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
MR H. R. D. HARDY - affirmed
MR H. R. D. HARDY examined by MR WARBY
Warby: My Lord, Mr Hardy's statement is to be found at page 57 and then glance at page 62. Is the signature at the bottom your signature?
Hardy: Yes it is.
Warby: Could I ask, my Lord, that Mr Hardy's statement at pages 57 - 62 stand as his evidence-in-chief? I have a few supplementary questions.
Mr Hardy, would you turn to page 59. I hope that opposite that you will have a page numbered 58A.
13a. "I have a clear recollection of an exchange on the telephone with Mr Malcolm in which he asked me whether he could now make arrangements preparatory to undertaking his revisions. I answered that I did not anticipate any problems, but that strictly speaking approval was needed both from an internal editorial meeting and from the Delegates, and that if he wanted to be absolutely in the clear, he would wait until these stages had been gone through. If he chose to make arrangements before that, it would be at his own risk - a risk which I admittedly assessed as small, but nevertheless real. I have no clear recollection of exactly when this exchange took place, but it seems most likely to have been towards the end of the conversation of 20th May 1985, or perhaps in another telephone conversation on or about that date, the precise date and time of which I cannot now recall."
Hardy: Yes.
Warby: Have you read those words before?
Hardy: Yes.
Warby: Can you confirm that that is your recollection of events?
Hardy: I can.
Warby: You heard, I think, Mr Malcolm giving evidence.
Hardy: I did.
Warby: Having heard him, have you changed your mind about what took place and what you refer to in the text at page 58A?
Hardy: No. Perhaps I should gloss that slightly. That still remains my recollection, but perhaps I should add that I am aware that recollections can be false. It is still what I truly recollect to have happened.
Warby: Just looking at the last words, the last three lines, of page 58A, do you have a recollection of another telephone conversation taking place between you and Mr Malcolm?
Hardy: I have no positive recollection of that, no.
Warby: Could you take up the red bundle and look at page 60. Can you see at the bottom right there is a manscript note "for Delegates 23rd July"?
Hardy: Yes.
Warby: Do you know whose handwriting that is?
Hardy: Mine.
Warby: Above that there is a typed date, 16th July 1985. What is the significance of that?
Hardy: That would normally be the date on which the note was typed, and I take it to be that in this case.
Warby: Do you remember who wrote, or who composed the text?
Hardy: I believe that I composed it.
Warby: Can you recall when you wrote that manuscript addition on that document?
Hardy: No.
Warby: Can you make any comment on its significance? What it was there for?
Hardy: I can make a guess, which I am willing to share with you, if that is permissible.
Lightman: Is it more than a bare guess or do you think it may realistically be the reason why you wrote it?
Hardy: It is the only reason I can now think of why I should have wished to have written that on the Delegates' Note.
Lightman: Would you share that with us.
Hardy: Certainly. I imagine that I wanted to make clear, subsequently, some time after the Note was written, which Delegates' meeting it had been written for, to clarify the sequence of events. I would not have written it on at the time because the top copy of the Delegates' Note on which it is written would have been needed to go to Miss Goodall who would have photocopied it for circulation to the Delegates.
Lightman: So it would have been some date after 23rd July?
Hardy: Some date unknown to me, yes.
Lightman: But after 23rd July?
Hardy: Not necessarily, but after it became clear that the Note would not be required for the Delegates, which was earlier than that.
Warby: Where would you have found the document at that time?
Hardy: It would never have left the file because it was never sent to the Delegates.
Warby: Would you look at page 60 of the blue file? I do not know if your paragraphs have been numbered
Hardy: Yes, they have.
Warby: There is a paragraph numbered 17, which has been amended to add some words and a date:
"At the meeting at which Making Names was discussed on 17th July 1985"
were you present at that meeting?
Hardy: I cannot remember, but I had by that time begun a new job at the beginning of July, so properly speaking I was not entitled to be at it. But I could have come because I was interested in a book, I suppose.
Warby: Do you have any recollection of presenting the book at the meeting?
Hardy: I have no recollection, no.
Warby: As you will be aware from listening to Mr Malcolm's evidence, he suggests that the Delegates approved his book for publication at a meeting on 23rd July 1985.
Hardy: Yes.
Warby: Are you aware of any facts which lead you to believe that that happened?
Hardy: Certainly not.
Warby: Do you have any direct knowledge as to whether it did or did not happen?
Hardy: I would say I have certain knowledge that it did not. It is inconceivable, given the history of this project, that had it gone to the Delegates I would not have known about it.
Warby: Going back to page 57 of the blue bundle, at the bottom of the page, paragraph 5, you are describing the procedure by which the book is to be considered, and you talk about a Publishing Proposal Form:
"...discussed at the internal meeting, and if it was decided the book might be published the publishing proposal form must be signed by both the Oxford publisher and the Managing Editor.6. If it is signed the book could then be submitted to the Delegates for final approval."
Hardy: Yes.
Warby: Would it be possible for a Delegates' Note to be forwarded and considered by the Delegates at a meeting if no Publishing Proposal Form had been signed?
Hardy: No.
Warby: Why not?
Hardy: Because the person who organises the circulation of Delegates' Notes to the Delegates, Miss Goodall, has to satisfy herself that the completed - i.e. signed - Publishing Proposal Form is present in the files for the relevant books. (Pause) I think I should amend that. As I spoke I was considering the order of events. In fact, the procedures provide for the files for the books to reach Miss Goodall at a date later than the date on which the Delegates' Notes are circulated, so I think I should amend my reply. I am sorry about this. You asked me if it was possible for a Delegates' Note to be forwarded to the Delegates without a Publishing Proposal Form having been completed. If an editor deliberately wished to supply Miss Goodall with a Delegates' Note for a proposal, knowing that a Publishing Proposal Form had not been completed, he could so do and Miss Goodall would have circulated that Note with the other Notes, because at that time, when she circulated the Notes, she would not have had the files. However, had she done that it would have come to light at the time that the files were supplied on the Monday morning before the Delegates' meeting that no Proposal Form had been properly completed, and then the submission to Miss Goodall of the Delegates' Note would have been revealed as out of order and the proposal would have had to have been withdrawn from the Delegates' agenda for which it had been improperly presented. So, strictly speaking, the answer to your question is, yes.
Warby: Having explained very fully the trick which could be tried on, could you say whether you ever tried on that trick in relation to Making Names?
Hardy: Certainly not.
Warby: Perhaps I had better be blunter about it. Did you forward the document which we see in the red file at page 60, or cause it to be forwarded, to Miss Goodall?
Hardy: No.
Warby: Just one more question. In order that there should not be any dispute about this, what was your attitude towards the proposal that Making Names should be published by the Oxford University Press at the time the proposal came to you?
Hardy: At the time it first reached me?
Warby: Yes.
Hardy: An open mind.
Warby: Once you had read it?
Hardy: Once I had read it I was favourably disposed to its publication, subject to the appropriate revision.
Warby: You were criticised by Mr Charkin, we see, for unduly raising the hopes of an author.
Hardy: Yes.
Warby: What is your feeling about that criticism?
Hardy: In the light of what happened subsequently, it was clearly justified.
Warby: My Lord, I have no further questions.
MR HARDY cross-examined by MR MALCOLM
Malcolm: I confess I did not follow a great deal of that, but I did hear you say, Mr Hardy, in response to Mr Warby's question "Did you forward the document at page 60 in the red file to Miss Goodall?" you replied "No". Could you just look at that document, page 60 of the red file.
Hardy: Yes.
Malcolm: You did not forward that document to Miss Goodall?
Hardy: No.
Malcolm: All I can add to that is the assertion I think you made earlier in your testimony that the handwritten words appended at the bottom righthand corner were not written until sometime afterwards. You could not remember when, but sometime afterwards it became clear that it was not going to go forward.
Hardy: It became clear on the next day because it was at the meeting on the next day that Richard Charkin decided to say the book could not be published.
Malcolm: Exactly. So those handwritten words, whenever they were put on, were put on sometime after but you could not remember when. That is right?
Hardy: Sometime after the meeting at which Mr Charkin decided not to allow the book forward, yes.
Malcolm: So there was never any question of sending document 60 to Miss Goodall. The document you might have sent to Miss Goodall is document 59.
Hardy: Document 60 is document 59 with a manuscript addition.
Malcolm: Exactly, which did not get added until you, in your own somewhat imprecise words, appended them sometime afterwards, when it became clear that it had not gone forward.
Lightman: Just pause there. Did you send document 59 to Miss Goodall?
Hardy:. No.
Malcolm: You said that you amended those words to clarify the sequence of events - that was your expression.
Hardy: That was my surmise, yes.
Malcolm: Your surmise?
Hardy: I said when I made that answer that that was a guess. I could not remember why I had written those on, but that was the only reason I could think of why I should have wished to do so.
Malcolm: So the thought is that after you knew it was not going to the Delegates' meeting on 23rd July you wrote the words on?
Hardy: That is what I suggested.
Malcolm: To clarify the sequence of events to whom?
Hardy: Possibly to the lawyers. I cannot remember when it came up.
Malcolm: To the lawyers?!?
Hardy: This may have been after it became clear that there was...
Malcolm: The lawyers were not involved for two years after this. So you may have put the handwritten words on two years after the date of this?
Hardy: I may have done. I have no recollection of when I put the words on. My guess may be erroneous; it was the best answer I could give to Mr Warby's question.
Malcolm: But you did say you might have put them on to clarify the sequence of events to the lawyers?
Hardy: It is a possibility.
Malcolm: To whose lawyers?
Hardy: The Press's lawyers.
Lightman: You mean to show for what purpose it was originally prepared?
Hardy: Yes. The purpose for which it was prepared is perhaps apparent in itself, but to show how it fitted into the timing of Delegates' meetings was what I had in mind.
Malcolm: Mr Hardy, I turn from that to page 59 of your witness statement, and this draft amendment. When Mr Warby introduced this yesterday I remember him being unclear as to exactly where it should go. He tried to add it after the second sentence of paragraph 13, as is suggested at the top of the draft, but did not get very far with it, and then wondered whether it might go in the penultimate sentence between... I am not quite sure, and I do not think he was either, and I certainly am not. I tried to read this amendment in some way; I put it in a number of positions on the facing page, and I cannot for the life of me make it fit anywhere. So perhaps I could ask you to read it out as you intended.
Lightman: Whether one puts it in any particular place, I do not think really matters, or whether it is a new paragraph 13A. The critical question is whether or not this evidence or this recollection is correct. I do not think how we physically insert it into the statement really matters.
Malcolm: If your Lordship thinks that - but I suggest that where it is inserted affects its meaning.
Lightman: Why not try to clarify its meaning, if you wish to clarify it, and see how far you accept it and how far you do not accept it.
Malcolm: It ties up with the question, does paragraph 13 still stand?
Lightman: You can ask that.
Malcolm: Do you still affirm paragraph 13?
Hardy: As modified by the new addition, yes.
Malcolm: But I personally have not been able... Could you state, Mr Hardy, what you believe your recollection is in relation to the 20th May telephone conversation? Perhaps I should start by asking you the question, you have read the transcript and heard the copy tape of that conversation, aside from the few seconds that may have elapsed when the tape was turned, as I explained yesterday. Do you believe that is a complete and accurate record of a conversation that we had on 20th May 1985?
Hardy: I have no belief one way or the other.
Malcolm: You have no belief one way or the other?
Hardy: I am taking your question in its entirety. If I may be a bit more particular, I believe that it is accurate so far as it goes.
Malcolm: "Complete and accurate" was the phrase I used.
Hardy: That is why I am splitting it up to explain why I had to answer in the first instance the way I did.
Malcolm: So you think it is incomplete?
Hardy: I have no belief as to its completeness. I do have a belief as to its accuracy.
Lightman: I think what the witness is saying is that he accepts that what is set out accurately sets out what was said. But he says that there may have been something else, but he is not sure about it. Could you help us on this. In regard to the transcript - we have got the transcript there - are you able to say whether you have any recollection of anything omitted in any particular part of the transcript?
Hardy: You mean, my Lord, am I aware of exactly where in the conversation the missing part, if there was one, would have come?
Lightman: Yes.
Hardy: I could not place it to a particular line, but I think that the structure of the conversation, together with my recollection, indicates that it would have come during the last page of the transcript.
Lightman: Can we just look at that. It would be somewhere in... page 42 or 43 I presume you are talking about.
Hardy: Page 44 in the red folder - is that right?
Lightman: That is the last page of it. It was the last page you were asking for.
Hardy: Yes, I think that the most natural place for the exchange which I recollect to have occurred would have been during the course of that last page.
Lightman: Can you tell us where on the last page? After it had finished? After "Okay, thanks very much" or before that?
Hardy: I think more probably somewhere between... either just before line 335 perhaps, or perhaps at line 342. Those seem to me to be the two most likely places where it could have been inserted without making the other remarks come out of the natural context.
Lightman: But one would presume if it went into either of those places there would be some kind of gap on the tape, would there not, or some kind of sound indicating that something has been omitted.
Hardy: I do not know enough about the technology of cutting parts of tapes out, my Lord, to have a view on it.
Lightman: There is no suggestion of anything being cut out here, as I understand it. All that could have happened - there is no suggestion that there has been any mucking about with the tape here - presumably for some reason or other it did not record something. Perhaps it was turned off, accidently or otherwise, for a period whilst this particular conversation took place. But I would have thought if it was turned off or anything of that sort happened you would probably hear some kind of sound on the tape which indicated that something unusual had happened.
Hardy: Yes.
Lightman: And you have no recollection - you listened to the tape - of hearing anything to that effect?
Hardy: No.
Malcolm: The amendment, Mr Hardy, begins with you saying "I have a clear recollection of an exchange". What is your recollection of what I said?
Hardy: You asked me, when we had finished discussing the changes which needed to be made to the typescript, whether it was safe for you to begin work on them immediately. You told me that you had some arrangements to make I cannot remember the precise nature - to do with moving house or something of that kind, making arrangements in your life in preparation for making revisions. You wanted to know whether you could now go ahead and do these things safely or whether you needed to wait.
Malcolm: Could I stop you there. I said to you that I was making preparations for moving - something like that?
Hardy: I have a recollection that that was one of the things you asked about, yes.
Malcolm: You have a clear recollection, according to your amendment.
Hardy: The clarity refers to the existence of the exchange, not to its detail.
Malcolm: But you do remember me saying to you that I was planning to move to a country house or something like that?
Hardy: I remember us talking about that, yes.
Malcolm: You do?
Hardy: I do.
Malcolm: Clearly?
Hardy: Clearly.
Lightman: I must admit I find it a little difficult to see how the passage sensibly can be inserted into page 44, because it would seem to me to rather break up the line of conversation as set out at page 44. We are talking about matters of cast-offs - line 324, which are picked up at the end of line 344, cast-off being necessary before we get on to costs, royalty, advance money. "Then in the meantime, I am waiting, you will do the cast-off." I must say I find it a little difficult to see how this passage would fit in naturally into the conversation. Actually the conversation seems to run naturally as set out in the transcript. But you cannot really help me on that?
Hardy: I cannot help you with that, my Lord.
Malcolm: I think I may be able to, my Lord. If Mr Hardy turns to page 46 of the red file, it is a letter covering my return of the Author's Publicity Form which I sent to him on 30th May. Towards the end of the second paragraph I say:
"To this end I am contemplating a move to the peace and quiet of a nearby country house where I will be able to concentrate wholeheartedly on the writing. Please bear with me in all this. I believe the final product will be worth the wait."
Malcolm: And you have a clear recollection, Mr Hardy, of me telling you that ten days earlier?
Hardy: No. I said I had a clear recollection of our discussing that. I did not say I had a clear recollection of our discussing it in this exchange. It is clear from your letter that we must have discussed it on another occasion.
Malcolm: I suggest to you that if I had talked to you about it on 20th May I would not have mentioned it in my letter of the 30th.
Hardy: That does seem unnatural.
Malcolm: It is not the only thing that seems unnatural.
Lightman: Try not to make comments, if you can. Comments are for me when you make your statement.
Malcolm: I beg your pardon.
Can we turn to paragraph 18 of your witness statement:
"I believe that at that meeting ["on 17th July" inserted by hand] 1985 Richard Charkin indicated that another opinion of the book would be needed before a decision could be made."
Is that true?
Hardy: You mean is that my true belief now?
Malcolm: Perhaps you could help me on this. When was this amendment put in - the 17th July date put in?
Hardy: I do not know.
Malcolm: This is your witness statement, Mr Hardy, not mine.
Hardy: I do not know.
Malcolm: Does this mean to say that you did not amend it?
Hardy: That is not my writing.
Malcolm: And you do not know when or by whom that writing was inserted?
Hardy: I believe it was put there by the Press's lawyers.
Lightman: Mr Malcolm, it is clear that the meeting was on 17th July. Indeed it is clear from the letter on page 65 from Mr Charkin to Mr Hardy.
Malcolm: Yes, my Lord, but I will move on because it probably becomes clearer. In paragraph 19 you go on:
"I caused the book to be sent to Galen Strawson."
I find your use of the word 'caused' rather unusual there. Why did you use that expression? Why did you not just say "I sent the book to Galen Strawson"?
Hardy: Because I did not. My assistant did.
Malcolm: When?
Hardy: It is clear from the papers which I have been re-reading recently that this took place - I speak from memory, I think the document is somewhere here actually; there is a manuscript memo from, no, a letter from Angus Phillips, my assistant, to Galen Strawson dated, if I recall, on 11th July, saying that I had just returned from holiday. Page 57 of the red file. It is typewritten.
Malcolm: It is dated 11th July.
Hardy: Yes.
Malcolm: I fail to understand how if, on 17th July, Mr Charkin indicated that another opinion of the book would be needed, that you could manage to get it sent to Galen Strawson six days earlier.
Hardy: I think the explanation is simple. Paragraph 18 - the belief reported in paragraph 18 in the witness statement - is false.
Malcolm: Yes.
Malcolm: Mr Hardy, can you tell us what took place at the editorial meeting on 17th July?
Hardy: Beyond the fact that Mr Charkin decided not to allow the publication of the book - no.
Malcolm: You were not at the meeting?
Hardy: I stated earlier that I cannot remember.
Malcolm: You cannot remember whether you were at the meeting. Did you go to see Mr Charkin later on that day, or on the next day?
Hardy: I cannot recall.
Malcolm: Did you show Mr Charkin the file of correspondence that attached to this proposal?
Hardy: I cannot recall.
Malcolm: You cannot recall?
Hardy: No.
Lightman: Does it help you if you look at page 65 of the red bundle?
Hardy: How might that help me, my Lord?
Lightman: You will see the letter to you from Richard Charkin dated the 18th July says:
"Further to our discussion of the 17th July"
Hardy: I am sorry. That makes clear that I must have talked to him, presumably after the meeting on 17th July, but I have no recollection of that discussion.
Malcolm: But Mr Hardy, Mr Charkin was serving upon you what you described at the time as a "Stage 3 Warning" preparatory to dismissal. This looked like the end of your career at Oxford University Press. That letter and the events surrounding it were possibly some of the most horrific you have had there. And you cannot remember?
Hardy: I have no recollection of the specific discussion alluded to, which must have taken place between myself and Richard Charkin on 17th July.
Lightman: But you have a specific recollection of a rather stormy meeting when he indicated that he may take this Stage 3 action in relation to you?
Hardy: I do not remember that meeting at all, my Lord.
Malcolm: Mr Hardy, your memory does not seem to be serving you very well, then or now. If I could refer you to paragraph 24 of your statement, on page 61:
"I was the subject of disciplinary action instigated by Richard Charkin. The disciplinary proceedings consisted of a Stage 3 written warning, but my appeal against this warning was successful and so the warning was withdrawn. Disciplinary action at Oxford University Press" - etc.
You seem to be remembering it pretty well then. It was, I think, 19th October last.
Lightman: Can I just ask you, has the whole of this incident really had rather a traumatic effect upon you?
Hardy: Extremely. It is one of the most disturbing experiences that I have ever been through. Perhaps one might speculate that that is why I cannot remember a particular element of it in detail.
Lightman: It may well be.
Malcolm: I can understand that, Mr Hardy, but I cannot understand the last sentence of that paragraph, which reads:
"I was so shocked with the disciplinary action that I forgot to indicate in that letter..."
and the letter you are referring to is at page 67 of the red file.
"...that I had told Mr Malcolm that the book would not only need to be revised, but would also have to proceed through the internal editorial meeting and the Delegates' Meeting."
Hardy: Yes.
Malcolm: Do you stand by that?
Hardy: I do. It was very stupid of me, but I think it was the result of the great shock I suffered when Mr Charkin told me that he was going to discipline me.
Malcolm: So, here you are, in the middle of what you have just described as one of the most traumatic scenes in your life. Your career is possibly about to be terminated. You are facing a hearing before a panel who are going to decide whether you keep your job or not. You have to write a long defence in answer to Mr Charkin's charge. And you omit to mention the one fact - had it been a fact - that would have saved you, or helped you?
Hardy: It is a very remarkable omission and I have been kicking myself about it ever since.
Malcolm: There is another remarkable omission from your witness statement, and that is that there is absolutely no reference whatsoever to your letter to me of 14th June 1985, not so far as I have been able to tell. Had you forgotten that you wrote that letter?
Malcolm: Had I forgotten it when?
Malcolm: Now, or 19th October. It was presumably on your file.
Hardy: I did not, in compiling the witness statement or assenting to the witness statement, compare it sentence by sentence with each document in the file. So I evidently did not have it in the front of my mind at the time, if I have not mentioned it.
Malcolm: Could you say that again? When you were compiling your witness statement you did not have the documents in front of you?
Hardy: I do not recall whether they were physically present in the room at the time but I do not think that I went through them there and then as the witness statement was being prepared, checking the remarks against each document. I really have a very imperfect recollection of the circumstances in which the witness statement was compiled. I am just trying to explain to you why the letter of 14th June, if it ought to have been in the witness statement and I do not know whether it should have been - is not there, is not mentioned.
Malcolm: Is it natural, do you think, if you suspect that there is some missing material on the vital telephone conversation that has obviously been so traumatic for both of us - this telephone call of 20th May 1985 - does it not seem unnatural that in all this time you have not asked to hear the original tape, or in any way satisfy yourself that it has not been interfered with?
Lightman: You have heard a copy of the tape, have you not?
Hardy: I have heard a copy of the tape, my Lord. I am sorry, I am not quite sure what you are asking. Could you repeat the question?
Malcolm: I suggest to you again, rather in parallel to the extraordinary assertion you make at the end of your paragraph 24, where the one fact, had it been a fact that you could have asserted, might have saved you...
Lightman: I must say, Mr Malcolm, if I had been supplied with a copy of the tape I would not particularly want to hear the original tape. I would presume that that is a true and fair copy. I am not sure that I would expect to hear anything different on the original, having been supplied with what I am assured to be is a true copy.
Malcolm: Yes but, my Lord, Mr Hardy says he has a clear recollection of another exchange.
Lightman: I know, but why should the original copy affect the matter any differently than the copy tape which he is given?
Malcolm: I suppose he might suspect that I had in some way interfered with the copying of the tape.
Lightman: I would have thought that if there was any sound or other indication on the tape to that effect it would be as likewise carried by the copy as it would on the original. I do not think this line of questioning really helps you terribly far. We have dealt with matters dealing with his recollection and we have gone through the way that it does not appear in the transcript. We have dealt with the important matter that you have indicated, the bottom of paragraph 24. But I think on the question of why he had not listened to the original tape I do do not think really helps.
Malcolm: Mr Hardy, did you receive a copy of Mr White's - my solicitor's - letter before action, pages 132 and 133 of the red file, 26th August 1986. Did you receive a copy of that letter fairly soon after it was sent?
Hardy: I do not recall.
Malcolm: You do not recall?
Hardy: I can test my recollection by reading through the letter again now, but it does not...
Lightman: It is a letter sent to Mr Richardson; it is not sent to Mr Hardy.
Malcolm: Yes, my Lord, but I believe the Defendants' file copy may show that copies were circulated, as indeed they should have been.
Hardy: The substance of what Mr White is saying in this letter is broadly familiar to me, but whether it was communicated to me by my being shown a copy of this letter or by my being told more informally what was involved, I cannot now recall.
Malcolm: It is broadly familiar to you?
Hardy: If you want to press me on this matter, I think you must allow me time to read through the letter slowly.
Malcolm: I just draw your attention to about half-way through the last paragraph on page 132:
"Suffice it for me to say that as at present advised I consider that the Press's entire file on this work will be subject to discovery, including all and any correspondence or internal notes or memoranda between Mr Hardy and Miss Bion and the readers and advisers, documents recording or produced for the purposes of the meeting on or about 18th July 1985 at which the decision was taken..." etc.
Hardy: Yes.
Malcolm: Did you pay, in your broad appreciation of that letter, any heed to that paragraph?
Hardy: How do you mean - did I pay heed?
Lightman: Did you know that there was a reference made by Mr White to the need to preserve any documents that existed relevant to the issue in this case?
Hardy: I cannot recall whether I knew at 26th August that this was the case. It became apparent as things went on that this was a crucial issue, but I cannot remember at what point it entered my mind.
Malcolm: Mr Hardy, when were you first advised that we were seeking from you the written notes from which you were reading when we had our 20th May telephone conversation?
Hardy: I cannot recall the reference to that written note coming up until, I think, this trial, when I think you produced the point.
Malcolm: You cannot recall a reference coming up until a couple of days ago - when I gather you suddenly remembered it?
Hardy: You asked me when I first knew we were being asked for a specific document?
Malcolm: Yes.
Hardy: That is to say, the notes that I had when I was talking to you on 20th May?
Malcolm: Correct.
Hardy: The first that I can recall being asked about that document was, I think, when you referred to it at this trial.
Malcolm: At this trial?
Hardy: I think that is right, but my recollection is hazy even on that.
Lightman: Can you help me, Mr Hardy? The note from which you spoke on the phone, was that destroyed shortly afterwards, or was it kept?
Hardy: It must have been, because it was not in the file.
Lightman: As a matter of practice, if you had a note to speak to on matters on the telephone, would that be destroyed or would you put it back in the file?
Hardy: It depends how formal or important it was. I was only reminded that there had been any such note when I read the transcript of the conversation, where I said words to the effect that "I have made a note about some points that I wanted to discuss with you", and my assumption is that I had written on a scrap of paper the main headings I wished to cover; and having covered them on the telephone I had no further need of the note.
Lightman: So your best recollection would be just of some scrap of paper.
Hardy: A scrap of paper, thrown away at the time. Had I thought it worth putting on the file after the conversation it would naturally have remained there.
Malcolm: Mr Hardy, could I turn you now to page 38 of the black file.
Lightman: We are getting on now to about 10 past 4. Can you tell me how much longer you are likely to be?
Malcolm: I am running out of steam myself, my Lord. I will just be another five mintues.
Lightman: You will finish your cross-examination, will you?
Malcolm: Yes, I think so. Page 38 of the black file. This is an order served on the Press by Master Barratt - or ordered by Master Barratt and served by me on 8th August, the order is dated 8th August 1988. It is ordered that:
"the Defendants do, within 14 days, by their proper officer or officers, who if not deposing from their own knowledge shall state their source or sources of information and grounds for belief" etc.Over the page the schedule of documents sought:
"(a) Notes or memoranda made by Mr Henry Hardy of for or about his telephone conversations with the Plaintiff or with Alan Ryan or with Galen Strawson about the Plaintiff's work entitled Making Names."
Hardy: Mmm.
Malcolm: In response to that the Press served to me an affidavit sworn not by you but by Mr Ivon Asquith. I submit that the "proper officer" who should be deposing as to the existence or otherwise of telephone notes is the officer who made them.
Lightman: Could I just say, your criticism on these matters lies really at the solicitors for the Defendants, not for this witness, does it not?
Malcolm: Possibly, my Lord. But at paragraph 2, page 20 of the yellow file, Mr Asquith deposes as follows:
"I have been advised by Mr Henry Hardy that he did not make notes or memoranda during his telephone conversations with the Plaintiff, Alan Ryan, or with Galen Strawson."
You have just said that this question of seeking the notes from which you read during that conversation has not been raised with you until this trial.
Lightman: It is fair to say he says:
"I have been-advised by Mr Henry Hardy that he did not make notes ... during his telephone conversation"
and so far as all of us know, that is correct. You complain the question may be the wrong question that was put, and that is a matter, as I say, for the Defendants' solicitors to answer for, not this witness.
Malcolm: I agree, my Lord, but I think Mr Hardy has said the question has not been put.
Lightman: I thought the question had not been put about the notes on which he conducted that telephone conversation.
Malcolm: I think I have no further questions, my l.ord.
Court adjourned at 16.15 hours.
Court resumed 15th March 1990 at 10.30 am.
MR H. R. D. HARDY - previously affirmed - re-examined by MR WARBY
Warby: I have just a couple of questions, Mr Hardy. Could you take up the blue bundle and go to page 60. You were asked about paragraphs 18 and 19 there. In 18 you said you believed that at the meeting on 17 July Mr Charkin indicated that another opinion on the book would be needed. Then in paragraph 19 you talk about causing the book to be sent to Mr Strawson, who read it and sent it back. It was pointed out to you by Mr Malcolm that the report from Mr Strawson was asked for on 11th July.
Hardy: Yes.
Warby: You remember you looked at B.57 which was Mr Angus Phillips' note to Mr Strawson.
Hardy: Yes.
Warby: And you accepted from Mr Malcolm that it could not be right, therefore, that that report had been sought as a result of any request by Mr Charkin.
Hardy: Yes.
Warby: Could you comment, then, on why it would have been that that report was asked for?
Hardy: Yes. I now realise that paragraphs 18 and 19 represent a somewhat telescoped account of what really took place. On further consideration and looking at the documents, it is plain that the request for a further report or opinion was asked for at an earlier stage and was available actually by the time of the 17th July meeting. When exactly that further report was asked for, or by whom, I cannot be sure, but I note that on the Publishing Proposai Form dated, if I remember correctly, 18th June there appears at the top in the handwriting of Will Sulkin, the head of the General Books Department, the words "Adam/Galen Strawson", which appears to be a note made by him of a request made to him - to me via him - that such further opinions should be sought, and indeed they both were sought and obtained - as appears from the papers, the one from Galen Strawson you have already referred to and the one from Adam Hodgkin is handwritten on a note, which also appears in the file. My assumption is that either the Publishing Proposal Form was taken to another meeting similar to the one on 17th July, but beforehand; or that the Publishing Proposal Form was discussed informally with the Oxford Publisher at an earlier stage, who made plain on that occasion that a further report would be advisable before the Form was brought formally to a meeting. Which of those two it was I cannot recall.
Warby: Would you look at page 61 of the blue bundle, paragraph 24 of your statement.
Hardy: Yes.
Warby: You were asked about your explanation for having omitted from your letter responding to Mr Charkin's disciplinary letter any reference to the Delegates, and I think it was suggested by Mr Malcolm that your explanation was incredible.
Hardy: Yes.
Warby: Would you look in the red bundle at page 31. We see at lines 176-7 you refer to the Delegates there.
Hardy: Yes.
Warby:
"have to agree on everything that is published."
Then at page 32, line 203, another reference to the Delegates, and again at page 33, lines 265-268, you say:
"Alan is sympathetic towards the book and would like to be able to recommend its publication to the Delegates wholeheartedly."
Hardy: Yes.
Warby: At the end of that telephone conversation on 26th April 1985, what did you think you had conveyed to Mr Malcolm as far as the need for the Delegates' approval was concerned?
Hardy: I think it is quite clear that I had conveyed to him that the Delegates' approval was a necessary condition of undertaking to publish his book.
Warby: Can you remember whether it was your impression that he had understood that, or not?
Hardy: My words are plain enough. I did not ask him "Have you understood?" I assumed since he did not question me on the procedure that it was plain, as explained.
Warby: Thank you, Mr Hardy. I have no further questions, my Lord.
MR H. R. D. HARDY questioned by MR GAVIN LIGHTMAN
Lightman: Could it be that in your statement, Mr Hardy, when you refer at page 58A, your amended statement, to this reference to requirements to be undertaken before a commitment was entered into that you had in mind what had been said in this conversation of 26th April?
Hardy: I may have had it in mind.
Lightman: And could it be that that really is all that you had in mind?
Hardy: It could be.
Lightman: Because as I understand it, you do not have any specific recollection of anything other than what was said on the occasion of 26th April in regard to these matters. You do not have a specific recollection of having said anything about the need for an internal editorial meeting or the need of a Delegates' meeting otherwise than what we see in the transcript at pages 31, 32 and 33?
Hardy: I am not sure that I can answer that question without asking for guidance as to what you mean by 'a specific recollection', my Lord.
Lightman: I will tell you my difficulty. My difficulty is we appear to have a complete transcript of the telephone conversation of 20th May.
Hardy: Yes.
Lightman: It is fair to say I find it difficult at the moment to see how that should not be accepted as a full record of that telephone conversation.
Hardy: Yes.
Lightman: I cannot at the moment see, therefore, how we can really read in at any of the points suggested a conversation to the effect set out at page 58A in the course of the conversation of 20th May.
Hardy: That is one reason why the amendment was made, to suggest the possibility that I may be having a correct recollection but of something said in another conversation.
Lightman: I am wondering whether the likelihood is that it would be this conversation of 26th April, because at the moment we have no clear evidence of any other conversation when this might have taken place.
Hardy: The difficulty, my Lord, with assenting straightforwardly to that as a likelihood is the recollection that I have does not match the exchange that is in the 26th April conversation very closely.
Lightman: It does not, no. There is no reference to the editorial meeting.
Hardy: And there is no reference to my comments having been occasioned by an inquiry by Mr Malcolm as to whether he could safely proceed, which is what comes into my recollection.
Lightman: There is nothing further you want to say in regard to the matter I have raised with you?
Hardy: Can I make one further point, my Lord, which is that in the letter dated on the following day after the 20th May conversation - perhaps I might have this open while we are here - can I be directed?
Lightman: Page 45 of the red bundle.
Hardy: This is the letter dated the day after the telephone conversation with which your Lordship is concerned. In that telephone conversation I say, referring to the Author's Publicity Form, that:
"I shall base on this what I say about the book to the Delegates"
and here I am alluding to the Delegates as if their existence and role is understood by the Plaintiff. This seems to me to confirm my recollection that I must have referred to the Delegates to the Plaintiff recently. Otherwise presumably this is a reference back to my explanation of 26th April, which is a month or more.
Lightman: But if we look at the last paragraph, you say:
"I am pleased that we are going to do your book",
not "I am pleased that we are going to do your book if the Delegates or an editorial meeting agree that we should."
Hardy: I think that is understood as a background to that remark.
Lightman: But it is a strong expression to say "I am pleased that we are going to do your book" if the position is still totally tentative, dependent upon editorial decision and Delegate decision.
Hardy: Yes, my Lord. But I had no expectation that there would be any difficulty about going through the remaining procedures, and that is why I was rash enough to express myself in those terms.
Lightman: Any other questions anybody wants to raise arising out of what I have asked? Do you want to ask anything, Mr Malcolm?
Malcolm: I do not think so, my Lord.
Lightman: Thank you bery much for your help, Mr Hardy.
Witness released.
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.