Malcolm v Oxford University Press

Reference: [1994] EMLR 17

Court: Court of Appeal

Judge: Nourse, Leggatt & Mustill LJJ

Date of judgment: 18 Dec 1990

Summary: Contract - publishing - certainty - remedies


Instructing Solicitors: Dallas Brett for the Defendant


The claimant wrote a book on philosophy and entered into discussions with an OUP editor with a view to its publication. In a telephone conversation the editor stated that he was offering a commitment sufficient to take the claimant through the last stages of revision, offering a ‘fair royalty’ but no advance. The following day the editor wrote stating that he was pleased OUP was going to do the claimant’s book. The book, after revision, was rejected by OUP and the claimant sued, claiming specific performance or alternatively damages. OUP denied any contract had been made, and resisted specific performance. At trial the judge (G Lightman QC, sitting as a deputy) held that no legally enforceable contract had been made and that specific performance would have been refused in any event. The claimant appealed.


Whether the judge was correct to hold (1) that no contract had been concluded. (2) that specific performance would be refused in any event.


Allowing the appeal (Mustill LJ dissenting) (1) A contract had been concluded. It was sufficient that the parties had agreed on the publication of the book for a stated consideration. There was a contract, conditional on the claimant’s revisions making the book no worse; and it was common ground that they had not done so. (2) There was no reason to interfere with the judge’s exercise of his discretion as to specific performance; an order would be made for an inquiry as to damages.


The case was clearly borderline – witness the fact that the four judges who dealt with it were equally divided on the correct outcome. The majority in the Court of Appeal clearly had sympathy for the author’s predicament. The decision will have brought comfort to authors who strive for publication on the strength of verbal commitments, sometimes in vague terms, from prospective publishers.