Malcolm cross-examined, 13/3/1990 (original) (raw)
MALCOLM vs. THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD
IN THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
Case No. CH1986 M 7710
Andrew Malcolm cross-examined, 13th March 1990
The Royal Courts of Justice, before MR G. LIGHTMAN QC
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
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(Court resumed at 2 pm)
MR MALCOLM - affirmed
Examined by JUDGE LIGHTMAN
Lightman: Mr Malcolm, your statement will be taken as your evidence. If there are any particular matters in relation to the evidence statements served on behalf of the Defendants that you wish to deal with, feel free to deal with it. Otherwise you may leave it to cross-examination. No doubt Mr Warby will put his case and you can present your case in relation to it. One area where I would find some help from you is in relation to the addition made today to the statement of Mr Hardy. You were given an additional paper, page 48A.
Malcolm: I think it is 58A, my Lord.
Lightman: Thank you - 58A. It would help me if you would just read 58A to yourself and then tell me if you have any comments on it.
Malcolm: The only comment, my Lord, is that that exchange did not take place, then or ever. There were no other telephone conversations about that time that I did not record.
Lightman: Following that I want to ask you, if I may, again to get the matter clear. It relates to your transcript of the telephone conversation of 26th April - that is in the red bundle at page 27. Is that a transcription of the entire telephone conversation?
Malcolm: Yes, save I think there was a break in it while the tape was turned, and I think that is indicated. Or perhaps not indicated, but at some time the tape was turned; I think it is probably between pp. 29 and 30. No, it is marked: page 29, line 102: "the tape ends, side 2 continues..."
Lightman: So there was a break there.
Malcolm: My answering machine, when it gets to the end of the tape, there is a tone to tell you that it has got to be turned.
Lightman: So line 102...
Malcolm: Line 102, there is a break. The tone warns you of that, so I turned the tape over.
Lightman: How much would have been missing?
Malcolm: At the most 5 to 10 seconds, I should think. I do not know how long it takes to turn a tape.
Lightman: Can you recall what was said during that 5 to 10 second gap?
Malcolm: I cannot, my Lord, but I can certainly recall that nothing was said of any kind to do with special conditions or Delegate approval or anything like that. I think - though I have not recently re-read it - but it looks to me like we were actually talking about the same subject before and after the break.
Lightman: Nothing was said about a Delegates' meeting or anything like that?
Malcolm: Nothing whatsoever. The only reference that Mr Hardy made to Delegates was where he explained their role. I think the fact that he could not have mentioned Delegates in that break is proven by the fact that at line 173 on page 31, where he introduced it, that is where he first mentioned the Delegates for the first time, or slightly earlier: "Alan Ryan, he is a Delegate." That was the first time I had ever heard the word used. I had no idea at all about the structure of the Press.
Lightman: Can we look for a moment at the transcript of 20th May. Is that a complete transcript of the telephone conversation?
Malcolm: Again, my Lord, there was a break where the tape was turned, very briefly, and I can tell you where that is because it is marked. It was when we were discussing the matter of the sub-title. I think it was about line 70, when I referred to my little slogan. If your Lordship has read the introduction to the book that I sent, in which I ended the first page with a slogan "Speculative metaphysics lives!" - it was at that point, and I began immediately to turn the tape over.
Lightman: How long was the break?
Malcolm: Five seconds at the most. I think again Mr Hardy is still talking about the sub-title. Yes, he carries on about the sub-title.
Lightman: [to Mr Warby] Those are the new points raised which I wanted to clarify my mind on. As Mr Malcolm is not represented I thought it would be helpful that I should put them to him.
Lightman: [to Mr Malcolm] Is there anything else you want to say before you are cross-examined? What happens is that the University will now put their case to you and you will be able to put your side of the case on the facts as to what happened and answer questions, from your recollection.
Malcolm: Yes. I am not quite clear what sort of things...
Lightman: What you are saying here, you are giving evidence as to fact under oath, liable for perjury if you lie. You are not addressing me for argument as to why you should succeed in this. What you are going to be questioned about here are matters of fact and matters which you set out in your evidence.
Malcolm: Yes, my Lord. The only thing I would say while we are on the question of tapes is - this may not be the right time to make this point - that from very early on after the second rejection of May 1986, a long time prior to the initiation of proceedings and the serving of writs and all that, I made it clear - I am trying to find the letter - that I had taken recordings of the conversations. I did not hide from the point that the whole relationship had fouled up, as it evidently had. I wrote a letter to Robin Denniston, who is one of the minor figures in the drama, at page 125 of the red file, in which I set out the story, the bare bones of it, absolutely accurately. I quoted various of the most telling remarks, as I thought. I am now on pages 125 and 126. Incidentally, my Lord, in this letter are various quotations from subsequent conversations with Mr Hardy, for which I claim privilege as they apparently do not appear in the two transcripts, but I...
Lightman: What do you say do not appear in the transcript?
Malcolm: After the breach of contract on 18th July, actually the first of the conversations took place on 18th July, I had, as is set out in my document list, Mr Hardy and I - or Mr Hardy telephoned me on several occasions and discussed all sorts of things. We were discussing to start with the possibility of getting it published elsewhere. I think I have referred to this, set it out in my witness statement. But in this letter to Mr Denniston there are various quotations from some of those conversations. There is one here that I have lit upon where he says that on 18th July, where he actually told me what had happened, or what he thought was about to happen - he had not seen Mr Charkin's letter to me - he said:
"I made a commitment to you which I think we should honour collectively."
which I think is the heart of the whole thing. As you see, I reported that remark to Mr Denniston and I ended that paragraph - the penultimate paragraph on page 126:
"I assume that Mr Hardy will fully corroborate this story, but should any doubts arise over detail, I will be happy to produce the complete and accurate record I have kept of our five-plus hours of telephone conversations."
So they knew. I think the next one is page 130... No, I think the next one is Mr White's letter before action at page 132, where at paragraph 4 he says:
"I hope to hear from you therefore within 14 days of today that the Press accepts and will honour Mr Hardy's original tape-recorded oral commitment on behalf of the Press to publish this work."
That was August 1986, so they had every warning you could give them. I was not hiding the tapes, in other words.
MALCOLM CROSS-EXAMINED BY MR WARBY
Warby: Mr Malcolm, could I ask you to go to page 4 of the blue bundle, paragraph 9 of your statement, you are dealing there with the way in which you recorded those telephone conversations. At the end of that paragraph we find this:
"I found the Answerphone a convenient way of keeping notes of what was said. I never dreamt then that the tapes would later acquire legal significance."
What I would like to ask you is about the precise method you used for recording the conversations. Is this right, that when Mr Hardy telephoned you would pick up the receiver and see who it was?
Malcolm: Yes.
Warby: And when you realised it was Mr Hardy you would press the record button on your Answerphone?
Malcolm: That is right. The particular model of Answerphone I have, it is not pressing a heavy, cumbersome button; it is a little tiny push thing.
Warby: You have just been looking at the transcript of the conversations with my Lord. Would you agree with this, that it is apparent from the transcripts that there were at least some introductory words to each conversation that were not recorded?
Malcolm: Yes, I sometimes did not get the beginning of the conversation.
Warby: Then in the middle of the conversation - at least the conversation the length of the two that you have just been looking at, of 26th April and 20th May it was necessary to turn over the tape?
Malcolm: That is right.
Warby: How exactly does that work? Is there an eject button on the machine?
Malcolm: It gets to the end of the tape, and when it does so it emits a tone that you can hear that the tape finishes and then you just turn the tape round.
Warby: You have to eject the tape, take it out with one hand while you are holding the telephone in the other...
Malcolm: Yes.
Warby: ...and then turn it over and put it back in?
Malcolm: Yes.
Warby: Then you have to press the record button again?
Malcolm: Yes.
Warby: So it may be longer than five or ten seconds?
Malcolm: I do not think so. Could I just say that I did offer to have the original tapes inspected, and the Answerphone. I repeated the offer several times, but the question of accuracy was never raised. I offered to bring the machine to court, but it was not taken up.
Warby: Can you remember how many minutes conversation each side of the tape can record?
Malcolm: The tapes were different lengths; they were odd tapes that I had.
Warby: I think they are fairly short in time, are they not? I think we can see that, from the transcripts, that in each case you had to turn over the tape.
Malcolm: That may have been because the tape was already halfway through.
Warby: I see. You may already have had some other conversation recorded on it?
Malcolm: Yes. Like the 20th May conversation: the original tape of that has all sorts of other bits and pieces of conversation on it. I can just perhaps pre-empt the question - once, especially once things had gone wrong and I was recording the conversations that took place, from 18th July 1985 - once the whole deal had been loused up and I was contemplating taking legal action, and therefore taping with a view to taking legal action, contemplating legal action, I was then making sure that the tapes were tapes that were specially set aside.
Warby: I follow. But at this stage, in April and May 1985, you were just using a tape which was on the machine?
Malcolm: Which happened to be on the machine, yes.
Warby: Would it be possible then that where the transcript ends the tape in fact has run out on the second side? Do you follow what I am suggesting? We have the first part of the conversation and then you have told us...
Malcolm: What page are you talking about?
Warby: Let us take an example. The conversation of 26th April, at page 27 of the red bundle. We have got two pages and a half of transcript until we get to line 102, where you have inserted "Tape ends. Side 2 continues."
Malcolm: That is right.
Warby: The tape has run out there and you have had to turn it over.
Malcolm: Yes.
Warby: Then we get another six and a half or six and three-quarter pages to the end of the transcript.
Malcolm: Yes.
Warby: Is it possible that, in relation to this conversation, the tape ran out at the end of the transcript, and that more words were spoken after the end of the transcript?
Malcolm: After the words "Bye bye" and "Cheerio"?!?
Warby: Yes.
Malcolm: No. The tape did not run out.
Warby: In relation to the conversation of 20th May, the transcript which starts at page 37, you have told us that the first side of the tape ran out at about line 70 on page 38. Again, after that, we have six or seven pages of further transcript, and it ends with the words "Okay, thanks very much".
Malcolm: That is right. The tape did not run out. I think that one, in fact, was not just turning a tape over; I think that was putting a different tape in. Probably the second half of that 20th May conversation is on a C120 cassette, which lasts an hour a side. I had the tapes here yesterday. You could have seen them. I thought the tape authenticity point had been resolved, so I left them at home today. I did have them in court yesterday.
Lightman: You could bring them tomorrow?
Malcolm: I could certainly bring them tomorrow.
Lightman: Perhaps you would bring them tomorrow.
Malcolm: I will bring them tomorrow, but my Answerphone I have left in Brighton. I do have a machine that can play them, but not the original Answerphone.
Warby: If it is a C120 tape it will operate on a machine like this, will it?
Malcolm: It would, but it depends on the head. It looks like a mono machine. The Answerphone machine is a mono machine.
Warby: If you could bring the tapes tomorrow we can see about that. I am just interested to see that on page B44 - the red file page 44 - there are no words such as the ones we saw at the end of the previous conversation - "Bye bye", "Cheerio" and so on. The conversation seems to end like that - "Okay, thanks very much."
Malcolm: I think, if you listen to the original tapes, every time the conversation ends you can hear the click as the receiver is put down. I do not think there is any doubt about it.
Warby: So is it possible that there were further words in that conversation?
Malcolm: No - with the caveat that, as was explained, this transcript, on the instructions of Master Barratt - you notice that the original typing of the earlier conversations was on an old typewriter which was my own typewriter at the time, and the original version of 20th May was typed in that same way. You may remember at the first hearing before Master Barratt, I think it was, that we quoted the conversation, the relevant part, in full in the provisional Statement of Claim, and Master Barratt instructed us that there were a lot of "ums" and "ers" and "oh goods" and that sort of thing that was included in the full transcript, and he ordered that that should be cleaned up - I think you asked for that yourself, I seem to recall - actually commenting and laughing at the "ers" and "ums", some of which I think were quite telling. Anyway, this is the sort of cleaned up version.
Warby: It is a cleaned up version without the...
Malcolm: Cleaned up in no important respect, I mean no material difference.
Warby: You have read Mr Hardy's amendment to his statement which appears at page 58A.
Malcolm: Yes.
Warby: His Lordship asked you about that. You see that his recollection is that he suggested to you during that conversation of 20th May - he made clear to you that it was necessary to have an internal editorial meeting and to have the approval of the Delegates before a contract could be issued. Is it not right that that was said during that conversation?
Malcolm: Absolute nonsense. Can I just say here, my Lord, that my mind boggles on this point because even if there were no transcript at all of the 20th May conversation, even if the tape were thrown out of the window and the transcript were thrown out of the window, it is made abundantly clear in all the printed communications, my position was that I was looking for a commitment prior to doing six months' work. I had submitted a completed text, in need of revision. What had to be agreed was the revision. I was not going to do the revision unless the commitment was unconditional. Any commitment to publish - "We'll publish it if the Delegates approve it" or "We'll publish it if Richard Charkin likes it in three years' time" - was not part of the deal and would not have made sense. How could Mr Hardy possibly have written his letter of 21st May? I submit that I could at this point throw the transcript and the tape away, and make nonsense of that suggestion.
Warby: Is it not the case, then, that there may have been another conversation which you did not record.
Malcolm: There were no other conversations. I was taping every conversation we had by then, obviously; the material is in front of you.
Warby: Can I move on to page 5 of your statement, paragraph 15. In paragraph 14 you refer to Mr Hardy's letter of 18th March in which he told you about what turned out to be Mr Ryan's report, and the letter of 24th March is your reply to his letter of 18th March. What you say in the statement is this:
"I replied at great length and in some detail, being as positive as possible, but adding that in the light of experience I was unwilling to do any further work on the book without first securing from the Press a firm commitment to its publication."
Malcolm: Yes.
Warby: Would you look at the red bundle at page 25. This is your letter of 24th March. At the bottom of the page:
"One firm resolution that I have made is not to embark upon any further major polishing/rewriting exercise, which I reckon could well take up to six months of full-time work, without first securing a firm commitment from a publisher."
Malcolm: Yes. Could you add the next clause?
Warby:
"I feel there is already enough of value in the text to justify such a commitment."
Malcolm: So what is the question?
Warby: Is it not right that in paragraph 15 of your statement you put the matter rather more strongly than you did in your letter? You have referred to: "a firm commitment to its publication" and in the letter itself you were talking about a firm commitment from a publisher.
Malcolm: I cannot see any difference. I am practically quoting it, am I not? "In the light of experience, firm publication..." and so on.
Warby: I will not take any more time on that, Mr Malcolm. Let us move on to the conversation of 26th April, page 27 of the red bundle.
Malcolm: Move back?
Warby: Two pages on.
Malcolm: I beg your pardon.
Warby: You said in your statement at paragraph 20, which is at page 7 of the blue bundle, that it struck you as odd that Mr Hardy chose to reply to your letter by telephone.
Malcolm: Yes, it does strike me as odd.
Warby: Why do you think it was odd?
Malcolm: Because I thought it was normal to do things by letter, and I was doing my best to do that.
Warby: Did it not strike you that replying by telephone showed a degree of informality?
Malcolm: A slightly worrying degree of informality. Since we were, I thought, negotiating fairly seriously by now, I was trying to get things in writing. I must say I suggested a meeting, which suggestion was discreetly dropped. A point on page 27 at line 15 or 16, Mr Hardy is clearly wrestling with difficulty of expressing their position:
"Difficult (a) to decide what to do or say and (b) having decided it, difficult to express it to you..." etc.
and he said:
"So I am just going to have a shot at telling you what is in our minds and see what you think."
Warby: That suggests itself, does it not, the degree of informality at this stage?
Malcolm: Well yes, but it struck me that it would be more proper in the circumstances to write a letter, as I had. And it struck me more than once. It did fleet across my mind whether Mr Hardy was deliberately using the telephone as a way of making a commitment that would later be unprovable, and in the light of what happened that was well founded.
Warby: Did you tell Mr Hardy that you were recording the calls?
Malcolm: I did not. I had no reason to. I was just taking recordings to keep a note of what we said, as we were getting into quite detailed matters.
Warby: Let us have a look at what you did say. Page 27 in the red bundle, would you look at line 21. This is Mr Hardy having a shot at telling you what is in the minds of the OUP.
"First of all we obviously - well, I don't know if this is obvious but we can't commit ourselves in advance to accepting the results of a further attempt to reorganise the book."
Malcolm: Yes.
Warby: So that was quite clear to you - that he was not going to be giving a firm commitment in the course of this conversation.
Malcolm: That was his position at the beginning of the conversation. He had given an undetaking by the end. His position had changed slightly.
Warby: Let us take it stage by stage. At this point he is making it quite clear that that is their position.
Malcolm: Agreed.
Warby: Then line 27:
"I don't know if you feel that you need that kind of commitment in order to have the psychological motivation to turn to again?"
and you reply:
"Well, I feel I need some commitment, yes."
Malcolm: Yes.
Warby: So the word "some" is there, is it not?
Malcolm: Well, yes.
Warby: Then you go on to tell him about your experience with Allen & Unwin, I think it is.
Malcolm: No, Penguins.
Warby: Penguins, and then Allen & Unwin.
Malcolm: If I may just interrupt you. I felt that he was wheedling me, in a sense, there, because I had stated in my letter previously that I was looking for a firm commitment, and he did say, rather oddly, that he was phoning without having read my letter, I think. But he obviously did know that I was seeking a firm commitment, and he was trying to sort of wheedle me into doing the work without getting that commitment, when I had set out my position very clearly.
Warby: Let us see. At page 28, line 64, you have told him about your experiences with Penguin and Allen & Unwin, and:
"that's why I'm looking for some sort of commitment."
Malcolm: Yes.
Warby: Do you not think that that would have suggested to Mr Hardy that some more limited form of commitment other than a contract to publish would satisfy you?
Malcolm: No.
Warby: Would you look at page 29. At line 109 you are saying, after:
"...it should be long rather than it should be cheap."
"Well I do in a way, and on that subject, increasing the length is not simply proportional to the price by any means, is it."
and then he answers:
"Double the length doesn't mean double the price... for a book like this."
and then he says:
"I mean I haven't really thought very hard about how one would publish it, although I think you've said you thought it should be in paperback straight away."
and you put him right on that. So again it is plain there, is it not, that at this stage he is not in any way offering you a firm commitment to publish - that he has not thought about how that would be done?
Malcolm: No, but I am not claiming that he has issued a firm commitment to publish at that point. All that he is saying there, the suggestion about the price and length, suggests to me that he is thinking seriously about publishing it. He has not given a commitment yet, but he is certainly thinking seriously about it. You asked me just now the question: did I think that a commitment would be as strong as a contract, or something - the commitment I was looking for. I was not, in those days, thinking legalistically at all. As far as I was concerned, a commitment was a commitment. When he says "We'll publish if you do X, Y and Z", then they would. I did not have any law textbooks in my flat.
Warby: I appreciate that. Have a look at page 30, line 146. Again Mr Hardy is talking here about the possible format in which it might be published:
"If it's a five-hundred page book published in hardback and given that I think we both agree it is a somewhat speculative venture, even if we did it we probably wouldn't print a very large number to start with, so it's going to be between £15 and £20 I guess at today's prices at that sort of level."
Again, this is very much preliminary debate, is it not?
Malcolm: I would think it was a rather advanced debate, actually - talking about the retail price and the print run.
Warby: It is plain though from those words that he had not made any decision on whether to publish in hardback.
Malcolm: No, he had not made a commitment.
Warby: Then at the bottom of the page, 158 to 159, this is Mr Hardy:
"Well... I think the first thing to say is that cutting is going to improve its chances."
So he is looking forward...
Malcolm: This is all in the context of him obviously being worried about its length.
Warby: Yes. Over the page at 31, we have got some passages about the Delegates. It starts really at 173.
Malcolm: The first time I had heard the word.
Warby: He refers to Alan Ryan, who is a Delegate.
"Do you know about the Delegates?"
"No, I don't."
"Well, OUP being a University Press has a board of dons called Delegates who have to approve everything that is published."
Malcolm: Yes.
Warby: That really could not be plainer, could it?
Malcolm: No.
Warby: You must have appreciated at that stage that before you could have a contract the Delegates would have to approve the proposal.
Malcolm: Well, he says it there, but he does seem to take it back in the subsequent passage. He seems to be slightly equivocal, to me, over this stretch of the conversation. I mean, he says further on...
Warby: Let us go on and look at that - that is where you say: "the Thought Police..." that is a phrase that you come up with.
Malcolm: Yes.
Warby:
"Yes, well it isn't quite like that, though it may sound like like that. The Press is a Department of the University and we are supposed to be primarily engaged in publishing scholarly works etc. But we have a General Books Department and we do a lot of general publishing as well. Anyway, academic editors have to submit proposals for approval by the Delegates before they sign them up. We report our decisions to the Delegates on the whole, but when we think that a book may be controversial in some way or other - I mean we do get into the Thought Police when we publish very political books sometimes..."
and then he goes on to talk about a number of other things.
Malcolm: Could I just stop there. Of course you will have heard the tapes but I do not think his Lordship has heard them, and the underlining there of "on the whole" was Hardy's. It was not something I put in the transcript in order to make a point. As I recall it, he was saying "We - i.e. the General Books editors - report our decisions to the Delegates on the whole, but not always" - that seemed to be the implication, and, if I may say, the conversations I have had with Delegates and ex-Delegates and other people since then seem to all confirm that, that as far as the General Books side is concerned much more freedom is given to the editors to make the decisions; and I think there is some evidence of that.
Warby: Are you suggesting that you thought that Mr Hardy was telling you that he was in a position to approve a book without referring it to the Delegates?
Malcolm: He certainly says that...
Warby: Could you just answer the question "Yes" or "No" and then explain.
Malcolm: It does not seem to be a "Yes" or "No" question because it is not a "Yes" or "No" situation, it seems to me. I had been informed that the book had been warmly received by Alan Ryan, who is a Delegate, and then later on Mr Hardy said, on the next page:
"That, as it were, gets it basically over that hurdle..."
So it seemed to me, from what he was saying, okay, that constituted Delegates' approval. At that stage it seemed to me that he said Ryan likes it, he is a Delegate, he is the philosopher who reviewed it, therefore that amounted to Delegates' approval.
Warby: This is something on which we differ, so I must put to you what we suggest is the correct view of this conversation. At line 190:
"We published a book a couple of years ago, London After The Bomb. That was my book, that was a swingeing attack on the Home Office presentation of what to do after nuclear attack. In cases like that one takes care to clear the Delegates beforehand because, you know, if they have something reported to them something which they think is dubious, they will want to ask questions."
Malcolm: Yes.
Warby: Then he goes on at line 200...
Malcolm: Can I just take you back a minute, because he began that with the line at 189:
"I mean we do get into the Thought Police when we publish very political books sometimes."
I mean, he is saying it in the context of when there is going to be trouble we have to make sure that the Delegates approve it.
Warby: Yes.
Malcolm: Mine was not an overtly political or troublesome book.
Warby: No. What I am suggesting to you is that he is referring to books of the category that yours comes into, not political but controversial.
Malcolm: I did hope that it would be controversial, in the way that philosophy should be, but it was not a swingeing attack on the Home Office or anything like that. I took his remark there to mean that with those sorts of books we have to make sure that everything is okay Delegate-wise, and obviously with a book like London After The Bomb it would be a sensitive one, but we do not with other things, and I took mine to be not coming into that category.
Warby: I suggest to you that he was talking clearly as if it was. Look at page 30 again at line 147:
"I think we both agree it is a somewhat speculative venture."
Malcolm: Yes.
Warby: Then on page 31 he is talking about London After The Bomb and at line 200 he returns to the question of your book:
"That's why, as I say, it is important that Alan Ryan, who has read your book, is a Delegate, because he has read it and he likes it very much basically, which is good."
Then you interject, "Really?"
"That, as it were, gets it basically over that hurdle, though he too, I mean he thinks he may have some difficulty in persuading the Delegates that we would like to back it."
Malcolm: Yes.
Warby: It is obvious from that, is it not, that what Mr Hardy is saying is that because Mr Ryan is a Delegate, that will assist in getting your book past the Board of Delegates who have to approve every book...
Malcolm: Yes.
Warby: ...because, as it were, one of them has been nobbled in advance or has taken a view in your favour in advance?
Malcolm: I do not think Mr Hardy uses "nobbled in advance". He said that Mr Ryan would have to persuade the Delegates that it would be right to back it. I mean, I do not know what that amounts to and I do not see why I should be concerned. I do not know what Alan Ryan is going to say to the Delegates.
Warby: I do not want to go on about this too much. I think I have put the position clearly to you. But just finally I would suggest that what appears at lines 203 to 205 makes it quite clear that Mr Ryan and Mr Hardy are going to have to persuade the Delegates in order to get a contract for your book.
Malcolm: I think that is a completely absurd interpretation.
Warby: Let us move on to page 33, line 265, or perhaps I should start a little higher, at 260, you are saying:
"I mean it needs to be improved, but if you make allowances for that, the basic idea of it is there, the vision is there."
Malcolm: I am talking about the play, particularly the last chapter.
Warby: Yes. Then at 265 Mr Hardy says:
"Well... I've just been re-reading your letter, which I've now got to the end of. I think the position is really this, that Alan..."
that is, Alan Ryan...
"...is sympathetic towards the book and would like to be able to recommend its publication to the Delegates wholeheartedly."
Malcolm: Yes.
Warby: Would you like to revise what you have just said about your state of mind at the time in the light of that passage there?
Malcolm: No. I certainly did not feel that I was being involved in anything conditional, as far as I was concerned, upon Alan Ryan's persuading. As far as I was concerned I was conducting negotiations with Mr Hardy about whether the Press were going to publish the book. I do not really know why he was going into all this. I suppose, with hindsight, it was not really very proper of him to do so. I mean, authors deal with editors. They do not want to get involved with a Publicity Department or whatever else.
Warby: It is quite clear that he told you earlier on that the Delegates have to approve everything they publish.
Malcolm: No, I beg to differ. He told me earlier on, as far as I could see, that in the General Books Department that particular process was not so strict; that in the General Books Department they were able to act a bit more freely and publish the sort of books they liked publishing and make their own decisions. That seemed to be the implication of it all to me. Then the added fact that Alan Ryan, who had reviewed it, was a Delegate himself - I was under the impression then that things were looking very good.
Warby: Let us see what else he says about it. Page 33 line 270, which follows on from what we have just read.
"He..."
that is, Alan Ryan...
"...would not feel able to do that..."
- that is, recommend its publication to the Delegates -
"...until he saw the result of the final rewrite."
Malcolm: Yes.
Warby: So it is clear that you have got to do some rewriting before Alan Ryan can do the necessary.
Malcolm: He says that, but of course I am looking for a commitment and saying my position was and remained always that I was not going to do the rewriting until I had got a commitment.
Warby: Yes. At 276 he is summing up again:
"We both are sympathetic and want to encourage you to go ahead and do it but we feel that the gap between how it is now and how it needs to be is sufficiently large that we couldn't say absolutely outright we would publish whatever you produced by way of a rewritten version, because it might be that you were going in the wrong direction."
Malcolm: Yes.
Warby: So that is quite opposed to your requirement that you say was a contractual commitment before you started.
Malcolm: It was not quite opposed to it. I am not pleading this is a commitment, this conversation. This is pleaded as part of the negotiation, initiation or whatever. That conversation was not a commitment.
Warby: Then Mr Hardy goes on, at 285, to talk about a compromise whereby you would do the first round of thinking about reorganisation or cutting.
"We might see our way to being a bit more committed, but just at the moment that's about it, really."
Then on page 34 line 301:
"Bear with me until I've read it..."
says Mr Hardy...
"...and then we'll talk again if I feel encouraged by a reading of the whole thing... I might be able to persuade Alan to join me in taking a more [constructive] line."
Malcolm: My Lord, in these early transcripts, where there are sort of double brackets like that, I think that is where I am not quite sure what the word is. I think it was "constructive".
Warby: I am not going to enter into a dispute with you about that. I am prepared to accept that. Lower down you say maybe you could do a scissors-and-glue exercise without a commitment, and then on page 35 at line 342 Mr Hardy is talking about being sluggish and he will give you a ring again in two or three weeks. So at that stage, I suggest, it was made clear to you that the Delegates would have to approve the issue of a contract, and that no commitment could be made until the final result of your rewrite was seen by Mr Ryan and Mr Hardy.
Malcolm: You can suggest that. I suggest that what had been decided by the end of that conversation was that Mr Hardy was going away to finish reading the book, which he was halfway through, and would come back to me in two or three weeks and see if by then, having finished it, he was in a position to give the commitment I was looking for, and it turned out he was.
Warby: On this question of Delegates' approval, could I ask you to look at the blue file at page 7, paragraph 22. This is where you are summarising the conversation we have just been going through. The second sentence of that paragraph:
"He continued by briefly explaining the role of the Delegates, a committee of Dons who are appointed by the University to oversee the Press's affairs and who have to approve everything that the Press publishes."
Malcolm: Yes. Well, that is what he said.
Warby: Is there anywhere in that paragraph any mention by you of your understanding that something was different in the General Books Department, and that they did not need Delegates' approval?
Malcolm: I may not have mentioned it, no, but the transcript is in evidence. I do mention it - yes, page 8:
"He said that Mr Ryan's support for Making Names 'got it over that Delegatorial hurdle'"
Warby: If we move on to the conversation of 20th May, which starts at page 37 of the red bundle, and could you have open page 8 of the blue bundle, your statement. In paragraph 23 of your statement you say:
"On 20th May 1985, Mr Hardy again telephoned to tell me..."
and you have italicised the word "telephoned".
Malcolm: Yes.
Warby: Again, did not the fact that he had telephoned you suggest informality?
Malcolm: No. But I mean, I would have preferred all the negotiations to have been in writing.
Warby: It would be usual, would it not, if someone was going to make a commitment to publish a book, to have it in writing?
Malcolm: Exactly. That is what I thought. That is why I was overjoyed to receive the telephone call but I did think it was an odd way of going about things.
Warby: Again I should like to draw your attention to a contrast between what you put in your statement and what appears on the page as having been said in the course of conversation. Paragraph 23:
"Mr Hardy again telephoned to tell me, happily, that he had now finished reading Making Names and that 'they' had decided to publish it, at last giving me the firm commitment I had for so long (9 months) been seeking from them."
Would you now look at page 37 in the red bundle, line 7 I think it is:
"I have now finished reading the book... and, like Alan Ryan who read it before, I feel much more warmly towards it, having finished it."
Now at that stage he has not given any commitment, has he?
Malcolm: If you hear the tape, it is all...
Warby: He has not, has he?
Lightman: He goes on to say...
Malcolm: "We would like to do it."
Warby: Then he goes on to say "We would like to do it". Who do you think "we" was?
Malcolm: The Oxford University Press.
Warby: In the preceding sentence he is talking about Alan Ryan.
Malcolm: Could I just ask who do you think he meant by "we"?
Warby: Alan Ryan and himself, was it not?
Malcolm: I assumed it was the Oxford University Press. Does it make any difference if it was Alan Ryan and himself? I assumed by "we" he was referring to the Press.
Warby: I am suggesting that he was referring to himself and Ryan, and he says "We would like to do it".
Malcolm: I think in a sense I had come to, from what he said before, Alan Ryan being a Delegate and his sort of shadowy idea that if Alan Ryan said "Yes" that meant the Press said "Yes".
Warby: I see. Then he goes on to say:
"We would like to do it. That is to say, I mean I know you want a commitment sufficient to take you through the last stage of revision, and that is what I am offering. I am not offering a totally unconditional commitment..."
Malcolm: Because:
"if what you do seems to us to make it worse then we would write to say so."
Of course, yes. We are being reasonable men. I am not proposing that I should send him back the manuscript shredded, and say: "Publish that".
Warby: What he is not offering here is a commitment to publish. A commitment sufficient to take you through the last stage of revision. The last stage of revision.
Malcolm: In the context of what we have been talking about for the last nine months, that is a commitment to publish.
Warby: It is clear that there are conditions on the commitment, is it not?
Malcolm: The only condition that I hear there is "if what you do seems to us to make it worse."
Lightman: It might help Mr Malcolm if you tell him what you say any commitment was. You say it was not a commitment to publish. What commitment was it? If you would like to put it to him, so he can deal with that suggestion.
Warby: I suggest that what was being put to you by Mr Hardy here was that he and Mr Ryan would like to do the book, and they were committing themselves to supporting you through the last stages of revision, and that they would support publication of the book, they would recommend that to the Delegates, provided that they were satisfied with the quality of your revision.
Malcolm: I cannot make head nor tail of that. Even if there were not a transcript, I cannot make head nor tail. A point to interrupt there - you talk as though Mr Hardy and Mr Ryan were making a commitment, rather than the Press, as though they had agreed that they would publish it, they would perhaps put up the money and publish it under Hardy Ryan Publishers Ltd. or something.
Warby: Let me make clear what I am suggesting. In the previous conversation we have been through on 26th April Mr Hardy had told you that he and Mr Ryan wanted to recommend publication to the Delegates; that the Delegates' approval was necessary before that could be accomplished. In this conversation he is telling you, in lines 9 to 15, that he and Alan Ryan would like to do it; that is, they are giving you a commitment sufficient to take you through the last stage of revision; and then if they approve what you do they will recommend it to the Delegates and there will be a contract.
Malcolm: I do not see any of that at all.
Lightman: If you say that the offer is "I am offering", not "We are offering" - "That is what I am offering"...
Warby: That is right.
Malcolm: I can only repeat that he told me that Alan Ryan was a Delegate and that Alan Ryan liked it. In the earlier conversation he said Alan liked it, and was obviously wavering about the commitment. But here he is saying that both he and Alan Ryan agree on giving the commitment. And he has already told me that Alan Ryan is a Delegate, so in the context of the whole situation and what he said before, that sounds to me like he has got Delegates' approval, and I submit that that is what he did get. I submit further that Alan Ryan - we have been through this - that Alan Ryan went on and got the formal Delegates' approval at that meeting in question.
Warby: Let us not go into that. But at line 17 there is another reference to "we", and again I suggest that that is a reference to Mr Hardy and Mr Ryan.
Malcolm: I am deriving all sorts of fine legal distinctions - whether "we" is the Press or "we" is Ryan. I am negotiating, as I understand it, with the senior General Books Editor at the Press and I assume that anything he says is said on behalf of the Press.
Warby: Would you look at page 40 in the red bundle. At line 156 to 160 there is some talk from you about coincidences.
Malcolm: Yes.
Warby: This is where someone has turned down the book because he had known you at school, I think, and did not want any clouded judgment.
Malcolm: Yes.
Warby: Then at 161 Mr Hardy:
"On that point I should perhaps say that although I am very keen to make something of this, both Alan Ryan and I are aware, as you must be, that this is a very unconventional piece of publishing and we are aware that we are taking a risk, but I think, you know, you've got to... "
Again he is referring to Alan Ryan and himself in this context.
Malcolm: By then I thought Alan Ryan and himself were the Press. I mean, I thought Henry Hardy was the Press, and the fact that he was saying everything with Alan Ryan's backing only seemed to make it more definite to me. As far as that line is concerned, if you read it another way - we are aware that we are taking a risk. Surely that is another pretty definite statement of commitment?
Warby: Page 41, line 204, discussion about whether you want your copy back. You do not think so. Mr Hardy:
"I can let you have it back, it's just that I would like to have it accurately cast off so I can let you know if your 180,000 words is right."
"No... Keep it and cast it off accurately."
"It won't take more than a week or two... Then we can do costings and I can talk to you again at length and then having got to that point, let me revisit it and we'll talk about it some more. I mean the book has a natural length obviously, and I don't want to ask for unnecessary cuts, but at the same time length equals cover price..."
and he goes on. Now it must have been clear to you there that there was a greal deal of work to be done before any detailed terms of a contract could be agreed.
Malcolm: What occurred to me there was that Mr Hardy was going to have it accurately cast off, which was a bit of work for him.
Warby: Line 212, the first line of Mr Hardy's words there - "then we can do costings" - once he has started casting off accurately. So he is not in a position to know what the costs are at this stage.
Malcolm: He is not, no.
Warby: And he is going to talk to you about length in the future, and then he has got to revisit it. There has got to be further discussion, has there not, on that?
**Malcolm:**I was anticipating further discussion after the conversation, but then of course I got the letter which...
Warby: Let us look over the page at page 42, line 224, Mr Hardy again:
"I will let you know what the actual length is..."
this is what he is having cast off.
"...and then we'll have some costings done on the basis of the actual length and we'll talk more precisely then about what kind of saving might yield what kind of price reduction; that again depends on whether we do it in hardback only or in hardback and paperback. I am still wavering on that one."
Malcolm: Yes.
Warby: I take all these decisions to be decisions for Mr Hardy.
Malcolm: The point of the publisher - the publisher produces the book and finds out about the prices of paper and that sort of thing.
Warby: You think there is no need for any agreement as to whether it is to be published in hardback or both hardback and paperback?
Malcolm: I wanted to see it out in hardback first, and Mr Hardy had earlier on, as you noted, jumped to the conclusion to bring it straight out in paperback, which I found quite exciting but I actually would have preferred, as I said at the time, to see it in hardback first. But obviously it is a matter of bowing to some extent to the publisher's judgment, and if the matter can be agreed so much the better. I do not think this is a point to be gone into in huge detail at that point. The commitment was to publish. We are going to get into the legal argument, no doubt, about what constitutes the publication of a book. Is it the duplicating of two copies and sticking them in the nearest Oxfam shop or is it the printing of 2,000 in hardback? What is it? What does the publication of a book consist of? But, I mean, you know and I know what it consists of.
Warby: At this stage you had not agreed what it would consist of, had you?
Malcolm: He had not told me the print run, the size. He had indicated to me that it was going to come out in hardback first, and that I approved of and I said "Yup", or something like that, to that suggestion.
Warby: You did not have any agreement on the price, and at this stage there was nothing said about royalties.
Malcolm: We had had quite a lot of conversation about the pricing - I beg to differ. In the earlier conversation we talked about the price.
Warby: Yes, there had been mention of £15 to £20 if it is hardback.
Malcolm: Which took me aback a bit.
Warby: There was no agreement.
Malcolm: I think, in those circumstances, the author who is desperately seeking a publisher to publish his book is not going to start making conditions or laying down the law about what the price or the costings are and all that stuff. He leaves that to the publisher, I thought, to a certain extent. Everything that Hardy had said about the hardback business - I was a bit surprised by his suggestion that it go straight into paperback - but we had been talking about it and coming to an agreement, I thought. It seemed to be a reasonable meeting of minds.
Warby: Would you look now at page 44, line 321, there is talk about dotted line or asterisks where the break comes between each speaker. Then Mr Hardy goes on:
"I'll be getting in touch again when I've done the costs and cast-off and so forth and then we can talk about some sort of contract."
Malcolm: Yes.
Warby: Really it could not be plainer, could it, at this stage, that he is talking about a contract in the future?
Malcolm: Well, he is obviously talking about sending me this formal memorandum of agreement. I obviously had not seen one at that time, but I imagined it would be normal to send out some sort of formal document of that kind.
Warby: So you say he is just talking here about a formal contract recording what you had agreed?
Malcolm: Yes.
Lightman: What had been agreed?
Malcolm: That they would publish the book if I did the revision - this, that and the other - and he had a pretty good idea of what the publication would consist of - a small, short run hardback, at roughly £15 or £20 or whatever it was.
Warby: I will come on to the conditions in a moment, but at this point can I just draw your attention to line 324:
"Then..."
that is after he has done the cost and cast-off...
"we can talk about some sort of contract."
Malcolm: Yes.
Warby: In your statement you have described that as Mr Hardy saying he would come back to you with a written contract - page 9 line 3 of your witness statement.
Malcolm: Yes. I assume that is what he meant.
Warby: He does not say that. He says "some sort of contract". Is it not obvious there that it is open to discussion and negotiation?
Malcolm: I think it is obvious there that he is talking about some sort of written contract.
Warby: Some sort - yes.
Malcolm: Of written contract.
Warby: Let us look at line 326 and following. You said:
"Great! Fantastic news! Really good!"
Mr Hardy:
"It seems to me that because it's such a risky venture I'm not going to be terribly generous financially."
There is an "er, er", as stated.
Malcolm: Yes, there are one or two "er, ers," as stated.
Warby: I am not criticising you for that.
"... I mean what I think we should agree is that you have a fair royalty, so that if the book is a success you will do well out of it."
Malcolm: Yes.
Warby: Can I suggest to you that "It seems to me that... I am not going to be terribly generous financially" indicates quite clearly that Mr Hardy was talking about the future - a future decision about financial contemplation view on publication.
Malcolm: I think it was exactly what he was saying. He is saying it is going to be a risky proposal, which I accepted, but that it might do very well, and that therefore, given the risk they were not giving me any advance but I would sort of be compensated because I would get - I take "fair royalty" there to be above average, as a sort of quid pro quo for no advance - and I think advances are advances on royalties. So that is how I saw it and that is actually what I preferred. I preferred, given that I had a belief then that the book would do well, I would have preferred an arrangement where I had no advance but had an above average royalty, and I thought that was what we agreed there.
Warby: Where do you find the words "above average" there?
Malcolm: I interpreted it - I interpreted the word "fair" as very good - fair erring on the above-average side.
Warby: He says "what I think we should agree" - does that not suggest to you that he is talking about the future?
Malcolm: No. I think he is talking about now. He is saying what we should agree is this, and I say yes.
Warby: If you thought that that meant an above average royalty, were you not concerned to ensure that a figure was set at this stage?
Malcolm: Not particularly. I trusted him to put it all down in the thing he was going to send me. I know what the royalties are - normal royalties on books.
Warby: What if he said two per cent?
Malcolm: Obviously that is ridiculous, not a fair royalty. I might say, my Lord, that I had been trying, as you might have gathered from the conversations, for years to get the book published, and I was going on another round of it with a new version of it, and was using things like The Writers & Artists' Yearbook and directories like that, and they all set out normal terms of such agreements, and I knew what he meant by a fair royalty, and I am sure he did, and the fact that we have now discovered the Publishing Proposal Form proves the point almost exactly what I assumed he meant.
Warby: Can we deal with the conditions as to revision.
Malcolm: Go back to the beginning?
Warby: Page 37, line 26. Mr Hardy talking about his and Mr Ryan's reaction:
"The first chapter is indeed both very long, much longer than any of the others and somehow less lively... There may be a sense in which... it may be a bit stiffer and more stilted and less relaxed."
Line 26 and then it runs on down to line 32. Do you see that?
Malcolm: Yes. And I agree with him.
Warby: Do you accept it is a matter of judgment whether a revision of Chapter One makes the chapter less stilted, more relaxed?
Malcolm: I suppose it is always possible to produce something or say something opposite to what one says on such things - that is a matter of judgment.
Warby: Yes, it is a matter on which opinions could differ, is it not?
Malcolm: I suppose it is. I do not know whether they could reasonably differ.
Warby: They could honestly differ.
Malcolm: They could honestly differ.
Warby: On page 38, line 53 - this is at the top of his list of points written down. Starting right at the top:
"We both feel the title is very boring."
and this is an illustration of how opinions can differ, is it not, because at line 61 you say, perhaps with surprise:
"I was rather pleased with the title."
Then he says:
"Maybe some kind of sub-title is what is needed as well as the main title."
and then you tell him about the original version and the original title.
Malcolm: Yes.
Warby: It is really not a black and white issue, is it - the question of the title?
Malcolm: It is not black and white. It did not seem to be a particularly crucial issue, as the correspondence that followed it showed.
Warby: I suggest it is an illustration of the sort of differences of opinion that can arise over this revision that you are to undertake.
Malcolm: Yes. Did I not say somewhere in a letter it would be a wonderful irony if the only disagreement between us was over the book's title - I think I did - and we could agree on everything else?
Warby: Let us look at some of the other matters. Lower down page 38, line 74:
"I've talked to Alan this morning about it and we've talked about the question of the various implausibilities if you're trying to take the text as something which could be used as a straight film script."
Malcolm: Yes.
Warby: And lower down:
"We certainly feel..."
That is, him and Ryan
"...that if you really want to make every word of this work as a straight script there'd be an awful lot of changes to be made, particularly in some parts."
Again, that is all a matter of judgment, is it not?
Malcolm: There he is clearly talking about, and I was clearly talking about, taking it as a script - that is, a tele script or a film script.
Warby: Yes, if that was to be the approach.
Malcolm: But I was not suggesting that it was a film script. It was a book.
Warby: Then over the page, page 39, at the top:
"There are one or two kind of things which stick out more than others as I have mentioned. One is to do with the structure, which I guess may be beyond redemption, and the other is to do with local texture of the language."
Then I think he goes on to deal with structure. For instance, at line 101:
"There are places where one feels more than at others that what is supposed to be happening in ten minutes would be bound to take a good hour and a half. I don't know if you can soften the edges of that at all?"
Is that something he wanted you to do?
Malcolm: Yes. He wanted to talk about it.
Warby: Yes. Would you accept that opinions could differ about whether your revision, when it was produced, had softened the edges?
Malcolm: I do think that that is one point where it would be very easy to assess whether I had got it right in terms of chronology. All you have got to do is to time the conversation. That is something that could be scientifically measured, I would have thought. Not that I attempted to do that.
Lightman: Opinions could differ whether you had softened the edges, do you say?
Malcolm: He is talking there about the chronology, and we go on and somewhere we talk about getting to a pub by closing time, and things like that, and that conversation is supposed to take an hour but it could not have done because the sun went down - and that sort of thing. I think he is just asking me to make the conversations fit the passing of the day more plausibly, which we talked about, and I did. I think that is one particular aspect where it would be a matter where opinions could not differ, in the sense that we could actually read the thing out and see if it was possible to get through the whole conversation in how ever many hours it is - 18 hours, or whatever.
Warby: Lower down the page there is another general implausibility referred to at line 122:
"...another kind of general implausibility which is whether people would really have philosophical discussions of this sophistication when crossing busy streets or doing other things, but that is the sort of generalised suspension of disbelief that is involved in the whole enterprise."
That is obviously another thing he is not entirely happy with, is it not?
Malcolm: Well, he has - we then - used it to illustrate the kind of notion of what is plausible for one person is implausible for another. I mean, just about the most implausible situation one could imagine is happening at the moment.
Warby: It is right, is it not, that he is indicating he is a little unhappy at the general implausibility about the current situation, is he not, in which the discussion takes place?
Malcolm: Yes. It seems to me that he is saying that - he seems to me almost judging it is implausible that people have philosophical conversations at all; or at least if they do have them they only have them in university lectures or seminars or wherever else it might be - which I personally do not find implausible. If you go outside this court now and listen on the street you would find people here and there might be having bizarre conversations.
Warby: The straight thing about this point is, is it not, that it is left rather in the air? Mr Hardy indicates that he is not happy with this.
Malcolm: Obviously we have slightly different views about what life is like.
Warby: Then I think he moves on to the language - page 40, line 170:
"I think those were the two main points on the sort of structure of the book. If we move on now to the language. I mean I do not know how much rewriting you have done, but it looks as if, at times, some of the chunks of dialogue might have been lifted more or less unchanged out of the previous non-dialogue version."
"That is right, yes."
Then he goes on at 179:
"I think there are certain literary modes of speech or habits which more obviously stick out when they are put in a dialogue context. Like when you are talking about a range of examples, and one of the examples comes with the other one or two in brackets after it."
Then he goes on, does he not, to give examples of the sort of literary habits he is talking about?
Malcolm: Yes.
Warby: But those are clearly only examples, are they not?
Malcolm: How do you mean?
Warby: What I am saying is that there may well be other literary modes of speech or habit which Mr Hardy has in mind that he has not set out in a comprehensive list.
Malcolm: If the list were any more comprehensive it would be preposterous. He is actually talking about punctuation. Do these instructions normally form part of the memorandum of agreement? Could I just say something myself, my Lord, here?
Lightman: Yes.
Malcolm: Mr Warby is obviously endeavouring to show that this is an extremely vague and imprecise setting out of terms of the contract, or something like that. I would suggest that all this would have a lot more, or have some more plausibility - not much more, but some plausibility - if they had made any attempt to read the second draft of the book when it was resubmitted. Having got bogged down, I think, in paragraph 26 of the Statement of Claim, I never submitted the evidence that supports my paragraph that they neither sought nor received any report on the second draft. I shall have to go back to the other position to do that, but could I just point out, my Lord, that when I resubmitted it to - by then Mr Hardy was out of the picture and it was a Miss Bion, whose position and responsibility in the Press were, and remain, unclear - I think I first phoned her, and there is an account of it in my witness statement, she told me, and it is I think on her receipt card, that I resubmitted two copies of the book to speed up the process of refereeing. She said it would have to go to two readers, and I sent two copies, one to her and one to Mr Hardy, and then she replied somewhere on a card that I did not get for several weeks that it had gone to two readers. I kept phoning her. She said it would be two or three weeks and it turned out to be two or three months. So I phoned her two or three times, and at one time she told me that it had gone back to Alan Ryan and Alan Ryan had taken it with him to Canada, and it had then gone to another reader, and so on. So it sounded as though people were seriously looking at it, and presumably would produce detailed reports. As it turns out, discovery of documents has revealed no reports on the second draft. All we have is a letter that I have not got to in the evidence, because of that paragraph 26, but the letter was from Alan Ryan to Nicola Bion.
Warby: I have that in mind.
Malcolm: Anyway, it is a letter, it is not a reader's report.
Lightman: I think the question was put to you - do not worry about what the consequence was. I think what is being put to you is that at page 37 where the commitment, such as it is, is made to you - I make no comment about the form of commitment at this stage - what is said is "I cannot offer a totally unconditional commitment, but obviously if what you do seems to make it worse then we would write to say so."
Malcolm: Yes.
Lightman: What is being put to you, as I understand it, in cross-examination is whether or not your rewriting made improvements involved a matter of judgment. It is a matter of judgment whether you had improved it or not.
Malcolm: Yes.
Lightman: I understand that that is the essential question that is being put in cross-examination.
Malcolm: I think it is not a matter of judgment whether the length has been...
Lightman: Leave aside length, but there are a number of matters that Counsel has put to you, what he is saying is it may be a matter of judgment whether you have improved it and how far you have improved it.
Malcolm: I can see that in certain respects that is true. But in most of the respects in which he has been saying it is a matter of judgment - I mean the timing is a matter of a stopwatch. There is all this stuff about typography and punctuation - so detailed that it could not be more precise short of specifying the quality of the ink; spelling mistakes and how to use brackets, and where to put the index to the quotations. These are not matters of judgment, they are matters of typography and punctuation.
Lightman: But there are a number of matters.
Malcolm: The general implausibility is a point in which one is obviously involved in people's views of what people are like. People have different views about how people talk and that sort of thing. But aside of that, I think there are not many matters in it which are matters of judgment.
Lightman: There are some matters.
Malcolm: There are one or two. But I think the plausibility one is basically it, and the title. Mr Hardy thinks that the title "Hmmm", if that is how you spell it, was a good one, which I did not agree with. I think most of the other matters are fairly precise.
Warby: Mr Malcolm, perhaps we could look at page 43 in the red bundle, line 274, where Mr Hardy says:
"Those are most of the things I have noted."
Malcolm: Yes.
Warby: The first point I should like to suggest to you is the use of the word "most" - that he has got other things in mind that he wants to consider in relation to any revision. Is that not clear to you from that?
Malcolm: One thing that I would suggest is that it implies that if there are more things that he has not told me of, they are down on a piece of paper in front of him. It is evident to me that he is ticking these off on a list. I take that to mean it is most of the important things; that he regards anything else as trivial. And I do not think you could get much more trivial than what he has recently been going on about.
Warby: Then he says:
"Now, to sum up: you're going to have a crack at shortening to some degree, making it more consistent in style and tone, in particular breaking up the first chapter."
Malcolm: Yes.
Warby: Now, "more consistent in style and tone", would you agree with me, that that again is a matter of judgment, on which opinions can differ?
Malcolm: Yes. He has obviously got some objective idea about things.
Warby: Can I finally just take you back to page 37 and the words at lines 14 and 15:
"Obviously if what you do seems to us to make it worse, we would write to say so."
Malcolm: Yes.
Warby: Are you suggesting that there we could take that literally, and that unless the Press found that your efforts had made it worse they were bound to publish the book?
Malcolm: I take it just as stating the obvious, that he had an understanding that I was going to endeavour to improve it in the respects in which he sets out; that he is not committing himself to publishing, if I sent back my diaries for 1985, for example.
Warby: It is clear, is it not, that he is not happy with the text as it stands?
Malcolm: Hmmm.
Warby: So that if you did not change it at all he would not be happy to publish it.
Malcolm: Obviously I would not be spending six months doing nothing at all and then sending it back to him.
Warby: Is not the sensible interpretation of what he is saying here that "we want to have a look at what you do when you revise the thing, and if we are happy with it then we will publish it"?
Malcolm: I find that suggestion quite preposterous. The whole negotiation has been on the basis that I have been looking for and trying to secure a firm commitment to publish; that what has to be agreed is what I have to do, what formula we have to agree, that will ensure publication.
Warby: The indication is that Mr Hardy is enthusiastic about the book - that has been indicated to you - and that Mr Ryan has expressed a favourable opinion; but as it stands they are not happy with it and they want it to be revised, and they would need to reconsider, once it has been revised, and then make a decision.
Malcolm: I just find this logic completely baffling. The very first submission of the first draft back in August of the year before, or whenever it was, had an apology on the front page, acknowledging that I am anticipating doing six months' work on it. They do not have to persuade me that it needs to be revised in certain ways. I told them that in the past. I accepted that over and over again.
Warby: Yes. Well, you have made that clear. If we look at page 45 of the red bundle, and could you have open the blue bundle at page 9. Paragraph 25 of your statement says:
"Instead, on the very next day Mr Hardy wrote to me confirming the Press's go-ahead."
that is how you describe it.
Malcolm: I had been expecting a letter in two or three weeks' time, as he said. In fact it came the next day.
Warby: Yes. And he explains, does he not, at page 45:
"I am writing sooner than I thought..."
Malcolm: Yes.
Warby: And then he explains why:
"...because it would be useful to me if you could kindly fill in the enclosed Author's Publicity Form, the information in which will be invaluable to us in marketing your book. I am personally especially interested in what you offer by way of a draft blurb, since I shall base on this what I say about the book to the Delegates."
He is making clear there that he has got to say something to the Delegates about the book.
Malcolm: He is making clear that he is going to.
Warby: You have suggested that your understanding on 20th May was that there was no need to talk to the Delegates.
Malcolm: My understanding on 20th May was that Mr Hardy, with the backing of Mr Ryan, a Delegate, had given me a commitment that if I did X, Y and Z as set out, they would publish the book.
Warby: Well, if that is so just let me ask you this. If that is so, did it not surprise you that in this letter Mr Hardy should be talking about what he is going to say to the Delegates?
Malcolm: Not really, any more than it would surprise me when he says he has got to do the costings and then cast off. These are jobs for him, I thought.
Warby: He told you on 26th April that all the books published by OUP needed to be approved by the Delegates, and he told you here:
"I shall base on this what I say about the book to the Delegates."
Malcolm: But he has also said that as General Books editor he had a free hand, and Alan Ryan approved it and that got it over the Delegates' hurdle. It is absurd to suggest he is putting some sort of condition in there. The whole context of the thing was that the commitment was to be without further conditions of any unreasonable kind.
Warby: Then what did you think he was talking about the Delegates for?
Malcolm: That is a matter for him. He says what he says - he is personally especially interested. He has read it. I do not know why - I think this is a question for Mr Hardy.
Warby: I suggest to you that it was clear to you from the conversation on 26th April that the Delegates' approval was necessary.
Lightman: Can I just ask you, before we finish there, to remind the witness of what forms the opening of the last paragraph:
"I am pleased that we are going to do your book."
It does not say "I am pleased that we are going to do your book if the Delegates agree."
Warby: My Lord, yes.
Lightman: Would you like to comment on that, Mr Malcolm?
Malcolm: I could not have read it better myself.
Warby: As to that last paragraph, Mr Malcolm...
"I am pleased that we are going to do your book, and hope it's a terrific success."
...there was never any doubt, was there, that Mr Hardy was keen to do the book, have it published?
Malcolm: There did not seem to be any doubt then. I detect a completely different story in his witness statement, but certainly then - though I think what Mr Hardy does say in his witness statement is that he was excited, and everything he said in the conversation that arose conveyed that to me. And of course I was excited.
Warby: Just to make clear, you understood the suggestion that I made to you, that it was clear to you from the 26th April conversation and this letter that the Delegates' approval was necessary before a final binding commitment could be made to publish the book.
Malcolm: You are saying that is your interpretation.
Warby: Yes.
Malcolm: If it had been mine I would not have done the work. I would not have started making arrangements to move to Ditchling.
Warby: Could you take the blue bundle and go to page 12. At the bottom of the page, paragraph 36:
"On 19th July 1985 I got Mr Charkin's letter totally reneging on the Press's commitment. The chief reason he gave for his decision was doubt about the book's 'market potential'. At that stage legal action, though an option, seemed distasteful, so although I felt desperately disappointed and angry, I thought it best to remain 'philosophical' and keep talking, in the hopes that (a) the problem at OUP might be overcome, (b) Mr Hardy might help me to find an alternative publisher or (c) I would learn more about what had happened which might provide me with extra legal 'ammunition'."
You in fact wrote a letter on 22nd July, which we find at page 70 of the red bundle. Before I come to the letter itself, you explain the circumstances in which it was written. At paragraph 42 of your statement, Mr Hardy:
"...dictated a letter for me which said that, although disappointed, I did not intend to take legal action."
He dictated that to you over the phone and you took a note, did you?
Malcolm: No, there was a tape going.
Warby: But the letter you wrote was not the one he dictated to you?
Malcolm: Not quite.
Warby: It was your own slightly revised version, was it?
Malcolm: That is right.
Warby: Let us look at it, at B.70:
"Dear Henry"
you refer to Mr Charkin's letter:
"By rights I know that I should be extremely angry at this setback after all your interest and encouragement, not to mention your firm written commitments [and your arrangements] in the light of OUP's apparent acceptance."
Then in the middle of that second paragraph:
"I suppose that all along I have known, not so deep down, that it would be too much to hope that a philosophical work as evidently controversial as mine would ever be published by a Press as respectable and as 'safe' as yours."
Malcolm: Yes.
Warby: Then you go on to thank him for his faith in the book. Is it not the case that you knew all along that Mr Hardy's commitment was not enough, and that there were other hurdles to be got over?
Malcolm: I was surprised, I would have to confess - from the start I was surprised and was gratified that they were taking the book seriously. It was not obviously a book, to my perception of their list, that fitted into their list. I think perhaps on that point the opening letter of our correspondence is interesting, if I may refer you to page 16, I think. I wrote originally to Mrs Angela Blackburn, who is the Philosophy editor, so it did not go to the General Books Department directly. I acknowledge in there that it is unconventional in many ways, breaks publishing rules and so on. OUP were fairly low down on my list of publishers I tried that year. I was coming to the end of the list of possible publishers. There are not that many publishers who publish serious philosophical works, and I wanted it to be published by a publisher who publishes serious philosophical works because I wanted it to be taken seriously; I did not want it to be published by some fringe publisher with no reputation. As a matter of fact I think one of the phone calls that I had with Mr Hardy after 18th July, when we discussed the possibilities of alternative ways of publishing it, we talked about this very point - the value of having a prestigious imprint like OUP, especially for a book like this which is unconventional, because I believed the argument and the writing deployed in it are thoroughgoing. So I wanted a prestigious publisher, and a publisher with a reputation for publishing serious philosophical works to publish it. There are not many of those and I tried most of them, but I had not tried OUP because I thought they were too highly academic. I think the opening letters - I do not need to read them out...
Warby: Yes, I follow what you say. The point that I was putting to you...
Malcolm: I mean, I had been surprised by their interest in it, and very excited, obviously. This was, I thought, the jackpot. OUP had taken it seriously. I was in business with the best publisher I could have dreamt of. But to come back to explaining why I say deep down - I had been through this trauma - by this time about four or five previous experiences of getting so far with publishers and then coming up against some fearful switch of editors, or spending a year on the book and being with an enthusiastic editor and then someone else steps in and turns it down. I was pessimistic generally. I was very much at the end of the road. There were not many more publishers to try. I told Hardy about all this. I told him some of the previous experiences. Yet I maintained an internal pessimism. By that time, the best thing was to go along with publishers, because I had had so many bad experiences before. I found out they always did, and, sure enough, they did.
Warby: Let me just put to you what I suggest in relation to B.70. What you are saying there is that throughout your experiences with Mr Hardy you knew that it was too much to hope that the work would be published. You knew that there were further hurdles to be got over.
Malcolm: But you just reread the first three lines of that paragraph.
Warby: Yes, I have seen that. I have read that. I am just putting to you what I am suggesting led to that document.
Malcolm: Well, you can suggest it. I do not agree.
Warby: Can I move on to page 16 of the blue bundle, paragraph 48 of your statement. This is a conversation on 23rd July with Mr Hardy on the telephone:
"Mr Hardy assured me that although my book would from now on formally be handled by a Ms Nicola Bion, whose position he did not specify, he would remain editorially responsible for it. He again advised me to invest in a word-processor."
At this stage it was clear that Mr Hardy was no longer in a position to speak on behalf of the Press as to the publication of your book.
Malcolm: No. I sought, and got from him, an assurance that he would remain editorially responsible; that I would not have to start talking about the book with someone completely new, having spent by now a year negotiating with an editor, talking about cuts and plausibilities and all the rest of it, and now being handed over to someone else who will say "Oh, I don't like this. I don't like this idea of a dialogue." So I sought and got from him an assurance that he would continue to handle it. As far as that goes, I thought he was saying technically that - I could put the transcript in evidence if you like and you could hear what he said - he talked about Nicola Bion being responsible for the financial side, and the production, but he would remain responsible for talking about the content or the book.
Warby: Perhaps we can look at page 114 in the red bundle. This is later on, in October. This is a letter from you to Mr Hardy, second paragraph. I should refer to the first paragraph - you are enclosing the first two revised chapters for Mr Hardy's consideration:
"I hope your new job will allow you enough time to read them carefully, as I very much value any criticism and remarks which you may be moved to make."
Then later on:
"If you would then pass it on to Nicola Bion, assuming that you still think it worth pursuing."
It is clear there, is it not, that you realise that Mr Hardy is not in a position to make a final decision?
Malcolm: I think it is mentioned in my witness statement that between the umpteen telephone conversations that I had with Mr Hardy and with Ms Bion, in the meanwhile, in which it became gradually clearer and clearer that everyone was backing away, having set me off. Before sending that letter and the two opening chapters in October I phoned Mr Hardy, and he was then already backtracking on his earlier commitment.
Lightman: I think the question asked is whether, when you wrote this letter, you thought that Mr Hardy was still editorially responsible for the book.
Malcolm: He said to me he was.
Lightman: Was that your state of mind when you wrote this letter on 15 October?
Malcolm: I was beginning to feel that he was backing away from any sort of responsibility. I was beginning to fear the worst. That is why, incidentally, I may say I have not pleaded any of the evidence, presented any of the evidence of this part of the story. I thought at this stage, sending back these two new first chapters would give them an opportunity - of course by this time I was careful to listen to the tapes and hear exactly what he said - and he said "If what you do seems to us to make it worse, we would write to say so." Here I thought I was giving them an opportunity to say "We're not quite sure you are going in the right direction", so if they thought I was going in the wrong direction they could say so and then I would not waste another three or four or five months or the rest of my life, whatever it was going to be.
Warby: If I could just take you up on that, it is clear from what you have just said that you appreciated that there was considerable room for debate about the direction in which you were going.
Malcolm: I have appreciated, ever since I started this book, that every time it is presented to someone they will say something different. I have spent five years trying to get someone to publish it, and every single response is different. No two people agree. No two editors in the same company agree. The same person changes his mind. That is why I was extraordinarily careful to get a firm, clear commitment in the first place. I had by then discovered that people do not stick by their commitments; they change their minds and they blow hot and cold like the wind.
Warby: Can I continue on this point about Mr Hardy's role. Page 116 of the red bundle.
Malcolm: I think it is only fair, if I may intervene, that this part of the evidence has not been pleaded. It has not been presented by me. It does not form part of my pleading. But I think it would be fair to read out the letter which Mr Hardy wrote when he had read the two new chapters.
Lightman: I am not entirely clear at the moment as to what end Mr Warby is cross-examining you. No doubt he will make that clear.
Malcolm: In fairness I think he ought to read out in full the letter that I got back from Mr Hardy on 8th November.
Warby: That is the letter I am coming to, Mr Malcolm.
Lightman: I have read it.
Warby: The only point I should like to draw your attention to, Mr Malcolm, is the second sentence:
"My opinion has of course no status in the matter any more, but they seem to me to be fine."
He is talking about the two chapters.
Malcolm: Yes.
Warby: Did you write back saying "What do you mean, my opinion has no status in the matter?"
Malcolm: No.
Warby: I have already suggested to you my client's case is that it was clear to you that Mr Hardy was not editorially responsible for this book; he was not going to have the final say on whether the revised version that you would produce would be approved.
Lightman: You are talking of different time stages. As I understand it, the position is that Mr Hardy was shifted from one position to another. The fact that at this stage he had no responsibility is not necessarily of significance in regard to what his position was on 20th May.
Warby: My Lord, I appreciate that.
Lightman: Is it a very helpful line to be taken?
Warby: My Lord, I have finished that line of questioning, in any event, so perhaps we can leave that open.
Warby: Perhaps I could ask you to look at page 94 now in the red bundle. He is talking about Mr Charkin not wanting to...
Malcolm: This was after the disciplinary hearing.
Warby: That is right. After he has won his appeal. He says he has spoken to Charkin. Mr Charkin has told him that he wanted to be sure not to raise your hopes too high.
"He does not at all wish to rule out acceptance of a revised typescript. This would have to be refereed, of course, as he says, but the outcome of this process is not being prejudged."
Then there is this:
"I hope that, even though there cannot be a contract at this stage, you will think it worth your while to undertake the revision."
He is making it quite clear that there cannot be a contract at that stage.
Malcolm: By then I had been advised that I had grounds for asserting that there was a contract. I had also been advised that whatever anyone says afterwards, once an agreement is reached that is it. I took that letter to be almost a Freudian slip.
Warby: Did you write back to him making that point?
Malcolm: No. I phoned him up after that letter. I think it is in my witness statement. I phoned him up on the 26th July, still reluctant to get further involved. I was now in a kind of bizarre situation where he was actually trying to persuade me to go back and do the revision. I had been ratted on once. I had warned them of my legal rights. Then he comes back to me and says - I am by now extremely reluctant to have anything to do with them - and he comes back to me and says "No, no, please, you must do the revision." I was obviously reluctant. I was saying "But what about this? What about that?" I do not know that I have pleaded it all, I mentioned it all in the witness statement, but - "What if I do six months' work and then Mr Charkin writes to me again with some nonsense about marketing doubts and all that stuff?" I got quite categoric assurances on several points. I mean, that Mr Hardy would remain editorially responsible. I do not need to read out my written statement, but I felt I had a contract on 20th May. But obviously I was not anticipating - I did not want to get involved in a situation where I would have to be spending three years in the courts. I was hoping that people would do what they said they would do. Then I asked him to put down in writing all the revision requirements that he had set out before on the phone, and I got that letter on 30th July.
Warby: On 31st July you received the letter at page 95 which opens, as you rightly say in your witness statement:
"Let me now try, as promised, to summarise the changes that seem to us to be required."
If we look down - the book is too long, and he explains that. The next paragraph:
"The dialogue style clanks occasionally, but you are well aware of this. Improvement will be a matter of numerous local alterations."
and then he sets them out. Then:
"All the readers, as you know, have been worried about the play."
Then five lines up from the bottom:
"All I will say here is that anything you can do to make its role in your drama more accessible, and its performance of that role more effective, will be worthwhile. Knowing that you regard the play's contribution as central, we are not asking you to remove it - just to make it work."
Ignoring the point about the book being too long, do you accept that the point about the dialogue style clanking and about the play are, again, matters of judgment? Matters of opinion?
Malcolm: To an extent. I agree with Mr Hardy - we had agreed, I think - about certain clankings. By this time I think he had read me over the telephoneGalen Strawson's report on the book, which talked about certain clanking bits of dialogue, and we had agreed on that, I think. The play...
Warby: Just to make it work.
Malcolm: Yes.
Warby: That is obviously a matter of opinion, is it not?
Malcolm: Yes. I am not sure which report we are talking about, but somewhere one of the reviewers did actually use that phrase - "the dialogue on the whole works well" - I think stated by Alan Ryan, but I cannot lay my hand on it.
Warby: I do not have any more questions to ask you on that. Could we look at page 17 of the blue bundle, paragraph 52 of your statement. You are talking about your state of mind after you received this letter setting out the requirements. There is a line:
"...these documents would be produced in any Court action."
Then a sentence:
"I believed from what Mr Hardy had said and written that at some stage the Delegates, the supreme authority at the Press, must have approved the book's publication."
Malcolm: Yes.
Warby: This is what you believed on 31st July.
Malcolm: Yes.
Warby: And it is what you still think.
Malcolm: I think it even more so now.
Warby: But I have already suggested it is not something you thought was the case when you spoke to Mr Hardy on 20th May. That is what I am putting to you. It is not something you thought on 20th May.
Malcolm: He wrote to me this letter of whenever it was - 21st May - that he was going to base whatever it was that was written in the Author's Publicity Form on what he would say to the Delegates, and he had implied Alan Ryan's approval, that Alan Ryan would get it through the Delegates's approval. Generally that is the understanding I had. So I assumed that, given that I had sent my Author's Publicity Form back in May, at some point or other Mr Ryan must have done that.
Warby: Let us look at page 24 of the blue bundle and see what you say in your statement about this, paragraph 77.
Malcolm: I might add, I suppose, that the writing of the witness statement some three years' worth of litigation and years' worth of rewriting later, it is difficult, my emphases may have been coloured by obviously all the paper that has come out in the meanwhile. But I did assume at that time I must have got the delegatorial approval.
Warby: Let us look at paragraph 77:
"I had always assumed that at some stage, presumably after 30th May 1985, the Delegates had formally considered and approved the book's publication."
So it is clear there you are saying that after 30th May you thought that everything was fine.
Malcolm: Obviously Mr Hardy said he based what he said to the Delegates on my Author's Publicity Form which I sent on 30th May, so I assumed at some time after that he must have said something to the Delegates. Of course at that stage I had no knowledge of what saying something to the Delegates meant. I was under the impression that Mr Ryan would be getting it through.
Warby: I do not think we need cover that ground again. Can I take you back to page 19 of the blue bundle. In paragraph 56 we are now dealing with your revised version, the second draft as far as this action is concerned. You say:
"I sent two copies of the typescript, for safety addressing one to Ms Bion and one to Mr Hardy. With both I enclosed a covering letter, another apology in which I envisaged a final brief polishing session on the play, and an accurate summary listing all of the cuts and changes I had achieved. This list precisely conformed to, and in some instances exceeded, all of the revision requirements specified by Mr Hardy in his phonecall of 20th May and listed in his letter."
that we looked at just now.
Malcolm: Yes. Can you read to the end of the paragraph?
Warby:
"In particular, the overall length of the book had been cut by 26%, as against the 20% requested."
Malcolm: Yes.
Warby: I said I had finished asking you questions about page 95 in the red bundle, but could I ask you to look back at it, and just to remind you that one of the requirements in Mr Hardy's letter was that the play should work, that it should be more accessible, and performance of the role more effective.
Malcolm: Yes.
Warby: Would you accept that it is impossible to say that a revision precisely conforms to that requirement because, as you accepted earlier, it is really a matter of opinion?
Malcolm: I certainly accept that any piece of writing can be indefinitely improved. My Lord, could I - Mr Warby has raised this. When I sent back the second draft, which you have in front of you, there is an apology on the front saying that I anticipated doing more work on the play.
Warby: Yes. We find that at page 118 of the red bundle, or we find something similar, the covering letter that you sent.
Malcolm: I anticipated doing more work on it, which I did. As I said, I was in bad need of a holiday, and I came back after the holiday and did the revised play, which was then more or less in final form, and worked better. I think the correspondence is in the red file. I sent two copies of it to Alan Ryan, and he only ever returned one of them to me.
Warby: Could I just ask you to look at pages 118 and 119. Let us look at 118 first. The second line:
"Just to repeat: I still regard the new Chapter 9 as a first, well, okay, a second draft."
Then on page 119 you comment - this is your list of the changes:
"Chapter 9 (8). Prologue and Intervals pared to the bone to make the purpose as clear as possible. Play's plot re-worked to great advantage and also, surely, to great appeal to current feminist sympathies. I have attempted to use heroic verse and I know more work needs to be done on this, but I hope that the object of the exercise is now apparent."
So it is clear that that aspect of it is incomplete and needs to be worked on further.
Malcolm: Yes, I acknowledge that. And I also add that it was a great improvement on the earlier one. I anticipated that by the time the second draft had been refereed in two or three weeks and I had had my holiday, that I might have the play ready. I had got so far with it, I was completely exhausted, I thought I would send it off and they could start reading it, and I could carry on working on the play, and that is exactly what I did, although it took me a bit longer to do it.
Warby: Finally, at the bottom of the page on 119 you deal with the sub-title:
"Not the sort of thing you were looking for, I guess, but I rather like it."
Malcolm: Yes.
Warby: So again you are anticipating that they may not like that.
Malcolm: I just proffered it.
Warby: My Lord, I do not think I have any further questions. Perhaps I could reserve my position overnight.
Lightman: Right. Tomorrow, subject to any further questions Mr Warby has, if there are matters you want to tell me in response to some of the questioning that you have had, that will be the opportunity.
END
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