Malcolm v Oxford: settlement agreement 1/7/92
- ️Thu Mar 15 1990
IN THE HIGH COURT OF JUSTICE Ref. no. Ch. 1986 M. 7710
between
ANDREW MALCOLM Plaintiff
and
THE CHANCELLOR, MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD Defendant
CONSENT OR 'TOMLIN' ORDER OF CHANCERY MASTER BARRATT, 1st July 1992
Chancery Division CH1986-M-7710, hearing before Master Barratt, Wednesday 1st July 1992, Order endorsed 16th July 1992
UPON THE APPLICATION of the Plaintiff and the Defendant
AND UPON HEARING the Plaintiff in person and the Solicitors for the Defendant
AND UPON READING the documents recorded on the Court File as having been read
AND the Parties having agreed to the terms set forth in the Order Schedule annexed hereto and to there being no Order as to costs
IT IS BY CONSENT ORDERED
(1) that the Fund in Court be dealt with as directed in the Payment Schedule annexed hereto and that this be in full and final settlement of all causes of action herein
(2) that all further proceedings in this Action except for the purpose of carrying the said terms into effect be stayed
SCHEDULE
1. The balance of the funds held in Court to the credit of this action, namely £XXXXX plus interest accrued since 2 May 1991, shall forthwith be paid out to the Plaintiff in full and final settlement of all causes of action herein, as directed in the Payment Schedule annexed hereto.
2. The Plaintiff's Appeal and the Defendants' Respondents' Notice shall be dismissed by consent, such forms of dismissal by consent to be signed exchanged and lodged on the date hereof.
3. The Defendants will use their best endeavours to procure letters of agreement of Sir Michael Atiyah, Dr. Lauchlan Glenn Black and Miss Anne Smallwood not to enforce the Order for taxation of their costs made by Master Barratt on 9 March 1990 or any other costs claims against the Plaintiff, such letters of agreement from the solicitors for the abovementioned to be addressed and handed to the Plaintiff on the date hereof.
4. Subject to the fulfilment of Clause 3 above, the Plaintiff will forthwith release Sir Michael Atiyah, Dr. Lauchlan Glenn Black and Miss Anne Smallwood from any and all claims arising out of or in connection with these proceedings.
5. Each party hereby agrees to bear its own costs of the action notwithstanding any Order for costs made in these proceedings.
6. From the date hereof both the Plaintiff and the Defendants will keep strictly confidential and not disclose, nor cause, permit or howsoever otherwise procure the disclosure of, the terms of the agreement herein to any third party, save as required by law, and save that the terms of the agreement herein may be disclosed to the parties' professional financial advisers and to Clifford Chance and Harvey McGregor QC (for the Defendants) and to Richard White (for the Plaintiff) on condition that the aforesaid agree not to disclose the terms to any third party. These undertakings of confidentiality apply to the terms of the agreement herein but not to the fact of the settlement and when questioned concerning the settlement, the parties shall reply with words to the following effect: "The parties have agreed to settle their outstanding claims but are bound by mutual undertakings of confidentiality and accordingly are not at liberty to discuss or comment upon the terms of the settlement".
7. The Defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names. For the purpose of giving effect to this undertaking, the Defendants may disclose the text of this term to their servants and agents from time to time. The Defendants further agree to request Alan Ryan, Henry Hardy and Richard Charkin not to publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff or about the merits or quality of the Plaintiff's work Making Names.
8. The undertakings contained in Paragraphs 6 and 7 hereof are of unlimited duration.
9. Subject to the fulfilment of the terms hereof, the Plaintiff forthwith releases the Defendants, and the Defendants forthwith release the Plaintiff, from any and all claims arising out of or in connection with these proceedings.
Dated the 1st day of July 1992
New posting, January 2007: The party-party correspondence with Oxford's solicitors Clifford Chance that led to the above settlement agreement. Click for the first item + preamble in this linked series or for the correspondence index.
Notes by Andrew Malcolm
Clauses 7 and 8 render Making Names unique in the history of literature. So far as anyone knows, it is the first time that a university (and at that supposedly England's grandest) has ever been bound to the non-denigration of a book (and at that an evidently controversial one). Note that this is not a general restriction of free speech, but, given the history, the perfectly proper condition imposed upon the staff of a commercial publishing house that has breached its contract and then defended its breach and been defeated at law.By the time of the agreement's signing, the three individuals named in its Clause 7's third sentence, Alan Ryan, Henry Hardy and Richard Charkin, the three key players in the fiasco, had all left Oxford and OUP. Hence they could be covered only by the third sentence's lower-level 'request' stricture. Oxford's solicitors Clifford Chance did comply with this term, but in a strange, Freudian-slippery way, betrayed by the botched subject headings in their letters to Henry Hardy and Alan Ryan, copies of which were sent to me months/years later.
Two days before the agreement's signing, Clifford Chance had requested the insertion of Clause 7's second sentence and sent me a copy of "an instruction to be issued to the defendants' servants and agents". This memorandum reads:
The Press [OUP] and Andrew Malcolm have agreed to settle their outstanding claims, but are bound by mutual undertakings of confidentiality as to the terms of the settlement. However, since it is binding upon you, you should be aware that one of the settlement terms reads as follows:
'The defendants agree that they, their servants and agents, or any of them, will not publish or solicit the publication of any derogatory statements, letters or articles about the Plaintiff (Andrew Malcolm) or about the merits or quality of the Plaintiff's work Making Names."
It later transpired (was confirmed in court) that Clifford Chance never circulated any such memorandum to the university's (or even OUP's) servants and agents, or to anyone.
In April 2001 Clause 7 (this time a contract term in a Court Order) was duly breached by none other than Alan Ryan, the former OUP Delegate responsible for the whole 6-year £500,000 nightmare, and by then back at Oxford. This resulted in the renewed proceedings from August 2001 to March 2002, and, in turn to the opening in Oxford of Akme Expression. Ryan's defence, upheld by Mr Justice Lightman (the very same), pleaded that because Ryan was a Head of House (the Warden of New College), he was not, in the legal jargon, a "servant or agent" of the university, but instead stood in the relation to it of "an independent contractor", albeit one without a contract. The precedent case on which the university chiefly relied in this submission concerned the driver of an RMC bulk cement truck. So the corrosion begins. At the end of the hearings, on 24th January Lightman also ruled that because Clause 7 had entered the public domain (e.g. The Times Higher), it was no longer subject to Clause 6. Hence this posting. - A. M.
Go/return to Malcolm's Statement of Claim, the Chancery Court judgment, the Court of Appeal judgment, the Judgment extracts, the Case History, McGregor on Royalties (transcribed from the assessment hearing). Affidavits: Ivon Asquith (1), Ivon Asquith (2), Henry Hardy, William Shaw (solicitor) (1), Sir Roger Elliott (1), Margaret Goodall. Witness Statements: Sir Roger Elliott, Henry Hardy, Richard Charkin, Nicola Bion, Margaret Goodall. Courtroom testimony transcripts, 13-15/3/1990: Elliott, Goodall, Bion, Asquith, Charkin, Hardy, Malcolm.
CLICK FOR:
THE MALCOLM vs. OXFORD UNIVERSITY CASE INDEXES: I (1984-92) AND II (2001-02)
THE OXBRIDGE COLLEGE ACCOUNTS INDEX OR OUP ACCOUNTS INDEX
THE SURPRISING TRUTH ABOUT OUP'S 'CHARITABLE STATUS'
THE HISTORY OF AKME AND OF THIS WEBSITE
THE AKME OXFORD CUTTINGS LIBRARY
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