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

Elliott photo

Lord Otiose: Bookseller photo of Sir Roger Elliott, 1993

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SIR ROGER ELLIOTT examined by MR MARK WARBY

Warby: Would your Lordship direct that, as was the case with Mr Malcolm, Sir Roger's statement stands as his evidence-in-chief?

Lightman: Which statement will this be? Will it be the statement at page 54?

Warby: This is the statement at page 54.

Lightman: Are there any further matters you want to ask him?

Warby: My Lord, there is just one matter arising from Mr Malcolm's statement and the evidence that he gave yesterday.

Warby: Sir Roger, in front of you you will see a red bundle, a red file marked B. Could you turn to page 72 - the numbers are in the top righthand corner of the page - and you will see there the agenda for a meeting of the Delegates of the Press, on 23 July 1985. On page 72, the eighth entry under part 1 "General Publications" - do you see that?

Elliott: Yes.

Warby: Would you then look at page 80 of the same bundle and again the eighth item on that page with the heading "General Publications":

"Reference to the proposal for the New Oxford Book of Modern Verse; Concise Dictionaries of Physics, Chemistry and Biology..."

and then the last sentence:

"...the other titles tabled were approved."

Do you see that?

Elliott: Yes.

Warby: Mr Malcolm has suggested that there was an agenda, or some other document, for the meeting on 23rd July which listed all the general books which were to be considered at that meeting; would you comment on that suggestion?

Elliott: No there was not. The pattern of Delegates' meetings at that time was that books like General Publications, College Publications and Education, ELT Publications, which associate them, were not listed on the agenda, but with the package of papers which the delegates received there was a page for each book to be considered. The normal procedure was for the Minutes to record, as they do now, that the titles tabled were approved - that is to say, the ones which appeared on the sheets - unless there was some specific comment as in this case happened with the books in question "The New Book of Modern Verse" and the Concise Dictionaries.

Warby: My Lord, those are the only questions that I wish to ask Sir Roger Elliott.

SIR ROGER ELLIOTT cross-examined by MR MALCOLM

Malcolm: Sir Roger, you state in your witness statement - the blue bundle, page 54

Elliott: I have it here.

Malcolm: You might like to number the paragraphs. It is 1, 2, 3 on the first page, 4, 5, 6, 7, 8 on the second page and 9 on the third page. In paragraph 2 you say you have been a Delegate of the Press since 1971.

Elliott: I was, from 1971 to 1988.

Malcolm: And you have been Secretary to the Delegates since 1988?

Elliott: That is right.

Malcolm: I am slightly mystified by your inclusion of this description of the functions of the Finance Committee, but am I right in assuming that you are the Chairman of the Finance Committee?

Elliott: I was for part of the time while I was a Delegate.

Malcolm: From what time?

Elliott: To be honest, I cannot remember, but I would guess from about 1976 until the end, till 1988.

Malcolm: I understood - I have a cutting from the Oxford Times - you were Chairman since 1975 of the Finance Committee. Is that right?

Elliott: 1975 might well be right. I said approximately 1976 just now.

Malcolm: So I presume that your knowledge of all the Delegates' practices and procedures is pretty much second to none. Would that be right?

Elliott: I would not like to claim that, but I do know, I think, most things about the Delegates' procedures.

Malcolm: Are you, as a matter of fact, the most senior and the longest serving Delegate?

Elliott: I am no longer a Delegate, but by the end of my period I was the longest serving, yes.

Malcolm: Now, at paragraph 9 in your witness statement, the very last paragraph, the second sentence - you have just repeated, I think, for Mr Warby:

"At that time, it was not the standard procedure for every general book title considered to be listed, although that is now the case."

Can you tell me what year the procedure changed?

Elliott: I am sorry, I cannot.

Malcolm: You cannot.

Elliott: No. The fact is, I was a Delegate, as you see, for 17 years. I suppose I attended at least 200 meetings during that time and 10,000 books or so. One's memory of individual matters is rather blurred.

Malcolm: It is not an individual book that I am at the moment interested in, Sir Roger, it is the procedure. You have stated very clearly here that the procedure concerning the listing of books changed between 1985 and the present. Now that seems quite an important change of procedure to me. I would have thought that you would have been able to put a precise date or term on it perhaps.

Elliott: I am afraid that I cannot.

Malcolm: How can you be sure then, Sir Roger, that the procedures that are in force at the moment were not in force in 1985?

Elliott: I could not have been so sure if I had been asked out of the blue, but having refreshed my memory from the papers in front of us - that is to say the Agenda and the Minutes - it is clear to me that the change took place between now - when I know that they are listed - and 1985, when I see from the papers in front of me that they were not.

Malcolm: I am getting more mystified by the moment. You have just explained to Mr Warby, as I understand it, that - going back to page 80 of the red file - these entries were... for example under College Publications it says:

"The list of titles tabled was approved."

In fact by the word "list" you were not meaning list, you were meaning bundle of papers.

Elliott: That is right.

Malcolm: Now, if you were consulting this document to refresh your memory as to when the procedure changed, I would have thought that the natural conclusion would be, seeing the word "list" would lead me, anyway, to presume that the procedure at that time did involve lists.

Elliott: I was not consulting the document to see when it changed. I was only consulting the document to remember what it was like in 1985.

Malcolm: Well, when I consult the document to discover "what it was like in 1985", I see the word "lists" under College Publications, Educational Publications...

Lightman: You say that you consulted the document to see what it was like in 1985; what was what like in 1985?

Elliott: How General Publications were then listed and dealt with on the papers.

Malcolm: You just used the phrase "listed and dealt with".

Elliott: Yes. Well, the answer is they were not listed and the Minutes dealt with them in the way that I have described. Namely, if the titles went through and the Delegates approved them without change or comment, it was just recorded in the Minutes that they were approved. If there was comment, those comments were recorded.

Malcolm: We will come to those points later if we may, Sir Roger, but for the moment I am baffled by the appearance, on page 80, of the word "list", under several headings. You have just told us that you do not know when this procedure of change from non-listing to listing took place, you cannot remember when it took place. You have consulted these documents to refresh your memory. I consult them and I see the word "list" cropping up but you have concluded from that that they were therefore not listed at that time.

Elliott: That is right, because they would have been listed in the form that the academic proposals are now listed, namely, that they would have formed part of the Agenda paper. They are not in the Agenda paper.

Malcolm: I was going to come to that, Sir Roger. If we can go back for a minute to the Agenda on page 72. For example, we have on page 76, the end of part II and the heading to part III says:

"Proposals listed for information"

and on page 6 there is the word "listed" again "for information". I am looking at pages 76 and 77. I am just noting the word "list" or "listed" appearing in the headings, and it carries on. Now, Sir Roger, how would you describe the Agenda papers we have, obviously the front page of which is the Part I and then pages 73 to 79. How would you describe the latter pages?

Elliott: I suppose they are a list of books for consideration.

Malcolm: They are lists of books, are they?

Elliott: Yes.

Malcolm: I cannot ask again, I suppose, but I wonder whether this more detailed look at the papers is refreshing your memory in any other way. Does it lead you to conclude that perhaps you are mistaken?

Elliott: No, I am not in the least mistaken. As you said earlier, I have attended many Delegates' meetings and the standard procedure was that books in these categories - and indeed it is still true for books from overseas - no list of the titles appears on the Agenda paper, but individual sheets associated with those titles are sent to the Delegates.

Malcolm: And bundles of individual sheets are described in the Agenda paper as "lists"?

Elliott: That is described, as you point out - perhaps not entirely appropriately - as a list.

Malcolm: Would it not be more logical - this is not just a semantic point - that if it was the case that in 1985 general books appeared at the meeting in the form of a bundle of separate papers, one for each book, that if they were all approved, the entry in the Minutes would read, "the titles tabled were approved"?

Elliott: That would be perhaps a clearer way of writing the Minutes, but the fact of the matter is, they were normally written in this form.

Malcolm: Well, I think we will have to leave that there. Or no, maybe we do not have to leave that there. If I may ask your Lordship, I believe that the Defendants have brought to the courtroon a bound volume called "The Orders of The Delegates of Oxford University Press 1983-1988". I wonder if your Lordship would like to just look through. I think that goes up to 1988.

Lightman: I would prefer you to tell me what it is that I am supposed to look at and that Mr Warby should see it before I do.

Malcolm: Well, I am only guessing, but I would suggest that if you look under, looking at the front page of the most recent...

Lightman: The appropriate procedure to be followed is that before I see anything I want Mr Warby to see it first. So if you indicate to Mr Warby what you want me to see, let Mr Warby see it, then I will look at it.

(Pause while the Minute Book is examined):

Lightman: Yes, I have got 19 January 1988. There is a reference to the list of titles in respect of General Publications which were approved. Do you want me to make a note of that?

Malcolm: Yes please.

Lightman: And, in relation to 2 February 1988, under "General Publications", "the title tabled was approved". Is that what you want me to take a note of?

Malcolm: Those three entries, yes please, my Lord.

Lightman: There are two there. "General Publication, the title tabled was approved" and "the ELT titles tabled were approved". Can I just suggest that if this is going to form part of the evidence, photocopies of these two pages should be made and perhaps they can be added to the bundle of documents. Can I leave that to you, Mr Warby?

Warby: Yes.

Lightman: Do you want the witness to see these?

Malcolm: Yes please.

(Sir Roger Elliott looks at the Minutes)

Malcolm: Sir Roger, it seems to me clear from those entries that now, as then, sometimes the entries mentioned "lists" and sometimes they did not. Sometimes they do not, sometimes they do. Sometimes the entry is, "the titles tabled were approved", sometimes the entry is, "the list of titles tabled was approved."

Elliott: That seems to be the case.

Malcolm: That seems to be the case. I suggest that there has been no change of procedure.

Elliott: Well, I do not quite know where this is leading to, but the fact is, during the period in question - as you can see from the Agenda paper - the General Publications were not listed on the Agenda paper.

Malcolm: Exactly.

Elliott: And they were not listed anywhere else.

Malcolm: Could I just take another example. Going back to our document at page 80 of the red file and just turning our attention down from the General Publications entry for a second, say Educational and ELT Publications in front of you and just abbreviate that to Educational Publications. There is an entry there:

"The list of titles tabled was approved"

Now, in your opening evidence elicited by Mr Warby, you stated that in fact Educational Publications came to that meeting in the form of a bundle of separate papers.

Elliott: Yes.

Malcolm: ...and that there was no list.

Elliott: No.

Malcolm: Do you still assert that?

Elliott: I do.

Malcolm: But you said earlier that you had to look through the Minute Book "to refresh your memory as to when the procedure changed."

Elliott: Yes.

Malcolm: Yet, as I think I have just demonstrated, if you look back through the Minute Book you see the word "lists" here and there, and you see the phrase "titles tabled" here and there; in other words the procedures have not changed. Sometimes the titles are listed, sometimes they are not. But when it says they are listed, there was a list.

Elliott: Well, I am afraid that is just not the case.

Malcolm: But it is now?

Elliott: I understood that the point of this was your belief that the book in question, your own book, had been considered at this Delegates' meeting and therefore it was important to establish that. Clearly it would have been easier to do that if the publications had been listed, because they would have appeared on the Agenda paper. That was why I was anxious to refresh my memory; because nowadays they are and so it would have been perfectly clear from the Agenda paper whether the papers were in the bundle or not.

Malcolm: So, you are saying that now - or in January 1988 when those entries we have just seen came - when it says "listed" in the entry in the Minutes and "the list of titles tabled was approved", that would have meant that there was a list. The same entry that had been in the 1985 Minutes would have meant something different, namely that there was not a list but there was a bundle of separate papers?

Elliott: I honestly do not think that this matter of whether it is called a list or not is significant.

Lightman: Can you help us on this? You have told us about a change in practice. Is there a list now?

Elliott: Well, they appear on the Agenda paper now. Rather as, my Lord, if you look at page 73, you will see that in 1985 all the Academic books which the Delegates were being asked to approve are listed title by title. From page 73 onwards - page 73 and 74 - the proposals for Academic books which the Delegates are to consider are listed title by title. There would have been, attached to these papers, a sheet describing each of those publications. However, the College Publications, the General Publications, Educational and ELT Publications are not - and indeed OUP USA and other branch publications - listed title by title on the Agenda paper, although there was, in the bundle of papers the Delegates received, a page or an entry for each one.

Lightman: Can you explain why there was a distinction made between those books?

Elliott: The Delegates are most concerned with the quality of the Academic books. They are also concerned because in that case they often have detailed views about the academic value of the matter being covered. In the case of the College, General and Educational Publications, Delegates' approval to publish is also required. But they are mainly concerned only with the overall quality of the publications. In the case of overseas publications as from OUP USA, they are only really listed for information because the branches in overseas offices have authority, within general guidelines, to determine what they publish, subject to retroactive scrutiny by the Delegates. They can then modify the policy, or ask the branch to adhere more strictly to the policy or make comments about a particular title. So although Delegates' authority is required to publish anything from Oxford, the scrutiny given was traditionally, and always has been, greater for the Academic list than for the other lists.

Malcolm: Before we leave that Minute Book, Sir Roger, could I just ask you to look again at those three entries that I have marked in the January 1988 area. I cannot remember exactly which was which. But you are telling us now that the entry where there is a reference to "lists" or "the list of titles tabled was approved", that entry in fact meant what it said; there was a list. Is that right?

Elliott: I think we are getting slightly confused about the nature, or the meaning, of the word "list". The only thing the Delegates ever receive is an Agenda paper which, as I have described, contains some books title by title, but other books only by category. Then it contains individual sheets about these books and whether you call it a list or not seems to me to make it only confusing. That is the fact.

Malcolm: This makes a rather strange mess of paragraph 9 of your witness statement. Can I just read it out to you again?

"At that time it was not the standard procedure for every general book title considered to be listed, although that is now the case."

Elliott: Yes.

Malcolm: You seem to be drawing the distinction between...

Elliott: I meant by that listed on the Agenda paper.

Malcolm: Listed on the Agenda paper?

Elliott: That is what I mean, because that is the only place that they are ever listed.

Malcolm: But I thought that we had established that they are never listed on the Agenda paper; the point was that they come with a separate list.

Elliott: No, no, no, they never come with a separate list.

Malcolm: I thought that was what you were saying.

Elliott: No. Well, if I said that I misled the Court and I am sorry. I have never said that. The only things the Delegates ever receive are the Agenda paper, the Minutes and papers for individual books. And, as I have explained, some categories of books are listed title by title on the Agenda paper, others are not. Nothing is ever listed in any other way.

Malcolm: So you are saying now that as far as the sub-headings in Part 1 of these various meetings, namely the College Publications, the General Publications, the Educational Publications and so on, there never are separate lists? We can see from just looking at page 72 there are no titles on the front page of the Agenda. The question is would those Agenda papers have accompanied other lists?

Elliott: No. There would be papers containing entries for each individual book.

Lightman: Do you mean a separate piece of paper relating to each book, in a bundle, and there would be a bundle of those papers?

Elliott: Yes. There is normally a separate paper relatinq to each book. I was slightly careful about what I said because in the case of Educational and ELT books, often the description is very short because it is just a school book - a grade so and so in mathematics or something like that - so sometimes several appear on the same page.

Malcolm: And sometimes they appear, as they do from page 73 onwards?

Elliott: No, they appear like that only in the Agenda paper. And those, as I say, under proposals for consideration, there was a separate sheet for each book.

Malcolm: So what leads you to suppose, if this was always the case, that normally every book came to each meeting with a separate paper; sometimes, you conceded, there were two or three entries on the same paper - what leads you, by looking back through the Minute Book, to conclude that at some point or other which you cannot remember procedures changed?

Elliott: Because I know what the procedures are now and I remember what they used to be, but I do not remember exactly when the change took place, though it would obviously be quite possible to find out, if it is relevant. I do not understand where we are going.

Malcolm: I confess I am getting more confused myself, but you are saying, though, that now General Books come to the Delegates' meetings listed on a separate sheet.

Elliott: No. They are on the Agenda paper.

Lightman: Are you able to find a reference in the Minutes there?

Elliott: I was looking, but I think these are only the Minutes and not the Agenda papers, are they not?

Lightman: Mr Warby, do you have the Agenda papers?

Warby: We do not have the Agenda papers here at the moment, I am sorry. We did not anticipate that this matter would arise.

Malcolm: Another question - I think we could go on endlessly here - but could Sir Roger tell me, for example - the question, to get back to the point, is whether or not a particular book was tabled at a particular meeting in 1985. Perhaps to keep the controversy out of it we should ask Sir Roger to produce some document that, either in list or bundle form, recorded what Educational publications were submitted to that meeting.

Lightman: We have got to bear in mind what we are really concerned with in this case. The question of what was considered at a particular meeting of the Delegates seems to me, as I have indicated before, of marginal significance in this case. I do not really think that it is necessary or appropriate to go as far as you are suggesting.

Malcolm: Certainly, my Lord. Agreed. So the submission is - I am not quite sure - but I think you are saying, Sir Roger, that in 1985 the Agenda papers for the Delegates' meetings - besides the papers that we have been looking at in the red file, page 72 - included a bundle of what have been referred to as Delegates' notes?

Elliott: Yes, that is right.

Malcolm: A large bundle?

Elliott: A large bundle.

Malcolm: Can you, off the top of your head, name any of the General books that were there?

Elliott: As I have said before, I must have been to meetings which cdnsidered more than 10,000 books. I cannot possibly remember individual titles.

Malcolm: Of course. In which case, by the same token, you cannot remember whether a particular Delegates' note did not appear?

Elliott: No, I cannot.

Malcolm: And there has never been any record of what titles did appear?

Elliott: The record is in, of course, the whole mass of Delegates' notes. When the decisions have been taken, the relevant editors and so on go into action and issue contracts or...

Malcolm: So one thing that you would accept is that those, I think it is, eight sheets were not the complete Agenda papers of the Delegates' meeting of 23rd July 1985?

Elliott: They were what were called the Agenda papers, but there were all these supporting papers which you need if you are going to answer the particular question you seem to be interested in, namely what General Publications were considered on 23rd July, is that the question you are interested in?

Malcolm: That is a question that interests me greatly. If I could refer you now to page 60 of the red file, does that look to you like a Delegates' note of the sort we are talking about?

Elliott: Yes, that is the sort which occurred.

Malcolm: What do you read in handwriting at the bottom right-hand corner?

Elliott: That this was prepared for the meeting of 23rd July.

Malcolm: What other record could there be, in the light of what you have just said, that could prove or not prove whether that paper appeared at the Delegates' meeting of 23rd July?

Elliott: You will be speaking to Miss Goodall next, who acts as Secretary of this. I believe - I am not exactly sure - that she has the original bundle of papers. She certainly has, as you know from my second affidavit, although I was unaware of it until she told me, having seen my own affidavit, that she maintained a list of all publications accepted by the Delegates, which was not used as an Agenda paper but which was used by her to compile statistics, because the Delegates are anxious to know as the year goes by how many books of particular types have been accepted. In the early 1980s when, because of high inflation and other difficulties, they were very concerned with the amount of investment they were committing themselves to, that list was used to calculate the amount of investment.

Malcolm: In your witness statement at page 55, paragraph 6, you say:

"When the Delegates have considered a book for publication they may do one of four things. They may reject it. They may ask for amendments to be made to it and for it then to be re-submitted. They may provisionally approve it, provided some changes are made to it, in which case the book will not need to go before the Delegates again. Or they may accept the book outright."

Elliott: Yes.

Malcolm: I am not quite clear myself on those distinctions, but there are four different options open to the Delegates for each book. Presumably each proposal gets discussed briefly, and - I do not know - a vote taken or a decision arrived at, one of those four decisions. Where is that then recorded, and by whom?

Elliott: It is recorded in the Minutes. A code is used - again I do not know in quite what way but if you look at any standard Minutes you will see that some books are accepted; some books are encouraged, which means that they are accepted subject to amendments; some are deferred, which means they have to come back; and some are rejected.

Malcolm: We are interested here in the categories of books that appear on page 1 of the Agenda, the sub-classes like Educational Publications. Where do you see in the Minutes a record of the decisions that were reached, title by title, of those publications?

Elliott: Well, I think I mentioned earlier that they are assumed approved, that is what it states here, unless there is a comment about them.

Malcolm: But where the entry in the Minutes is "the titles tabled were approved" or "the list of titles tables was approved" - you are saying that there is no record of what those titles were?

Elliott: That is right.

Malcolm: In which case there is no record of any decision that was or was not made concerning my book Making Names?

Elliott: Your book did not come to the Delegates, that is why.

Malcolm: But I thought you said that you had no recollection of what books came and did not come?

Elliott: No. I can tell that is the case.

Malcolm: How?

Elliott: I do not know what you are trying to prove really. I mean the explanation about that has been given to you several times, that it was withdrawn from the Delegates' Agenda after the Pre-Delegates' editorial meeting.

Lightman: But the short point for you is, have you any specific recollection whether this book was withdrawn?

Elliott: No.

Lightman: You were not involved and you have no recollection of what happened in relation to this book, if anything?

Elliott: That is correct.

Lightman: So really what you are saying is, this is just a matter of argument for other witnesses, it is not a matter which you can speak to.

Elliott: Exactly. I have no primary knowledge about this.

Malcolm: Could I refer you now, Sir Roger, to your first affidavit of 19th July 1989? If you pick up the yellow bundle you will find it at page 61. Exhibited to this affidavit were identical copies of the Agenda and Minutes we have just been looking at in the red bundle.

Elliott: Yes.

Malcolm: At paragraph 3 you state:

"Save for the documents comprising exhibit RE1, there is not now, and to my knowledge there has not at any time been, in the First Defendant's possession, custody or power any other document listing titles of General Publications tabled at the meeting of the Delegates of the Oxford University Press held on 23rd July 1985, or otherwise indicating what General Publications titles were approved at that meeting."

Elliott: Yes.

Malcolm: And you still say that is true?

Elliott: Except for my subsequent affidavit about Miss Goodall and the list.

Malcolm: That seems to say to me that no documentary records were ever kept of which General Books were approved at those meetings.

Elliott: Yes.

Malcolm: When you say in your witness statements at paragraph 6:

"When the Delegates have considered a book for publication they may do one of four things. They may reject it. They may ask for amendments to be made to it... " etc

Elliott: Yes.

Malcolm: Those decisions with respect to General books and ELT books and the other books on page 1 of the Agenda are not recorded?

Elliott: No, they are passed back to the editors concerned.

Lightman: Can I ask Sir Roger this? If the decision is made that a particular book should proceed to publication or anything else, presumably the relevant departments of the Press will have to be informed, and there would be some records in the Press in relation to the particular book that a decision has been made?

Elliott: Yes, it would be on the files.

Lightman: It would be on the file relating to a particular book?

Elliott: Exactly.

Malcolm: That seems to suggest to me, my Lord, that there are some documents somewhere floating around which record the titles of the General Books and the Educational etc. titles that were approved or deferred or whatever at those meetings, and they so far have not been disclosed.

Lightman: I imagine it is going to be an enormous exercise to try and undertake to do that. I cannot think myself, at this stage, it would be a worthwhile exercise.

Malcolm: I wholeheartedly agree, my Lord. While we are at your affidavit, Sir Roger, at page 61, I just note your paragraph 2, second sentence:

"There is now produced, and shown to me marked RE1, a bundle of documents comprising the Agenda and Minutes of meeting of the Delegates of the Oxford University Press held on 23rd July 1985."

I stress the word "comprising" because, according to your recent testimony, in fact the complete Agenda papers were a large bundle.

Elliott: That is a matter of definition of "agenda", is it not? It is not what is called "Agenda".

Malcolm: It is also a matter of the use of the verb "comprise", I submit.

Elliott: Well, there we are. There are papers marked "Agenda" and there are papers marked "Minutes" and that is what were in the bundle.

Malcolm: If I may now turn to your second affidavit, it is in the same file at page 99. This was sworn on 31st January this year. Lo and behold a new set of papers had been discovered for the first time. I am referring to pages 102 to 104 of the file. They are listed as "investment statistics" in the phrase of Miss Goodall, who compiles them.

Lightman: Mr Malcolm, is it necessary to go through this for the purpose of the issue we are trying at this trial?

Malcolm: Just a very brief point, my Lord. I appreciate that you are worried about the time.

Lightman: I am worried about the time and costs of all concerned. At the moment I am in difficulties in seeing how this is assisting either your case or anybody else's case. I do not want to cut you short on anything that is relevant, but I have reminded you we are not entitled to go to questions now which really relate to matters of discovery or any order as to costs - discovery in earlier hearings.

Malcolm: If I may just beg a few moments. This set of investment statistics I shall be cross-examining Miss Goodall on the status of these - it is admitted that these are compiled, the interesting word, some time after the meeting concerned.

Lightman: Pages 102...

Malcolm: Pages 102 to 104 in the yellow file. It is said in Miss Goodall's affidavit that came in the same package that this is a record of the books that were approved at the meeting of 23rd July. Is that your interpretation of them?

Elliott: That is my understanding.

Malcolm: Your understanding?

Elliott: Yes.

Malcolm: Am I to take it that she has told you that that is what they are, or is it what you believe them to be?

Elliott: I think both.

Lightman: Statistics produced at the meeting?

Malcolm: I think I had better read Miss Goodall's statement about them.

Lightman: I am happy to leave it over until Miss Goodall deals with it because, as I understand it, she is a primary witness dealing with this. But again I am having great difficulty in seeing how this is material relevant to what we have to deal with.

Malcolm: Indeed, so do I, my Lord. If we had limitless amounts of time I could demonstrate that if one checked these titles against those listed in the Minutes, the Academic titles, one would find that in fact they bear little relation to the decisions made at the meeting.

Lightman: I do not think that really helps us in this case, does it?

Malcolm: No, I do not think it is at all helpful. It seems to me, Sir Roger, leaving aside all these ambiguities over lists or when "lists" meant lists and when "lists" meant "bundles" and when papers were or were not recording decisions, at the end of the day we are left with your recollection, and we have the last sentence of paragraph 8, page 55, of your witness statement:

"I do not recall seeing the note for the book Making Names at that meeting."

Elliott: That is correct.

Malcolm: You have already admitted that you could not recall any note.

Elliott: No, that is quite right. I could not recall any note.

Malcolm: So I submit that your testimony as to whether the book was approved or not is of no value.

Lightman: That is a matter for submissions to me, not to the witness.

Malcolm: No further questions.

[At this point, sceptics may wish to proceed to the Delegates' evidence sub-file, starting at document BB01 and/or to the New Evidence (green) File and the 'Cambridge' and 'Adrasteia' Packages - A. M. ]

SIR ROGER ELLIOTT questioned by MR GAVIN LIGHTMAN, QC

Lightman: Just a few questions before you are re-examined. If the Plaintiff's book had been considered and approved by the meeting of Delegates, would there be a file in the offices of the Press relating to that book, indicating the decision that had been made?

Elliott: It would have been on his file.

Lightman: One other matter before further questioning. Sir Roger, if you heard that some responsible officer of the Press had given a commitment to an author that the Press would publish his work, would you feel concerned if, at some later date, that commitment having been given, it were withdrawn?

Elliott: Editors are not allowed to give such commitments.

Lightman: Supposing the individual in this case had the authority to do so, would you be concerned about it?

Elliott: Well, I would be concerned if he had given such a commitment since he had no authority to give such a commitment.

Lightman: And that would be the basis of your response?

Elliott: That would be the basis of my response because all our editors are quite clear that, while of course they must enter into negotiations with authors about their books and they must obviously be encouraging about the books, they are not in a position to enter into a commitment or sign a contract. They have to get Delegates' approval and the contracts are signed by the head of the division after that approval has been given.

Lightman: Now in this case - the Plaintiff's case is that he received a commitment - there is in fact, on the pleadings of this case, no defence raised that the individual concerned did not have authority. That is not an issue in the case. It is accepted that if Mr Hardy in this case did in fact enter into a contract with the Plaintiff, then there is a contract irrespective of any absence of authority. Against this background would you feel concerned if a commitment were given by Mr Hardy to the Plaintiff in this case that he should publish and was subsequently reneged on?

Elliott: Well, I would be concerned of course, because it would be a serious breach of discipline within the Press.

Lightman: And also a serious injustice to the author?

Elliott: I can see that it could be an injustice to the author; it would depend upon how long it was before the matter was put straight.

Lightman: Thank you. Are there any further questions you want to ask?

**Malcolm:**No, my Lord.

SIR ROGER ELLIOTT re-examined by MR WARBY

Warby: Sir Roger, could I ask you to look at page 80 of the red bundle again? Mr Malcolm drew your attention to various entries which referred to "the list of titles tabled" being approved. We see one under College Publications and under Educational and ELT. The last sentence under General Publications which I read to you earlier, is:

"The other titles tabled were approved."

Do you see any significance in the distinction between the wording in those various paragraphs?

Elliott: I think the only significance is that under College and Educational, all the titles involved were approved, and in the case of General Publications there were comments on two of the titles, and so that is why the word "other" is used in that instance.

Warby: You were shown the originals of Minutes of meetings in January 1988 and in February 1988...

Elliott: Yes.

Warby: ...in which the entry "the list of titles tabled was approved" appears. You told my Lord that you did not know when the procedures - that is to say, the procedures whereby various categories of books were actually listed in the Agenda - had changed.

Elliott:. Yes.

Warby: Are you able to recall if the procedures changed before January 1988, or after January 1988, or when?

Elliott: I am sorry, I cannot.

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

Witness released

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