Richard Charkin cross-examined, 14/3/1990 (original) (raw)
MALCOLM v. THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD
IN THE HIGH COURT OF JUSTICE, CHANCERY DIVISION Case No. CH1986 M 7710
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
The Author's Friend: Richard Charkin at the London International Book Fair, 1994
For detail of Charkin's 1988 departure from OUP, go to Falasha in the Pan, Dogwag & Ratify, Private Eye, Macho Man and Michelin Man. For ancient history see I want Your Job.
MR R. D. P. CHARKIN - affirmed.
MR R. D. P. CHARKIN examined by MR WARBY
Warby: My Lord, Mr Charkin's statement is at page 63 of blue bundle C and I would ask that it stand as his evidence-in-chief.
Mr Charkin, would you look at the blue bundle, page 63. Have a look at page 66, would you? And confirm that that is your signature at the bottom?
Charkin: Yes.
Warby: My Lord, I do not have any further questions to ask Mr Charkin.
MR R. D. P. CHARKIN cross-examined by MR MALCOLM.
Malcolm: Mr Charkin, if I could refer you to the first sentenee of paragraph 3 of your witness statement, page 63 - "Editors commission a book". I take by that sentence that you mean that when an author enters into any sort of relationship with a publisher over a book, that they do so with an editor; that all negotiations that an author has with a publishing house or company are handled through the editor.
Charkin: Not all, but the great majority,
Malcolm: The vast majority. That seems to clear up any lingering doubts there might be about the authority question. You go on to say that...
Charkin: There may be a misunderstanding, my Lord. I was not talking about...
Lightman: Can I say right away, questions of authority in fact do not arise in this case, for the reason that there is no defence raised on authority. That is the reason I let that observation by Mr Malcolm stand. Do not treat that as though it is a matter for your evidence. I just do not interrupt unless I think it is necessary.
Charkin: Thank you, my Lord.
Malcolm: If I can go on further down that paragraph you talk about the Publishing Proposal Form that we know about:
"...and that form is taken to an editorial meeting at which editors, sales and production staff and the publisher are present."
And so on. Those editorial meetings... We have already been told today, I think, that the strict title is Publications Committee meetings. Is that correct? Or is there a distinction?
Charkin: I would not draw a distinction. I cannot remember.
Malcolm: Were the editorial meetings to which you are referring here sort of regular, say weekly, occurrences?
Charkin: Yes, I believe so - for the General Books Division.
Malcolm: Mr Charkin, you left the Press in 1988, I believe. Is that right?
Charkin: Yes.
Malcolm: Were the procedures you are outlining here still in operation when you left?
Charkin: Yes, more or less. There was a distinction - the General Books Division came from London to Oxford about 1976. They carried with them a different set of routines to the ones we had in Oxford, so there was a gradual transitional phase. We are talking about 1985; I should think most of that was over, but there may well have been a few changes since to bring it into line.
Malcolm: I was just asking that question to see how good your recollection would be of those meetings, and whether we are talking about memories that are five years old or ten years old.
Charkin: In this case it is five years old.
Malcolm: Can you say specifically that they occurred at a certain place or time each week?
Charkin: Remember I was in charge of the Academic and the General, and Journals and Music and a few other things, so forgive me if I do not get it absolutely right. But my recollection is that the General Books editorial meetings were on Wednesdays, and I think they were immediately after lunch, and that was a fairly regular thing. I think it was Wednesday.
Malcolm: At these editorial meetings or Publishing Committee meetings or whatever they were called, on Wednesdays, everybody got together, the editors brought their Publishing Proposal Forms and so on and they were discussed and it was decided which were to go forward to the next stage and which were not?
Charkin: Yes. Just to get a matter of emphasis correct, if my memory serves me right that was a less important function of that meeting than the establishment of print runs and prices of books which had already been accepted, which was far more important.
Malcolm: These important decisions were presumably recorded somewhere in some way?
Charkin: No, I tried not to. It was part of my view that we had far too much paper in the organisation, and that wherever possible we did not keep minutes.
Malcolm: You did not keep minutes of those meetings?
Charkin: Certainly - I do not know what happens now and I cannot speak for any particular time and I cannot remember exactly. I do not remember seeing minutes of this particular meeting, and it certainly was the general instruction that there should not be minutes. Particularly as I attended that meeting, I should think the chances of them doing minutes - they might on occasions have done minutes for particular meetings because they just felt they wanted to, but I would have thought with my presence and my known antipathy to a lot of paper I would think it is very unlikely.
Malcolm: I had not actually got on to a particular meeting.
Charkin: Well, I think that answers a general question.
Malcolm: We are talking about 1985 - so in general you did not want minutes to be taken?
Charkin: I did not like anything that resulted in the proliferation of paper.
Malcolm: The decisions about the print runs and the financial decisions you were talking about?
Charkin: Those got done on a separate thing where the Publications Officer, who was the person from the Production Department, took their own notes and then printed the things. We have forms for each title, and on the form it says "Print 2,000" or "Print 3,000" or whatever it would be, and that form would be signed. You did not need a separate piece of paper listing all these decisions necessarily.
Malcolm: This is something other than the Publishing Proposal Form?
Charkin: Yes. There are other forms for all sorts of activities.
Malcolm: I think Mr Hardy refers to a "new copy reprint" form or something, is that probably it?
Charkin: Something like that.
Malcolm: We come to the particular meeting in question, and you mention this at paragraph 9, page 64:
"When Making Names was first presented at the editorial meeting on 17th July 1985 I took the decision to reject it."
Charkin: Yes.
Malcolm: First, you are saying there this was the first time it had come to such a meeting?
Charkin: It was the first time it had come to my attention.
Malcolm: The first time it had come to your attention at all?
Charkin: Yes.
Malcolm: In what form was it presented to the meeting?
Charkin: It was a Publishing Proposal Form. I believe it was not Henry who presented it, because I do not think he was there at the time. Someone presented it anyway, said "This is a popular book on philosophy, and we want to print 2,000 copies" or whatever it may have been, "and we think we can sell it."
Malcolm: But it was not presented by Henry Hardy?
Charkin: I do not think so. My recollection is...
Malcolm: Is your recollection of this meeting fairly clear?
Charkin: Not terribly, but it is as clear as any five-year recollection of mine.
Malcolm: So Henry Hardy was not at the meeting to the best of your recollection?
Charkin: My recollection is that he was not.
Malcolm: Who did bring the Publishing Proposal Form?
Charkin: I cannot remember. It may have been Will Sulkin. It may have been Nicola, or any one of the other editorial staff there.
Malcolm: There is a name that has cropped up somewhere - Angus Phillips.
Charkin: It could have been Angus. I honestly cannot remember now. It was not particularly relevant because the key thing was it was a Henry book, which is what I do remember.
Malcolm: What came with the Publishing Proposal Form?
Charkin: I think nothing, that I can remember.
Malcolm: Not anything? Not a draft Delegates' Note? Not the manuscript?
Charkin: I am pretty sure I did not see the manuscript till after the meeting.
Malcolm: A synposis?
Charkin: No. Well, there may have been. Maybe the file was there, in which case there was probably a copy of the synopsis in the file. I would not like to go on oath and say I had seen the synopsis or I had not, because I cannot remember.
Malcolm: Then we have the sentence:
"I took the decision to reject it."
And you took that decision on the basis of what evidence concerning anything about the book?
Charkin: Profitability, quality and authorship.
Malcolm: That brings us on to the other point. Here is a contradiction that I cannot for the life of me understand. Perhaps I can ask you to explain it. Just above that paragraph, at the end of paragraph 8, you explain this colour coding system. Red means that a book would not be profitable. Amber means that a book would not be unprofitable. And green, which means that a book would be profitable. Right?
Charkin: Yes.
Malcolm: I have seen the original of the Publishing Proposal Form and red and amber are crossed out.
Charkin: Yes, it went forward as a green proposal.
Malcolm: That means it was green for profitable.
Charkin: That is what the form says, yes.
Malcolm: And that is all you had to go on?
Charkin: My view, and as the senior publisher present my view actually had some authority - my view was that the calculations were based on fallacious assumptions. A book is not born green. Someone makes guesses as to sales and its likely price and the likely overhead that it will attract. And people make their best guesses. The reason it goes to the editorial meeting is that at that meeting other staff than the editors - who are typically the people who fill those forms in - with more experience of selling, publicity, production and suchlike, and perhaps more experience as well, have their views. That form went forward to that meeting as if it were a green proposal. My contention, and my first reason for rejection, which was profitability, was that the numbers that were put in there were unrealistic for a book of that sort.
Malcolm: Of what sort?
Charkin: The sort we were discussing, a General Book on philosophy.
Malcolm: Yes, but you have in front of you the Publishing Proposal Form. The Publishing Proposal Form does not say...
Charkin: No. As I said earlier, it was presented by someone who described what the book was about.
Malcolm: You cannot remember who it was except to say it was not Mr Hardy.
Charkin: I am pretty sure, for reasons that may become clear later, that it was not Mr Hardy.
Malcolm: If it was Angus Phillips who presented it - who is the most likely candidate as he is apparently the person who filled in the Publishing Proposal Form, what is his status at the Press?
Charkin: I think he was an assistant editor.
Malcolm: An assistant editor? In what particular field?
Charkin: In General Books.
Malcolm: In General Books. Did he have any particular academic specialism?
Charkin: No, this was a meeting of the General Books Department. The point of the General Books Department is that they are general.
Malcolm: So any account that was given of the book was given by an assistant editor?
Charkin: Yes.
Malcolm: Who had what knowledge of it?
Charkin: I would think very limited knowledge.
Malcolm: Where does this leave your criteria?
Charkin: This will all sound terribly self-serving. I am in the business of publishing, and have been in the business of publishing for a very long time. I am not in the horse racing business and I am not in the Stock Exchange. One of the things you learn - and you do not always get it right, you sometimes get it wrong - is you make judgments. My judgment on the market for this sort of book, and I was paid to make this judgment so I do not feel any shame about it, was that it was not going to be successful commercially.
Malcolm: Can I just stop you there because...
Lightman: Just pause there for a moment, Mr Malcolm. Whether this witness's judgment on marketability or profit is right or wrong is not really material in this action, is it? The simple answer is that a decision was made to reject the book. The question that arises in this action is whether that action constituted a breach of contract. I have given you quite a lot of leeway because you are a litigant-in-person, but I really do not think questions as to his views on profitability and whether they were taken on sufficient material or not really is a matter on which you should spend time.
Malcolm: Correct, my Lord. I will move on.
Did you then contact Mr Hardy on 17th July, perhaps sfter the meeting?
Charkin: Certainly I spoke to him after the meeting. I cannot remember whether it was 17th July or the following day.
Malcolm: And what did you say to him?
Charkin: At that point I did not say anything to him. I think that he probably came to see me because once the book had been rejected at that editorial meeting, normally speaking the next thing that would happen would be that a letter of rejection would go to the author in a straightforward way and that is the end of the story. In this case he came to me and said, "I really do want to do this book" or words to that effect.
Malcolm: Could you just repeat that?
Charkin: He would really like to do this book.
Malcolm: This was on 17th July or about that time?
Charkin: Yes.
Malcolm: "I really would like to do this book"?
Charkin: I am sorry. Look, do not quote me verbatim!
Lightman: The substance of it was that he wanted the book to go ahead?
Charkin: The substance was certainly true, but I would not like that to go down verbatim.
Malcolm: And what did you then say to him?
Charkin: I said "I disagree with you, Henry", or words to that effect.
Malcolm: Did you ask to look at the manuscript?
Charkin: I looked at the file and I think the manuscript came with the file. A few things about the file filled me with horror and actually confirmed that my original judgment was probably correct. First, was already the length of letters and things and suchlike, that was one thing that rather worried me.
Lightman: The length of the letters?
Charkin: Of the correspondence. One of the criteria is that we try to keep our overheads down and authors who are longwinded and take a lot of time actually sometimes are not worth publishing, however good the book is. That was one aspect. Secondly, there was a little note, as I remember, from the Philosophy Editor to Henry Hardy, which said something like, "God, this is awful but, Henry, you might like to see it before it is rejected", or something - I cannot remember.
Malcolm: Could I perhaps at that point interrupt, my Lord, and ask Mr Charkin to turn to page 56 in the red file?
Charkin: That is not the one I am referring to. There was one from Angela Blackburn; there is that one as well. It was a note from Angela Blackburn probably on a tiny piece of paper, a yellow slip or something. She was the Philosophy Editor at the time. She said that she did not like it. The other thing I remember noticing was a rejection slip or rejection thing, something to do with a rejection from Penguin, and I honestly did not feel that it was a job for the University Press to publish those books which Penguin had rejected. So anyway, the answer to your question as to whether I looked at the manuscript is that I cannot remember the exact manuscript, but certainly I looked at the file and probably had the manuscript in my office. I reviewed things and it was not such as to make me think that I should change my mind.
Malcolm: Could I refer you to page 17 of the red file. Is that the note from Angela Blackburn?
Charkin: No, that is not a note from Angela Blackburn. That is a letter from Henry Hardy [mentioning Angela Blackburn], unless I am looking at the wrong page.
Malcolm: Page 17 of the red file.
Charkin: It says: "Dear Mr Malcolm" and is signed Henry Hardy.
Malcolm: Oh yes, I beg your pardon, you are quite right. So there was a note on the file from Angela Blackburn? That is another document that appears not to have turned up.
Charkin: I mean honestly, this was probably a little pink slip. This is a totally informal matter and it was probably a transmittal slip or something like that, which said, "To Henry Hardy, from Angela Blackburn. Here is a load of rubbish", or words to that effect, and there you go. It might not have been filed any further for all I know. I think you are making more of this than is actually the case. The point is that I looked at the material and there was nothing to make me change my mind.
Malcolm: Did you see a letter or a copy of a letter form Henry Hardy to me, the original of which you will find at page 45 of the red file?
Charkin: I suppose so, because this would have been in the file. It predated...
Malcolm: It would have been on the file?
Charkin: Yes, I think so.
Malcolm: Could you just read it for a moment?
[The letter of 21st May 1985 from Hardy to Malcolm, reads, inter alia: **"I'm pleased that we are going to do your book and hope that it's a terrific success. As said, do get in touch if you have any queries as you work through it."**]
Charkin: Yes. It was at that point that it was clear that...
Malcolm: Before you shut the file could you move on and you will find that all the following letters - presumably including the Author's Publicity Form, Mr Hardy's letter of 14th June, page 53, and the Publishing Proposal Form - will have been on the file?
Charkin: Yes.
Malcolm: You saw all that?
Charkin: I would think so.
Malcolm: And then what did you say to Mr Hardy?
Charkin: This is not verbatim, this is trying to give you a recollection. The conversation with Mr Hardy was, it looks like he has encouraged the author more than I think is appropriate before a book had gone to the Delegates.
Malcolm: Did you ask Mr Hardy if the book had gone to the Delegates?
Charkin: It could not have gone to the Delegates because it had not been through the editorial meeting.
Malcolm: Was there, in the file, a Delegates' Note or a copy of a Delegates' Note?
Charkin: Well, a draft Delegates' Note, which we normally did before we put a book to the editorial meeting, because there is usually a time constraint.
Malcolm: Was it the document at page 59 in the red file?
Charkin: I suppose so, it looks like the Delegates' Note.
Malcolm: What is the date on that paper?
Charkin: 16th July 1985.
Malcolm: And the meeting you were having with Mr Hardy is on 17th or possibly 18th July, is that right?
Charkin: Yes.
Malcolm: I will leave that point for the moment and ask you, what did you say about this to Mr Hardy?
Charkin: I have to say I was extremely angry.
Malcolm: Why?
Charkin: Because I felt that he had, as I said before, encouraged an author more than he should have done, prior to a book going to the Delegates.
Malcolm: Could I refer you, Mr Charkin, to the letter you wrote to Mr Hardy on 18th July. It is at page 65 in the red file. I do not see any reference in that letter - which as I understand it is the serving upon him of a Stage 3 Disciplinary Warning preparatory to dismissal for breach of procedures - to the Delegates.
Charkin: No. What I say is that you have given a written indication to an author that OUP would publish his book. OUP publishing a book requires a Delegates' approval. It is implicit to anyone who works at Oxford University Press. I have to say that when I wrote this letter it was not with a view to having it going through semantic or analytical dissection in a courtroom. It was a normal managerial letter.
Malcolm: Yes, but I repeat, Mr Charkin, that just now when I asked you the question "What did you say to Mr Hardy", you said something like - and this will not be verbatim either - "I am very angry that you have gone this far with an author prior to receiving the Delegates' approval."
Charkin: No. Which is our editorial procedures and OUP publication, which is entirely implicit. Our editorial procedures involve authorisation by an editorial committee and me or the publisher, as then was, and then by the Delegates.
Malcolm: Say that again, please.
Charkin: Our editorial procedures - to quote from that letter - includes our editorial committees, the signing of forms and the ultimate approval of the Delegates. That is what editorial procedures are.
Malcolm: And you saw that they had been flouted in this case?
Charkin: Yes.
Malcolm: Did you ask Mr Hardy whether he had sent the Delegates' Note?
Charkin: No.
Malcolm: Yet it was on the file?
Charkin: Yes, but it was frequently, as I just said, that the Delegates' Note was done in draft before the meeting because we were on time scales and all the rest of it.
Malcolm: This does not look like a draft to me, Mr Charkin.
Charkin: Well, it is a draft.
Malcolm: This document at page 59 or 60 whichever it is - that is a draft, that is not a final Delegates' Note?
Charkin: Well, it would be exactly the same as a Delegates' Note because it would then go off. By a draft I mean something that did not have approval. Because it did not have approval it would not have gone off. I would not have asked whether it had gone off. If you could explain to me what you are trying to find an answer to, I may be able to answer the question.
Malcolm: What I suggest, Mr Charkin, is that as you correctly affirm, when you saw Mr Hardy and looked through the file you saw the correspondence, the Publishing Proposal Form and the Delegates' Note, not the draft Delegates' Note. This is a Delegates' Note.
Charkin: It is a draft until it goes.
Malcolm: The natural conclusion would have been that it had been sent.
Charkin: The natural conclusion is that nothing gets sent to the Delegates unless it has been approved by the editorial meeting. As I turned down the book at the editorial meeting, there was absolutely no chance that it would go to the Delegates.
**Malcolm:**But I thought your point was that the reason you were angry with Mr. Hardy was that he had flouted the procedures?
Charkin: He had raised the expectations of an author unfairly and, as it happens, we care, we still care at OUP and I still care and we cared then, about authors.
Malcolm: What I am driving at, Mr Charkin, is that Mr Hardy's flouting of the procedures, the gravest sin in your eyes that he had committed, was the sending of this letter to all the Delegates.
Charkin: No, that did not go to all the Delegates.
Malcolm: How do you know? You did not ask him.
Charkin: Well, I am sure that in the five years that have been between then, if it had gone to the Delegates we would have found out by now. I do not know what you are trying to imply. This is most ridiculous. I have sworn on oath...
Lightman: Can I just get this clear. As I understand it, what you are suggesting, Mr Malcolm, is that the complaint being made here by Mr Charkin in the letter of 18th July is that Mr Hardy had circulated the Delegates without the approval of the Committee.
Malcolm: Correct.
Lightman: The answer given by the witness is that that was not the subject matter of his complaint.
Malcolm: I accept that, my Lord, but...
Lightman: You may also tell him that you do not accept that, but the critical difference between you and the witness is that you are saying to him that the complaint is that "you have circulated the Delegates"; his answer is "That is not the point I was concerned with; I was concerned with the fact that encouragement had been given to the author without the approval or the decision of the committee meeting" and also, presumably, a decision of the Delegates.
Malcolm: Yes, my Lord. I would just note though that Mr Charkin had earlier said that he did not ask Mr Hardy whether the Note had been sent or not.
Lightman: Yes, I have that point. You have in mind the letter says:
"I confirm the gravity of the situation whereby you gave a written indication to the author that his book would be published."
That, as I read the letter, is the gravamen of the complaint made by Mr Charkin in that letter.
Malcolm: Mr Charkin, you say that you are sure that the Delegates' Note did not go, was not posted?
Charkin: Well, I am sure if it had gone, that would have come to light. At the time I would have been absolutely overwhelmed with surprise had it gone, because it would have been one more nail in Henry's coffin, if I could put it that way. But also, if it had gone, between then and now it would have come to light that it had gone, and it certainly has not. If it had gone, it would have gone to the Delegates, it would have been on an Agenda - which it certainly was not - and it would have been discussed by the Delegates, and it certainly was not.
Malcolm: So you are certain it did not go to the Delegates?
Charkin: Absolutely so.
Malcolm: Absolutely so?
Charkin: Absolutely so.
Malcolm: You are still, today, absolutely certain?
Charkin: Yes.
Malcolm: Could I refer you to paragraph 11 of your witness statement? The last sentence reads:
"I don't know if this particular note was forwarded, but I don't think it was."
Charkin: That is right, but I am absolutely certain that it did not go to the Delegates' meeting, which is a different point...
Malcolm: I will pass on, my Lord, to page 64 of the red file. Now, Mr Charkin, that is a letter from Alan Ryan to Henry Hardy reporting a conversation that Alan Ryan had had with you on the morning of 18th July. You must have known from what Mr Hardy told you, that Alan Ryan was the Delegate who was backing the book.
Charkin: Absolutely. In fact I believe - I cannot remember - that I rang Alan. I think that I instigated this phone call.
Malcolm: You instigated the phone call for what reason?
Charkin: I think I did. I would not swear to it, but I think I did. Anyway, I certainly knew Alan Ryan was the person backing the book, yes.
Malcolm: So, on 17th July at this editorial meeting where you decided to reject the book, on the morning after you phoned the Delegate, or he phoned you?
Charkin: I do not know whether it was the morning after or the afternoon after.
**Malcolm:**Well, I have a transcript of Mr Hardy's that tells me it was the morning.
Charkin: Yes.
Malcolm: And you spoke to him about it and you gave him the impression - I refer you to the last paragraph - that Mr Ryan, or we, "can gallop ahead as he suggested we could."
Charkin: I think that "gallop ahead" was a reference to the proposal which then followed - I cannot remember the exact thing - I wrote to you on 18 July rejecting the book - yes?
Malcolm: Yes, I remember how concerned you are about...
Charkin: I am just trying to get it in order. "I made it perfectly clear to you that it is a reject but that if you revised it we would be willing to consider the book", or words to that effect - "reconsider the book", and apologising for "the unnecessary raising of your hopes."
Malcolm: I am still on page 64 of the red file. I must stop you, Mr Charkin...
Charkin: Can I please answer your question.
Lightman: Let the witness finish his explanation.
Charkin: Thank you, my Lord. I do have to refresh my own memory. I wrote to you saying that both Henry Hardy and Alan Ryan, as I recollect, were worried about the decision.
Malcolm: Worried about your decision?
Charkin: Yes, and the decision to reject the book. One of the reasons was that Henry referred me to a call he had had from you, or with you, which said that you were sounding really terribly fraught, terribly distracted and he was actually worried about what damage you might do to yourself in the circumstances. Secondly, Alan Ryan was worried about the decision lest he thought that I was trying to be an amateur philosopher. He was a philosopher. I was not meant to be a judge of philosophy, which I absolutely agree with. The proposal was that Henry should write a letter - I think Henry himself proposed it, or Alan proposed it, I am not sure who - to you, which softened the blow in some way and gave you an opportunity to revise the book if you so deemed. That is what Alan is referring to, I think, when he says we can gallop ahead.
Malcolm: Could I just go back to your witness statement now, Mr Charkin? Leaving all that aside, your general account on the first two pages of your statement about the procedures, and there is a sort of Catch-22 here or some kind of situation that needs a little bit of explanation, and that starts at the last sentence of paragraph 6 from over the page:
"Every book that is published must be accepted by the Delegates first."
That seems to be established.
Charkin: It is not my... That is the University's rules.
Malcolm: Yes. And you describe the procedures and everyone seems to be asserting that the book never went to the Delegates, and we get to paragraph 9, and you say:
"I took the decision to reject it."
Charkin: Yes.
Malcolm: You have a sort of power of veto before the book gets to that stage, is that right?
Charkin: Yes. With one exception. Senior members of the University, if their books were submitted, they had to go to the Delegates before they were rejected. But other books were not subject to that.
Malcolm: Okay.
Charkin: Indeed, I should add that there is always a degree of sensitivity applied. I mean, if the Vice-Chancellor of Cambridge were to submit a book, I suspect that we would do that person the courtesy of a full Delegates' meeting. But we could not do it for everyone, because otherwise the Delegates would never ever do any professorial activities. They would be in meetings constantly.
Malcolm: We seem to be quite clear then that you took the decision to reject it; it never went to the Delegates.
Charkin: Absolutely.
Malcolm: Could I now refer you to page 127 of the red file, second paragraph, second sentence:
"In my letter to you I did not make it clear that I would not authorise the book's publication, however it was revised. That decision is not mine; it is the Delegates' of the University Press."
Charkin: If it were to be published, it would require their authorisation. That is their decision.
Malcolm: But you say in your witness statement you took the decision.
Charkin: To reject; not to accept. There are so many "nots" in that extremely badly written sentence - which I wrote - that I cannot quite work out what is going on. Certainly the intent of that is that they have the sole right to accept.
Lightman: Your agreement to publish is necessary but not sufficient?
Charkin: Yes, exactly.
Malcolm: I suggest that "not" is spelt with a "k"! You just now, Mr Charkin, disavowed any qualification to pass judgment on philosophy books. You took a judgment to reject this one simply on the sight of the Publishing Proposal Form.
Charkin: I thought we had already agreed that...
Lightman: I think what the witness said is that he would not be in a position to judge a book on philosophy grounds, but he may be able to judge it on commercial grounds. Is that a fair?
Charkin: Absolutely.
Malcolm: But I just wonder where again this leaves his three criteria mentioned in paragraph 9?
Lightman: The reasons why he rejected it in terms of his own evaluation of the book are not really relevant, are they?
Malcolm: No, my Lord. I think we have come to the end. I might just finally refer Mr Charkin to paragraph 13, where he concedes:
"It was quite apparent to me that an author's hopes had been raised."
I just wonder whether your Lordship has any question on that aspect?
The only other item to which I would refer Mr Charkin is not in evidence, my Lord, but it is an extract from an article in The Bookseller of 29th September 1989, where Mr Richard Charkin is quoted as saying:
"If the publishing industry wants to do something constructive, it should organise courses on negotiating contracts."
I think that is one point on which I would agree with him. No further questions.
Charkin: May I just respond to that? The context of that is entirely inappropriate...
Lightman: I would not worry. I do not think it really affects us on this.
MR CHARKIN questioned by MR GAVIN LIGHTMAN
Lightman: There is one point that I want to put to you. Could you take the red file? In your letter of complaint to Mr Hardy you complained about him encouraging an author and committing the University to an expenditure of, I think �5,000 or whatever the figure is. He writes back to you. The disciplinary proceeding is set in motion and then it is abandoned. You write to him at page 91. Would you like to read it to yourself first?
(Pause)
Now, I do not understand at the moment the meaning of the first sentence of the third paragraph.
"If we were to tighten up the procedure such that matters like this could be seen in terms of black and white I feel we would lose more than we would gain."
Charkin: It was to do with the timing. In general publishing, particularly where you are dealing with literary agents - as you sometimes do, not in this case but sometimes - you actually have to think on your feet to a greater extent. Obviously in those cases one would try to get the Delegates on your side 100 per cent before you went ahead. So one of the arguments at the disciplinary appeal was, "Well, we were doing our thinking on our feet". If that is totally illegal, then it should be made clear that we should never encourage. I mean I was complaining they were encouraging too much, and the argument was, "Well, you have to encourage a certain amount", and I agree.
Lightman: Is there a distinction between encouraging and giving a commitment?
Charkin: I think there is a distinction, but it is a very fine distinction.
Lightman: But what you are saying here, as I read the paragraph, is that you cannot lay down an absolute firm rule that you cannot give encouragement in particular cases.
Charkin: Exactly. But encouragement does not necessarily mean a contract. What I am saying is that you must not - you cannot write a rule which does not raise an author's hopes, it is true. In this case I believe Henry did raise an author's hopes, but I do not think it was a question of rules; it was too much; he raised them too much.
Lightman: Presumably in any case you could raise their hopes that you are likely to get the Delegates' approval if you spell it out expressly?
Charkin: Exactly, yes.
Lightman: The anxiety is the raising of hopes and expectations without indicating that that is the barrier yet to be overcome.
Charkin: That is right.
Lightman: But how far in relation to that does this paragraph apply then, this sentence in your letter? Are you saying that even without any reference to the Delegates' approval you can raise hopes in particular cases?
Charkin: Yes. I think you have to say that in publishing or you would never make any progress.
Lightman: Does that mean that you could give a commitment to publish on occasion if it was necessary, without the Delegates' approval?
Charkin: No, I do not think you could. You could say something like, "I would like to publish this book very much and I will do everything possible to get it through the Delegates"; and "My track record of getting things through the Delegates is very good", you might say.
Lightman: Are there any further questions you wish to raise?
Malcolm: No, my Lord.
Warby: I have no re-examination, my Lord.
Lightman: I am grateful for your help.
Witness released
Go back to the top of this file or proceed to the courtroom testimony of Henry Hardy.
For detail of Charkin's 1988 departure from OUP, go to Falasha in the Pan, Dogwag & Ratify, Private Eye, Macho Man and Michelin Man. For ancient history see I want Your Job.
Go to Malcolm's Statement of Claim, to the Case History, to the Affidavits: Ivon Asquith (1); Asquith (2); Henry Hardy; William Shaw (solicitor) (1); Sir Roger Elliott (1); Margaret Goodall; to the Witness Statements: Elliott; Hardy; Richard Charkin; Nicola Bion; Goodall, to the courtroom testimony of the Oxford Six, 14/3/1990: Elliott; Goodall; Bion; Asquith; Charkin; Hardy, to the testimony of Andrew Malcolm 13/3/1990, to the CHANCERY COURT JUDGMENT, to the Cambridge package and the Adrasteia package, to the publishing contract affidavits: Giles Gordon (1); Mark Le Fanu, to the APPEAL COURT JUDGMENT, to the damages affidavits: Alan Ryan; Asquith (3); Jeremy Mynott; Giles Gordon (2); Fred Nolan; Roy Edgley, to McGregor on Royalties (transcript), to the DAMAGES FINDINGS, and to the Settlement agreement.
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