he did not have the book?

Bion: No.

Malcolm: Might he have had the Delegates' Note?

Bion: He could have done.

Malcolm: Has any of this questioning made your memory of that meeting any the less vague? Can you recall anything now?

Bion: What in particular are you asking me to remember?

Malcolm: I am asking you to describe anything you can remember in connection with my proposal Making Names. Mr Hardy proposed it, I gather, in the form of presenting to the meeting the Publishing Proposal Form for the signature, as he had hoped, of a Mr Robin Denniston. Is that correct?

Bion: They did need to be signed, I believe, by Robin Denniston at the time, but I am not actually sure about that at this stage, whether Richard Charkin's signature was the only one that was necessary.

Malcolm: When Mr Hardy put the Publishing Proposal Form for the book forward, what happened? What did Mr Charkin say?

Lightman: Did Mr Hardy propose that the book should be published?

Bion: Yes. Editors would not take a Proposal Form to the meeting without wishing the book to be published.

Malcolm: When he put the proposal forward, what did Mr Charkin say, to the best of your recollection?

Bion: I cannot remember any of his precise wording. All I can remember is that he very much disliked the sound of the book.

Malcolm: He disliked the sound of the book?

Bion: He thought that the book, as described, would not be successful.

Malcolm: Described by what?

Bion: By Henry.

Malcolm: So the book was not there?

Bion: The typescript was not there.

Malcolm: The typescript was not there. The Publishing Proposal Form tells you nothing about the book.

Bion: The editor talks, describes it in some detail and is asked questions by the people at the meeting.

Malcolm: Mr Charkin took against it?

Bion: Yes.

Malcolm: Did he then ask Mr Hardy what stage the book had reached in the labyrinthine procedures that seem to be attached to getting approval? Do you remember any exchange - heated or otherwise - between Mr Hardy and Mr Charkin?

Bion: Again, I cannot remember any of the precise wording, but I recall that Richard Charkin did ask - or it came up in the discussion - the question about how far the work had progressed and how much of a typescript there was. Henry indicated that he had liked the book and encouraged you to continue working on it.

Malcolm: What was his answer to the question, "How much of a typescript is there?"

Bion: I cannot remember.

Malcolm: Did Mr Charkin ask Mr Hardy to produce the correspondence that had taken place between himself and myself?

Bion: I do not remember that being said explicitly at the meeting.

Malcolm: Did he ask Mr Hardy if Mr Hardy had made a commitment to me?

Bion: Not at that meeting, I do not think. I am afraid I cannot remember whether he made that specific point.

Malcolm: Can you remember anything else that transpired at that meeting?

Bion: Some doubts were expressed by some of the sales and marketing people because it is clearly a risky sort of book to publish and they were concerned about the state of the market and whether the book was good enough to be able to hold its head up. So reservation was expressed.

Malcolm: Do you remember Richard Charkin asking the question, for example, "Has the book been approved by the Delegates?"?

Bion: No.

Malcolm: Did he ask the question, "Has a Delegates' Note been drawn up for the book?"?

Bion: No.

Malcolm: So he was not interested in how far the proposal had got in the procedures. I thought you earlier said that he was.

Bion: There was no discussion about how far the book had reached in its internal procedures because those are fairly clearly understood - that you have the Publishing Proposal Form first and if that is approved the book goes to the Delegates, so there would never have been any question of the book having gone to a Delegates' meeting before it had been to the Publications Committee meeting.

Malcolm: Let me get this quite clear, Miss Bion. You just said then that no book goes to the Delegates until it has been approved at this Publications Committee meeting. Presumably the editors go with their Publishing Proposal Forms and talk about their proposals, the decisions are made - yes, this one goes forward, yes, that one does not - and then the editors go back and draft their Delegates' Notes and send them to the Delegates or to Margaret Goodall. Is that a correct scenario?

Bion: That is broadly speaking what happened, and in this case Henry had drafted a Delegates' Note in anticipation of the book being accepted and the fact that it would go to the next or to a subsequent Delegates' meeting.

Malcolm: But Richard Charkin did not know that?

Bion: Not as far as I know.

Malcolm: And he did not ask? He did not, for example, ask the question, "What stage is this at?" and then be told, for example, "Oh, well, we have sent a Delegates' Note off yesterday." I would draw your attention to the fact that this meeting took place on 17th July and the Delegates' Note is dated 16th July.

Bion: That is correct.

Malcolm: The date of posting of that Delegates' Note has been verified on oath by Mr Ivon Asquith.

Bion: Posting?

Malcolm: The date of posting.

Bion: Posting where?

Malcolm: So the meeting took place after the Delegates' note was posted.

Bion: Could you make clear what you mean by "posting"?

Malcolm: Could you?

Bion: Put into the post?

Lightman: Could you just help me on this because I am not clear in my own mind. I know a Delegates' Note was prepared. Do we know if that Delegates' Note was in fact itself sent to Delegates?

Malcolm: Ivon Asquith's second amended document list, verified by affidavit dated 3rd August 1988 - I refer you to page 14 of the yellow file - and this, I might add, my Lord, was sworn after an already quite lengthy wrangle concerning discovery of documents and the production, as a result of a Notice requiring such an affidavit to be sworn, of eight new documents, and another requirement was that Mr Asquith should list, as had been omitted in the previous list, specifically which of these documents were originals and which were copies; and at page 16, paragraph 4, typed in is the sentence:

"Of the documents in the said Schedule 2, they were last in the Defendants' possession, custody or power on their respective dates of posting."

Lightman: Perhaps we should have asked Miss Goodall whether this was one of the Notes that was indeed posted out. I believe that the list of documents indicates that that Delegates' Note was indeed sent to the Delegates by the University on 16th July.

Malcolm: That is what I inferred, my Lord.

Lightman: But the general impression I got from Miss Goodall was that that was not among the Notes that were so circulated. Maybe that was an erroneous impression on my part.

Bion: Could I add something there? I am certain that it was not posted, that is to say sent out to Delegates. The copy in the file appears to be an original, and it was drafted in advance by Henry, but because the book was not accepted at the Publications Committee meeting it was never then sent on its way to Margaret Goodall and thence to the Delegates.

Malcolm: Yes, but, Miss Bion, the Publications Committee meeting was on the day after the date of posting of that letter.

Bion: I am saying it was not posted. I am saying that it was drafted - written on the 16th, and whenever a Delegates' Note is typed out it has the date of typing on it, not the date of posting.

Malcolm: Date of typing? But Ivon Asquith under oath has verified that this was the date of posting.

Bion: That is something you must raise with him.

Lightman: I think we may have to call Mr Asquith to explain this. But certainly my understanding to date is that the general tenor of the evidence in the University is that this was a prospective Delegates' Note but not a note that actually was posted. But I agree with you that the list of documents suggests the opposite. I think we had better clear that up at an appropriate stage. I ask that Mr Asquith should stay so that this can be clarified. Mr Warby, you heard what I said?

Warby: Indeed yes, my Lord. He is here in court at the moment. Mr Malcolm wants him out again.

Malcolm: I think perhaps, under the circumstances, that would be...

Lightman: If Mr Asquith would not mind waiting outside again - I am afraid you may have to be called as a witness so I would ask you if you would assist by going outside.

Malcolm: Miss Bion, you have just said that you are certain that the Note was not sent. Is that correct? Certain?

Bion: Yes.

Malcolm: You are certain? You are certain - quite certain?

Bion: I have already said yes.

Malcolm: Has anything since 19th October last year happened to strengthen your belief in this? (Pause: Bion starts leafing through her witness statement) My question did not refer you to the witness statement. My question was has anything happened since 19th October 1989 to strengthen your belief in this?

Bion: I never had any doubt in it.

Malcolm: I would like at this point, my Lord, to read paragraph 3 of Miss Bion's statement:

"This note would not have gone to the Secretary's secretary because the book was rejected at the meeting held on 17th July."

I can only conclude from the "would not have gone", rather than from "did not go", that...

Lightman: Is that not entirely consistent with what this witness says? That it would only go to the Secretary's secretary for circulation if the book had been accepted at the meeting?

Malcolm: The point, my Lord, is that the meeting is the day after - and this is now in contention - the date of posting of the letter. If Miss Bion was certain that it did not go, she would have said "I am certain it did not go" or she would have probably said, "this Note did not go".

Lightman: I must say that that is how I read the first sentence of paragraph 3 of her statement.

Malcolm: I will continue, my Lord:

"The fact that this particular Note is a top copy indicates to me that it was not forwarded to the Secretary's secretary because I believe at that time office procedure was that the top copy was given to the Secretary's secretary."

Malcolm: Is that still your belief?

Bion: Yes.

Malcolm: So we are now to the point where what is and is not a top copy of that document is of significance, because where the top copy is tells us whether the Note was sent or not. Is that correct?

Bion: It is additional evidence.

Malcolm: Now Miss Bion, when you said that, how did you know that this particular Note is a top copy?

Bion: Because I saw it.

Malcolm: Saw what?

Bion: The Note.

Malcolm: The top copy of the Note?

Bion: The Note that I say appears to be the top copy.

Malcolm: Where did you see it?

Bion: In the office.

Malcolm: In the office of?

Bion: OUP.

Malcolm: In the office of OUP? This is 19th October last year?

Bion: We had the documents in front of us when we were drawing up the statements.

Malcolm: You were drawing up the statements? You used the pronoun "we" were drawing up the statements - in the offices of OUP. Is that correct?

Bion: Yes.

Malcolm: And you saw, before you, the top copy?

Bion: Yes.

Malcolm: My Lord, I suggest that since one of the ongoing problems over discovery was our search for the top copy, it seems prima facie that the fact that it was in the OUP offices rather than their solicitors' file is yet another lapse of discovery of documents.

Lightman: Can I just check this? We understand from this witness that the original was at the offices of OUP on 19th October 1989. Is that document available?

[EXPLANATION. The Delegates' Note, as was evident from its photocopy, had been corrected using correcting fluid (under the 'w' of 'Strawson', line 2), so the top copy of the Note, we knew, would be immediately and unmistakably identifiable. The search for its whereabouts (it finally turned up, early in 1990, in Goodall's rather than Hardy's file) would definitively settle the question of whether or not it had been sent out to the Delegates (it had). In addition there was the question (again answered yes) of whether the top copy would carry Hardy's handwritten addition "for delegates 23rd July" which Oxford had obscured from the photocopies they originally put in evidence. I finally got to inspect the top copy (+ correcting fluid and handwriting) at a hearing before Master Barratt on 20th February 1990, just three weeks before the trial. - A. M.]

Mr Shaw: My Lord, I have it here.

Lightman: Can that document be shown to the witness to see whether that is the document she is referring to. But let Mr Malcolm see it first.

[A document is passed around the court. At first, Shaw (Oxford's solicitor) produces another photocopy, without the correcting fluid, as I discover when it reaches me. I object, pass it back. Shaw then actually switches it for the true top copy which he then passes up to Lightman.]

Lightman: This is the top copy - is that correct?

Bion: Yes.

Lightman: I think that this document had better be an exhibit.

Bion: It was in the offices of OUP because the solicitors brought it in, not because it was there permanently. It was with the solicitors' file. It has always been in the file.

Lightman: Can I just have a look at the document?

[Lightman studies document, realising the significance (unmistakability) of the correcting fluid. He fixes a sticker onto it for lodging in the Court File]

I think this had better be an exhibit. I just want to make sure that we have gone through the formalities to make it an exhibit. So let us establish - that is the top copy that you saw when you swore your affidavit?

Bion: Yes.

Malcolm: My Lord, could I refer you to page 129 of the orange file. This is a letter dated 7th December 1989 [7 weeks after Bion drew up her witness statement]. As I say, the question of where the top copy was at this stage had been the subject of a Notice served on the Defendants' solicitors, which finally elicited this response:

"Thank you for your letter of 30th November 1989. We acknowledge receipt of the Notices pursuant to Order 27 rule 4 with regard to the originals of documents 19 [the Delegates' Note] and others. Neither we, nor our clients have these documents in our possession. If we are able to locate the originals by the time of trial, they will of course be produced."

Lightman: One of those documents - 19, 23, 25...

Malcolm: 19 is the document before you, my Lord.

Lightman: Is that right, Mr Warby, that this is the original document which, in this letter of 7th December, your solicitors were saying you did not have?

Warby: Yes. I think that is right. I am told that they thought it was a copy at the time.

Malcolm: My Lord, could I now ask you to look at the document that has just been produced and called the top copy. I did not have a very good look at it, but enough, I think. Firstly, I would suggest to your Lordship that the square divided box at the top righthand corner looks to me very much like the impression that would be made by a rubber stamp. Is that correct?

Bion: Yes.

Malcolm: But it is quite clear to me that it is not an original rubber stamp, it is a photocopy of a rubber stamp.

Bion: That is correct.

Malcolm: That is correct?

Bion: Yes.

Malcolm: But I thought you had just stated that this was an original document.

Bion: The typing on it was original. These documents, because we use them for all books, are photocopies of a copy that once upon a time had the original stamp on it, but had been photocopied many hundreds of times as a blank form, which is then filled in for each book.

Malcolm: I see. I now draw your Lordship's attention to the second line of the second paragraph [the corrected 'w' in 'Strawson'].

Lightman: I understand that what you are saying is that this was photocopied on to the document - was already on the document - when the typing took place. Is that right?

Bion: Yes.

Lightman: I should say that it does look to me, to the untrained eye, to be an original document, and one seems to get that from the 'Strawson', the 'w', which has the reflection of direct handwriting, when you look at the 'w'.

Malcolm: Perhaps I could have another look, my Lord.

[The switched (true top copy) document is passed to Malcolm and then back to Judge]

Lightman: I can say to you, Mr Malcolm, that I can understand why you had very serious concerns about what has happened at the meeting and concern whether this may not have been something that passed to the Delegates and may have been approved by them, having regard to the University's statement that they did not have the original and that the original - as set out in Mr Asquith's affidavit - had indeed been sent to the Delegates. But if the position is, as this witness says, that this is indeed the original and it did not pass to the Delegates, whilst you may have substantial grounds for complaint about the way this case has been handled on behalf of the University - and that may be relevant at the end of the day when we get to costs - we must deal with the case on the merits, at this stage, on the basis of the evidence as it stands.

Malcolm: Yes, my Lord. I just wanted to add, as a final document in this case - I apologise for the "Snopake" point, the correcting fluid point, because the copy I just caught a glimpse of before, I did not see with it on. But I acknowledge that this one now does have that there. I would just like you to turn to page 132 of the orange file (a subsequent letter from Oxford's solicitors dated 19 January 1990). The first sentence of paragraph 2 reads:

"With regard to our client's document 19, we can confirm that we have the original top copy of this document in our possession and it is available for your inspection."

Which means to me that this top copy was found somewhere between 7th December 1989 and 19th January 1990.

Lightman: I do not think that it means necessarily that it was found by then; it was then identified as a top copy. It does not indicate that they did not have possession of it throughout, does it?

Malcolm: I submit, my Lord, that the copy that was in the solicitors' file up to 19th January of this year - the copy which I inspected and photographed was not a top copy and that was the copy in the file at the time when Miss Bion served her witness statement.

Lightman: Mr Warby, do you agree with me that there is a ground for complaint?

Warby: It is most regrettable that there has been this confusion.

Lightman: One can well understand why the Plaintiff believed - I mean, if Mr Asquith's affidavit stands, it would be a proper inference to draw that the Delegates were sent a Note relating to the Plaintiff's book and therefore in accordance with practice one would have thought that therefore the Delegates had approved it.

Warby: My Lord, yes. The position, as I understand it, is that - and I do not want to trespass on areas of evidence; no doubt your Lordship will stop me if I do - Mr Asquith's affidavit is, in the light of Miss Bion's evidence and my instructions, incorrect, in that, on its face, it would appear to verify that this document, the Delegates' Note, was indeed posted. Now, the position is, as I understand it, that verification - if that is the true interpretation of the affidavit - was accidental; it was inadvertant. It was not intended to verify that it was sent because it has always been tbe understanding of the Defendants that it was not sent. That is the origin of the confusion.

Lightman: I follow that entirely. The only reason I am saying this is two-fold - obviously at some stage this may be relevant on questions of costs. The second matter I am concerned about is that, as we are now approaching the midday adjournment - Mr Malcolm, in the light of what we now know regarding the documentation - and obviously subject to any further cross-examination that you want of Miss Bion - you may like to consider whether you wish to review the line that you are taking in regard to what happened at the Delegates' meeting. I think that you have been under a misapprehension that this letter was indeed sent to Delegates. You were under this misapprehension because of the statements made, in Mr Asquith's affidavit, for example. If Miss Bion is right on this, then we can understand how and why that impression arose, but you may wish to reconsider whether it is necessary for you to proceed further in relation to this question, what happened at the Delegates' meeting.

Malcolm: I would accept your advice, my Lord, but...

Lightman: I am not giving you advice, because I am not allowed to give advice, but I am asking you just to think about this.

Malcolm: Before we leave that point - and I do not intend to return to it - while your orange file is open at page 132, could you just continue further down that letter and there is a remarkable paragraph 4. The first part is not so relevant:

"With regard to documents 51 and 52, we have spoken with Ms Goodall."

This is the first time that Miss Goodall has been mentioned, I think, in any letter I received from the Defendants' solicitors. She says, at the penultimate sentence:

"With regard to document 52"

and that is the Minutes of the Delegates' meeting

"Miss Goodall informs us that she has in her possession the Minute Book in which the handwritten Minutes of the Delegates' meeting held 23rd July 1985 appear."

Handwritten minutes.

Lightman: If you want to ask her whether she has that...

Malcolm:

"We enclose a photocopy of the typewritten Minutes which were taken from the handwritten notes together with a photocopy of the typewritten Agenda."

Lightman: I think that we have the evidence of Miss Goodall that she does not have the handwritten notes.

Malcolm: I think that is right, my Lord. The point I would like to suggest to you is that...

Lightman: Is it right that Miss Goodall does not have any handwritten notes, and this witness will not be able to help you on that.

Malcolm: Yes, but my point is, my Lord, that this is the first time Miss Goodall has entered the picture and has been contacted by the Defendants' solicitors. And this is the first time, in the three-year history of this litigation, that they have acknowledged, at last, possession of the original Delegates' Note, in the same letter. So I submit, my Lord, that this letter, page 132, suggests to one that the original Delegates' Note has come from Miss Goodall's office.

Lightman: We know that at one stage Miss Goodall had the original Note; we know what happened; and we know that it does not exist any more.

Malcolm: No, not the original, the Delegates' Note that has just been passed around. My point is that - the suggestion I am trying to make - is that it must have come from Miss Goodall's office. In other words, it must have been sent to her.

Lightman: As I understand it - we understood the solicitors had this in their file.

Malcolm: Up to 19th January they had only a photocopy in their file. That is acknowledged by them in their letter at page 129.

Lightman: I wonder whether you might be able to clarify this with Mr Warby and his solicitors over the adjournment. I am not clear at the moment how far exploring all this - beyond confusing everybody, and I am afraid for the moment confusing me - is going to get us with what is really at issue in the action. As I indicated to you, I do think that Mr Asquith's affidavit was misleading and could well lead you to believe that this particular document referred to did go to the Delegates and may have resulted in a particular decision by them. I think we will move on to lunch now. Mr Warby, could you see whether some of these matters can be cleared up, because again I am concerned on time.

Court rose for the short adjournment at 13.05 and resumed at 14.05

Lightman: Have the matters been resolved in any way of all these documents?

Warby: My Lord, I am not sure they have. I have tried to explain to Mr Malcolm the position. I am not sure that he has either understood it or accepted it. [Warby began his lunchtime 'explanation' to me with the words: "I don't believe or understand this myself and I don't expect you to, but..." - A. M.]

Lightman: That is a matter between the two of you. Mr Malcolm will you continue your cross-examination?

Malcolm: Miss Bion, just finally, would you please open the red file, page 122. This is the letter that you wrote to me on 9th May 1986, turning down the revised draft of the work, which you note at the beginning of paragraph 2, was "undoubtedly an improvement". You based that judgment on a thorough reading of the text, did you?

Bion: Yes.

Malcolm: I should just like to draw the Court's attention to the first paragraph

"I have now had the reports on your revised typescript and discussed them with colleagues."

I do not think I will read the next sentence. But to my knowledge, despite repeated requests, not a single report on the revised draft has been disclosed by the Defendants.

Lightman: Were there any such reports?

Bion: There was one written report in the form of a very brief letter to me from Alan Ryan.

Malcolm: I suggest you turn back to page 121, my Lord. I think one only needs to read the first sentence and the last to discover what this is.

"I think something v. near the truth is the way. Can you say we have read it, like it as before, but... etc."

Final sentence:

"Will that do?"

I submit, my Lord, that it will not do.

Lightman: The position is that Mr Ryan took a quite different view on the second reading than he took on the first?

Bion: Yes. Certainly considerably less positive.

Malcolm: Yet you have acknowledged that it was undoubtedly an improvement.

Bion: An improvement. I did not think it was...

Malcolm: Had you read the first draft?

Bion: I had read parts of it; not every word.

Malcolm: In paragraph 4 of your witness statement I think you say:

"A number of my colleagues also glanced at it."

Bion: Yes.

Malcolm: You go on to say:

"I based that decision..."

the decision to reject it

"...on both my own and Alan Ryan's opinions."

Malcolm: I do not know if your Lordship still has the second draft on the bench in front of you, the hard-covered one.

Lightman: Yes.

Malcolm: If you would just care to hold it up. Miss Bion, do you recognise that copy?

Bion: Yes. It looks familiar.

Malcolm: That was the copy that was sent to you in February of that year, and which was said by you to have been read by you and Alan Ryan and, as I understood, Alan Ryan took it to Canada; and others glanced at it, and it has finally, after three years, a few months ago been sent back to me. I am no forensic expert but I suggest your Lordship just takes a look at that copy, and just wonders whether anyone has ever actually opened it. [It is pristine.]

Lightman: I had a look at it previously.

Malcolm: No further questions.

MISS N. C. BION re-examined by MR WARBY

Warby: Miss Bion, the document that was handed up earlier, the Delegates' Note, which you told us was the top copy - can you confirm whether that is the document that you were looking at when you made your statement?

Bion: Yes.

Warby: What would have happened to the top copy if the book had been sent forward to a Delegates' meeting?

Bion: Procedures have changed over the years, so I cannot say with any total certainty whether photocopies were taken by the secretary to the Secretary, or whether the photocopies were taken by the editor, but my recollection is that at that time the original copies were sent to Margaret Goodall, and she did the photocopying. I cannot remember whether she kept the originals and we had photocopies back for the file or not.

Lightman: When you say original copies were sent to Miss Goodall, you mean the originals were sent to Miss Goodall?

Bion: The originals were sent. I believe the originals were retained but, as I say, I am afraid...

Warby: It was suggested by Mr Malcolm, although it was not directly put to you, that Mr Ryan had never read the second draft of Making Names. From your own knowledge are you able to say whether Mr Ryan had a copy of the second draft?

Bion: Yes. I sent it to him, we spoke about it on the phone as well as corresponding in writing.

Warby: Do you have any reason to doubt that Mr Ryan had read it?

Bion: No.

Warby: I do not know whether you still have open in front of you page 122 of the red bundle, which is your letter to Mr Malcolm. How does what you said there compare with your opinion of Mr Malcolm's second draft?

Bion: But this is my opinion of his second draft. I am sorry - have I misunderstood you?

Warby: No.

Bion: In my letter of 9th May I am telling him what my opinion of the second draft was.

Warby: Thank you. I have no further questions, my Lord.

Bion: My Lord, am I able to follow up a point that Mr Malcolm made, or not?

Lightman: Yes, if you wish to.

Bion: You seemed to imply that I was lying when you said that you thought this second draft had not been opened. Is that correct?

Lightman: Do not ask a question. Just give your evidence as to what you want to say. You are saying in case the suggestion is made that you are lying...

Bion: Yes. I take exception to it.

Lightman: You take exception to it. Why?

Bion: Because I am telling the truth.

Lightman: That it was indeed opened and read?

Bion: It was opened and read as I have said.

Witness released

Return to the top of this file.

Proceed to the courtroom testimony of Ivon Asquith.

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.