AN AUTHOR and philosopher won a four-year legal battle yesterday for damages against Oxford University Press for breach of a "gentleman's agreement" to publish his book.
By a two-to-one majority, the Appeal Court found for Mr Andrew Malcolm, 41, and overturned a High Court ruling that there was a "strong moral", but not legally enforceable, commitment to publish his book Making Names.
The OUP, which was criticised throughout the case for "harsh and unfair" treatment of Mr Malcolm, was ordered to pay his costs. Lord Justice Nourse said the court hoped that Mr Malcolm would be spared the anxiety of further litigation and that, with goodwill on both sides, it would be possible to agree the amount of damages. If not, the damages issue would be referred to a senior High Court official for determination.
Mr Malcolm, of Brighton, Sussex, who did not have legal assistance, said later: "It is a great relief that justice has at last been done. I have been fighting the case for about four years and it has been exhausting. But I hope that authors everywhere may start to get a fair deal from their publishers." He may now consider bringing his book out himself. "I don't feel like having anything to do with publishers any more," he said.
Mr Malcolm began negotiations with the OUP for publication of his book, a work of philosophy, in the spring of 1985. They culminated in a telephone conversation in which Mr Henry Hardy, a senior editor, in the general books department, offered him a "fair royalty" and "a commitment" to publish, subject to some major cutting and revision. This was followed by a letter that ended: "I'm pleased that we are going to do your book and hope that it's a terrific success."
But the book was summarily rejected by Mr Richard Charkin, who was then OUP's managing director. Lord Justice Nourse and Lord Justice Leggatt ruled that the OUP had made a contractually binding commitment to publish the book. The latter said: "When Mr Hardy used the expressions 'commitment' and 'a fair royalty', he did in fact mean what he said. I venture to think 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."
But Lord Justice Mustill said he reluctantly agreed with the High Court that Mr Malcolm's claim to a contract must fail. "In terms now no longer fashionable, the OUP, through its representative, made a gentleman's agreement and broke it. No legal remedy ensues," he said. "Mr Charkin's decision not to publish the book was taken not because he thought it was no good - he had never seen it and the reports were favourable - but because he thought it would not sell," said the judge.
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