Malcolm vs. Chancellor, Masters and Scholars of the University of Oxford
Before Mr Gavin Lightman QC [judgment March 16]
A firm commitment to publish an original work given by a reputable publisher to an author to persuade him to undertake substantial revision of it, could not be enforced by the court unless its terms were substantially complete or otherwise ascertainable with certainty.
Mr Gavin Lightman QC, sitting as a deputy judge of the Chancery Division, so held in dismissing an action for specific performance, alternatively for damages for breach of an alleged contract between the plaintiff, Andrew Malcolm, and the defendants, trading as Oxford University Press, for the publication of an original philosophical work, written by the plaintiff in dialogue form and entitled Making Names.
Mr Malcolm in person; Mr Mark Warby for the defendants.
HIS LORDSHIP said that three issues had been canvassed: (1) whether on May 20, 1985 the defendants entered into a conditional commitment to publish the work; if so, (2) whether, on the condition being met, there was a binding contract to publish it; if so, (3) whether specific performance should be ordered.
Commitment
On October 14, 1984, in response to an invitation by Mr Hardy, senior editor of the defendants general books division, the plaintiff had sent them a first draft typescript of the work.
On February 18, 1985, Mr Hardy outlined to the plaintiff certain anxieties about that draft, to which he responded by listing the revisions he proposed to make, but sought a firm commitment from the defendants before he embarked on any further re-writing.
On April 26, Mr Hardy replied by telephone that at that stage the defendants could not commit themselves to accepting the results of a further attempt to reorganise the work, to which the plaintiff reiterated that without a firm commitment to publish he was not prepared to undertake further revision.
Next, on May 20, Mr Hardy again telephoned the defendant to say he was now offering a commitment, conditional only on the plaintiff's revisions not making the work worse.
It was common ground that the plaintiff's ensuing revisions had improved the work. Unfortunately, the work had been turned down at an editorial meeting on 17th July, 1985 and was never even submitted for the approval of the delegates (the ultimate arbiters) at their next meeting.
In addition the managing director of the academic and general division of the Oxford University Press had given Mr Hardy a written warning under the disciplinary procedure for indicating to the plaintiff that his book would be published, without going through editorial procedure.
On the evidence, his Lordship had been satisfied that Mr Hardy had given the plaintiff an absolute commitment and since there was no plea by the defendants to the effect that Mr Hardy exceeded his authority in so doing, the plaintiff succeeded on that issue.
Contract
With considerable regret, his Lordship had come to the conclusion that no completed contract could be spelt out of what had passed between the parties: for example, how many copies were to be printed, in hardback or paperback or both, and at what price and yielding what royalty?
It was true that contract details might, by agreement, be left in the hands of one party or the other; and if simply one term were missing it was possible for the court to supply a reasonable term - as in Abrahams v Herbert Reich Ltd ([1921] 1 K B 477), where the Court of Appeal fixed the amount of damages in respect a refusal to publish at all by assuming the contract to publish a reasonable number of copies.
But in the instant case too much was missing. The plaintiff was not entitled to refer to the defendants internal memoranda in relation to what printing, price, format and royalties they had in contemplation. Further, the telephone conversations between the plaintiff and Mr Hardy had expressly contemplated that agreement would have to be reached on those matters.
While, therefore, his Lordship thought that the plaintiff had been harshly and unfairly treated and that the defendant might feel under a strong moral obligation to make some amends, he found himself unable to hold that a legally binding contract had been entered into, on which the plaintiff was entitled to sue in a court of law.
Specific performance
Although Barrow v. Chappell and Co. Ltd. ([1976] RPC 355) demonstrated that specific performance could be granted in a proper case, it did not arise. His Lordship would not have regarded it as a proper or practicable remedy in a case like the present, where close co-operation between author and publisher was clearly essential.
Had he been able to find a binding contract to publish, his Lordship would have been minded to award substantial damages. As he could not, the action was dismissed.
Solicitors: Dallas Brett, Oxford.
Now go to The Times Post-Appeal report, 18/12/90 or to the next item in the Malcolm v. Oxford saga.