TAKE NOTICE that the Court of Appeal will be moved so soon as Counsel can be heard on behalf of the above named Plaintiff on appeal from the order herein of Mr Gavin Lightman Q.C. sitting as Deputy Judge of the Chancery Division made on 16th March 1990 whereby it was ordered that the Plaintiff's Action do stand dismissed and that the Plaintiff do pay to the Defendants 75 percent of their costs of the Action FOR AN ORDER THAT the Defendants do specifically perform the contract as therein set out and additionally or alternatively do pay the Plaintiff damages for breach of the contract or in the further alternative that there be a new trial of the action AND for an order that the Defendants do pay to the Plaintiff his costs of the Action and of this appeal to be taxed if not agreed

AND FURTHER TAKE NOTICE that the grounds of this appeal are that:-

1. The Learned Deputy Judge was wrong in law in holding that in the case of a contract to publish a book the terms that must be agreed between the publisher and author include the number of copies to be printed and the form of publication (e.g. whether in hardback or paperback).

2. The Deputy Judge's interpretation of the Plaintiff's discussions on 26th April and 20th May 1985 with the Defendants' senior editor Mr Hardy concerning the matters mentioned in paragraph 1 above as "preliminary thoughts" was mistaken. In fact agreement was reached on the payment of a fair royalty and on the printing of a small run in hardback. In addition Mr Hardy therein explained the normal trade custom in such matters.

3. The Deputy Judge, having rightly held that no question arises about Mr Hardy's authority contractually to bind the University, was wrong in law in holding that the Plaintiff was not entitled to rely upon the Defendants' internal documents in which Mr Hardy set out his decisions in regard to the matters mentioned in paragraph 1 above.

4. The Deputy Judge's conclusion that the 'missing terms' mentioned in paragraph 1 above would have been incorporated in a document that was to have been sent to the Plaintiff by the Defendants was mistaken. In fact the Defendants' Memoranda of Agreement never incorporate such terms.

5. The Deputy Judge's conclusion that at a meeting on 23rd July 1985 the Delegates of the Defendants did not formally approve the publication of the Plaintiff's book in terms of a hardback print-run of 2,000 was against the weight of the evidence before him.

6. The Deputy Judge should have held that there was a binding enforceable contract between the Plaintiff and the Defendants.

7. The Deputy Judge wrongly exercised his discretion in not allowing the Plaintiff to adduce certain evidence material to the factual matter mentioned in paragraph 5 above. The day before the trial the Court set aside subpoenas served by the Plaintiff on 3 witnesses relevant to this matter and the Plaintiff was prevented from adducing their oral or affidavit evidence during the trial.

8. During the course of the trial the Defendants for the first time named an important and previously undisclosed potential witness Mr John Cordy. Since the trial the Plaintiff has obtained evidence from Mr Cordy which contradicts the oral and affidavit evidence adduced by the Defendants during the trial and which also is material to the factual matter mentioned in paragraph 5 above.

9. Alternatively, if, notwithstanding paragraphs 1 to 8 above, it is held that Mr Hardy's absolute commitment to the work's publication does not constitute an enforceable publishing contract, it should in law be held to be an enforceable contract for the supply by the Plaintiff of a service, namely to revise the work according to the Defendants' requirements set out in paragraph 15 of the re-amended statement of claim.

10. The Deputy Judge rightly held that if he had found a contract, damages, which in his opinion should have been substantial, would not by themselves have been an adequate recompense to the Plaintiff for the loss of his opportunity of securing the imprimatur of the Oxford University Press on his work. He rightly held also that granting specific performance in addition would have been an equitable remedy. However, his further conclusion that specific performance would have been an impracticable remedy in this case was wrong because he failed to appreciate that the formula proposed by the Plaintiff (the production and delivery to the Plaintiff of the 2000 hardback copies originally planned) would not involve the Court's enforcement of any continuing relationship between the parties.

11. The Plaintiff reserves the right and intends to add to these grounds of appeal when transcripts or other further evidence becomes available.

AND FURTHER TAKE NOTICE that the Plaintiff proposes to apply to set down this appeal in the Chancery Division (Final and New Trial) List.

I certify that a true copy of this Notice of Appeal was served on the Defendants' Solicitors, Messrs Dallas Brett, at Pembroke House, Pembroke Street, Oxford OX1 1BL, on Wednesday the 18th day of April 1990

Andrew Malcolm The Plaintiff acting in person

Go to Oxford's Respondents' Notice.

Go to the Malcolm vs. Oxford I (1984-92) Index or the Malcolm vs. Oxford II (2001-02) Index

Go 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 Statement of Claim, to the Case History, to the Chancery Court Judgment, to the Appeal Court Judgment.