(1) High Court Trial, Chancery Division, 16th March 1990, before Deputy Judge Gavin Lightman Q.C.:
"I am satisfied that a clear commitment to publish Making Names was made by the University of Oxford. I think that Mr Malcolm has been harshly and unfairly treated. I think he had a strong, moral, though not a legal commitment. I reach this decision with great regret. After reviewing these matters, it may be that the University will have second thoughts, or at least be minded to make some kind of amends... If there was a legally enforceable contract, I would have been minded to indicate that a substantial award of damages was called for to recompense Mr Malcolm for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work.
It seems to me that a matter that had figured very largely in Mr Malcolm's mind, and perfectly reasonably, and indeed permeated the whole way this case has been run, has been a concern that there was a cover-up in regard to whether the Delegates approved Making Names, and this was a perfectly fair inference to be drawn... It is fair to say that discovery of documents has not been a signal success as far as Oxford is concerned... I have been concerned throughout this action by what appears to me to have been a failure by Oxford's solicitors to take sufficiently seriously their obligations in regard to discovery."
(2) Court of Appeal, 19th December 1990
Lord Justice Mustill:
"I find it disturbing that when the appellant attempted to meet it [the print-run and format point] with evidence from the trade the respondents stoutly resisted its introduction: and yet, when it was introduced they caved in and made no attempt to controvert it. The respondents had ample notice of the application and the fact that they had not come to the hearing of the appeal armed with evidence to the contrary must show that there was no such evidence to get. The Press is one of the longest-established publishing houses in the United Kingdom, and no doubt in the world. They must have been aware from the outset that the absence of agreement on the matters in question was not, in the trade, regarded as preventing a formal agreement from coming into existence. Candour would, I believe, have required that this should have been made clear to the judge and ourselves, rather than a determined refusal to let the true position come to light.
This is not quite all. I do not know whether an outsider studying the history of this transaction and of this litigation would feel that, in his self-financed struggle with the assembled Chancellor, Masters and Scholars of the University of Oxford the appellant has had a fair crack of the whip. I certainly do not... If the evidence adduced by the Press is to be relied upon, the project was never the subject of grave deliberation by the Delegates on whether the intellectual merits of Making Names would measure up to the high standards which the Press had always set for itself. The staff of the Press stopped the project before it ever reached the Delegates. Mr Charkin took the decision, not because he thought the book was no good - he had never seen it and the reports were favourable - but because he thought it would not sell. Let there be no mistake about it, the failure of this transaction was about money, not prestige. Nor does the course of the litigation give any reason to suppose that the Press had any interest but to resist the claim, no matter on what grounds, so long as they succeeded.
The history of the interlocutory proceedings suggested that there was a failure of communication between the respondents' legal advisers and those in charge at the Press. Could it also be that the Delegates whose interests are so directly in suit were out of touch with what was going on in the action? Could it be that they did not know what had been, what was being, said about the stance adopted by the Press?"
Lord Justice Nourse: "The functions of an author and his publisher are quite distinct, a state of affairs which has been humourously expressed by saying that each regards the other as a necessary evil. The function of the author is to produce the raw material of a script. The function of the publisher is to present and promote that material in such a way that it will be as widely acquired by the reading public as is practicable... Mr Malcolm's only remedy is an award of damages. For my part, I would allow his appeal and order an enquiry as to damages."
Lord Justice Leggatt: "It is difficult to know what the Deputy Judge (Lightman) meant by a 'firm commitment' other than an intention to create legal relations. Nothing short of that would have had any value whatever for Mr Malcolm. He had made it clear that without a commitment he was not prepared to undertake the work of revision expected of him. To suggest that Mr Hardy intended to induce Mr Malcolm to revise the book by giving him a valueless assurance would be tantamount to an imputation of fraud... It follows that in my judgment when Mr Hardy used the expressions 'commitment' and 'a fair royalty' he did in fact mean what he said; and I venture to think that it would take a lawyer to arrive at any other conclusion. There was therefore an enforceable contract for the publication of Mr Malcolm's book... The Respondents' final statement may be thought unworthy of them."
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.