Malcolm v. Oxford: Witness Henry Hardy (original) (raw)
Malcolm vs. Oxford University, 1986 Chancery Division Ch M. 7710
RE-RE-RE-AMENDED WITNESS STATEMENT OF HENRY HARDY
First version of statement served in exchange on 19th October 1989, amended version served on 13th November 1989, re-amended version served at trial on 16th February 1990, further re-re-amended version served during trial (added paragraph 13a in maroon)
The memory man at the Akmé Ball, June 2002
1. My name is Henry Robert Dugdale Hardy. I work at Oxford University Press, Walton Street, Oxford, OX2 6DP. I joined Oxford University Press in 1977 as a Paperbacks Editor and moved within Oxford University Press until I reached my present position as Senior Editor, Political and Social Studies Academic Division.
2. At the time the book was submitted to Oxford University Press I was a Senior Editor in the General Books Department. I was responsible for commissioning general books. Commissioning involves both seeking out authors to write a book and looking at unsolicited work which has been submitted to Oxford University Press, but it does not involve any final decision with regard to publication of a book.
3. The usual procedure followed when a new book is to be considered by Oxford University Press is as follows:
4. The first draft or synopsis and list of chapters would be considered by a Senior Editor. That Editor would form a view as to whether or not the book would be suitable for publication and the first draft or synopsis and list of chapters would then be passed onto a reader for an expert opinion. At the time that 'Making Names' was submitted, this was an optional step in the consideration for publication, but it was done in this instance. The reader gives his advice to the Editor and the book is then brought up at an internal editorial meeting. This meeting is attended by editors and the Oxford Publisher.
5. A Publishing Proposal Form would be filled in for any book which an editor is proposing to present to that meeting for consideration. The book would then be discussed at that internal meeting and if it was decided that the book might be published, the Publishing Proposal Form must be signed by both the Oxford Publisher and the Managing Editor.
Page 2 (58)
6. If the Publishing Proposal Form is signed by both of these people, the book would then be submitted to the Delegates of Oxford University Press for final approval. This is done through the device of Delegates' Notes, which give a brief description of a book and the opinions of any readers. If the Delegates accept it, then a written contract would be delivered to the author together with a request for detailed information on the author in the form of an Author's Publicity Form.
7. I first knew of 'Making Names' when it was passed on to me by Angela Blackburn, an editor with the responsibility for philosophy books. She passed it on to me as she was not interested in it for her own list and thought the General Books Division may be interested in it.
8. I looked at the introductory material and was interested enough to write to Mr Malcolm (in a letter dated 9 October 1985), asking him to forward the typescript. When the typescript arrived, I passed it to Alan Ryan, a reader, in order to get his opinion.
9. Alan gave me his opinion of the book and I indicated to Mr Malcolm (in a letter dated 18 February 1985) that I would like to read the transcript myself. After I read it, I wrote to Mr Malcolm indicating that Oxford University Press might want to publish the book, but that it would need revision before anything was decided. [oddly, Hardy omits any mention of his letter of 18th March - A.M.]
10. I received a reply from Mr Malcolm (dated 24 March 1985) indicating that he was prepared to revise the typescript, but that he wanted a commitment from a publisher before doing so.
11. I have read the transcript of the telephone conversation I had with Mr Malcolm on 26 April 1985. I recall this conversation.
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12. The overall tone of the conversation is that I was trying to make Mr Malcolm accept that he needed to revise the transcript before Oxford University Press considered publishing it. I did, however, late in the conversation, adopt a modified position that if Mr Malcolm could do a plan of revision, rather than revising the whole first draft, then Oxford University Press could consider that plan and decide whether or not it could give a commitment.
13. I have read the transcript of the telephone conversation I had with Mr Malcolm on 20 May 1985. I recall this conversation. Reading the transcript, I believe that it is not a complete transcript of our conversation. I believe that there are parts of our conversation which are not included in the transcript. Specifically, I believe I made it quite clear to Mr Malcolm that there would still need to be an internal editorial meeting, and that it would then need to go to the Delegates for final approval. I did not give a firm commitment to publish in this conversation and in fact, used the phrase 'and then we can talk about some sort of contract.'
Page 3a (58A)
DRAFT AMENDMENT TO STATEMENT OF HENRY HARDY (final version of several), served in court 14th March 1990
Add after the second sentence of paragraph 13:
13a. "I have a clear recollection of an exchange on the telephone with Mr Malcolm in which he asked me whether he could now make arrangements preparatory to undertaking his revisions. I answered that I did not anticipate any problems, but that strictly speaking approval was needed both from an internal editorial meeting and from the Delegates, and that if he wanted to be absolutely in the clear, he would wait until these stages had been gone through. If he chose to make arrangements before that, it would be at his own risk - a risk which I admittedly assessed as small, but nevertheless real. I have no clear recollection of exactly when this exchange took place, but it seems most likely to have been towards the end of the conversation of 20th May 1985, or perhaps in another telephone conversation on or about that date, the precise date and time of which I cannot now recall."
14. Following that conversation, I wrote to Mr Malcolm (in a letter dated 21 May 1985) asking him to fill in an Author's Publicity Form as I was thinking about drafting a Delegates' Note for the book, in case it was approved at the internal Publications Committee Meeting. This Form is normally forwarded after the Delegates have given final approval for a book but I think I was feeling positive, and perhaps excited about the book, and so wanted to get this information quickly.
15. The words used in this letter must, I believe, be read in the context of my conversation of 20 May 1985 with Mr Malcolm. I believe that I told him in that conversation that there were still procedures to go through before a final decision could be made and so comments such as 'I am pleased we are going to do your book' were made on the basis that he understood that that was still to happen.
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16. I asked my assistant, Angus Phillips, to draw up the Publishing Proposal Form for the book. It is standard procedure for this Form to be filled in for every book which is to be discussed at the editorial meeting. If it was decided at that meeting that the book should go to the Delegates, it would have been signed by the Managing Editor and the Publisher.
17. At the time of the meeting at which 'Making Names' was discussed on 17 July 1985, Robin Denniston was the Oxford Publisher and Will Sulkin was the Managing Editor - General Books Division. Robin Denniston was not at the meeting and Richard Charkin attended in his stead. I cannot remember if Will Sulkin was there or not.
l8. I believe that at that meeting, on 17 July 1985 Richard Charkin indicated that another opinion of the book would be needed before a decision could be made.
19. I caused the book to be sent to Galen Strawson who read the transcript and sent it back with his report. I believe I showed his report to Richard Charkin alone, rather than taking it to another editorial meeting. I believe he indicated that the book would not be published in its present form. I know that the Publishing Proposal Form was not signed and that the book could not, therefore, have gone to the Delegates.
20. I received a letter from Mr Malcolm (dated 22 July l985), in which he seemed to accept that Oxford University Press would not publish 'Making Names'. I wrote to Mr Malcolm on 25 July 1985, in order to indicate that it would not be a waste of his time to submit a revised transcript to Oxford University Press. I was attempting to dispel the pessimistic tone of the letter sent by Richard Charkin to Mr Malcolm (dated 18 July 1985).
Page 5 (61)
21. Following my letter of 25 July 1985, Mr Malcolm rang me and took up my offer to him to guide him with regard to revisions of the typescript, with a view to re-submitting the typescript. I wrote to Mr Malcolm on 30 July 1985 and that letter outlines the suggested revisions.
22. I received a letter from Mr Malcolm (dated 16 October 1985) enclosing a copy of two revised chapters. By this time, I was no longer Senior Editor - General Books Division and so no longer had any input to any decisions regarding publications of General Books. Nonetheless, I read the revised chapters and wrote again to Mr Malcolm (in a letter dated 8 November 1985), indicating that my opinion had no status.
23. Mr Malcolm again wrote (in a letter dated 21 February 1986), enclosing the second draft of the book. I believe that the General Books Division decided that Oxford University Press would not publish the book even in its second draft form, so it did not proceed to the Delegates for approval.
24. I was the subject of disciplinary action, instigated by Richard Charkin. The disciplinary proceedings consisted of a Stage 3 written warning, but my appeal against this warning was successful and so the warning was withdrawn. Disciplinary action at Oxford University Press proceeds through three stages, the final being the written warning. I believe that Richard Charkin proceeded straight to the third stage, without giving me a verbal warning. I was astonished at what Richard Charkin had done and wrote a letter to Richard Charkin (dated 19 July 1985). That letter does not accurately reflect my role with regard to Mr Malcolm. I was so shocked with the disciplinary action that I forgot to indicate, in that letter, that I had told Mr Malcolm that the book would not only need to be revised, but would also have to proceed through the internal editorial meeting and the Delegates Meeting. [!!]
Page 6 (62)
25. The royalty figure of £2,104 was worked out on the Publishing Proposal Form, using a standard formula. The figures were merely proposals and would have been considered more fully had the book proceeded to the Delegates for acceptance. They were based on Mr Malcolm receiving an average flat royalty of 11.5 per cent of the net receipts. The amount of net receipts is the money received from Oxford University Press's book seller customers. The proposed run for this book was 2,000 with its retail price being £15. An average discount to the book sellers of 39 per cent would have applied, making the cost to the book sellers (the net line value) £9.15, so the net receipts would have been £18,300. The royalty figure is therefore 11.5 per cent of £18,300 i.e. £2,104.
26. It is possible that, had Oxford University Press decided to publish this book, it could have done so in a form, number of copies or at a royalty other than those included on the Publishing Proposal Form, but I cannot say what those details would have been. A Publishing Proposal Form is an interim document, used at the internal editorial meeting to indicate the costing of a book. Once the Delegates decide to publish a book, there is another internal meeting at which another form (the Published Price: New Book/Reprint form) is filled out, showing the final details for the publication of the book and it may be that these details would be different from those contained in the Publishing Proposal Form.
DATED the 19th day of October 1989
Henry Robert Dugdale Hardy
Now go to Henry Hardy's cross-examination in court, 14th March 1990
or to the next item in the Witnesses (yellow, blue) files.
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: Andrew Malcolm, 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 Appeal Court Judgment, to the Damages assessment, to the Settlement agreement.
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