England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Laddie)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mr. Rupert Allason (who has appeared in person) seeking permission to appeal from an order of Laddie J made on 16th October 2001 in the Chancery Division. Mr. Allason and his service company, Westintel Research Limited, had sued Random House UK Limited for copyright infringement by publication of a literary work entitled The Enigma Spy: An Autobiography, by the late John Cairncross. Laddie J heard the action over four days after a reading day between 8th and 12th October 2001, and he dismissed the action with indemnity costs.
2. The background to the action is a strange and complex story. John Cairncross was a senior civil servant whose career began before the Second World War. He joined the Foreign Office in 1936 after taking a degree at Cambridge. He spent many years close to the heart of government, latterly in the Treasury. After he was compelled to leave the Civil Service in 1952 he worked in the United Nations Food and Agriculture Organization. He had worked for the Secret Intelligence Service, including a spell at Bletchley Park during the war. After Hitler's rise to power he did by his own admission pass British intelligence secrets to the Soviet Union, both before and during the war, including secrets from Bletchley Park. Mr Cairncross said that he was motivated solely by his abhorrence of Nazism. He denied continuing those activities after the end of the war. He denied being the so-called Fifth Man, the others being Maclean, Burgess, Philby and Blunt. The judge said of Mr. Cairncross:

"He was, by all accounts, an extremely intelligent, well-educated and cultured man. I was told that he came first in both the Home and Foreign Civil Service Exams, which is still a unique achievement. He was, apparently, recognised in French circles as a leading authority on Moliere. Prior to the writing of 'The Enigma Spy' he had written and published a number of books. As Mr Allason put it to me, Mr Cairncross was a man of great scholarship."

3. Mr Cairncross was also a friend of Graham Greene. These facts seem to me relevant not only as background. Mr Cairncross was not, while he was in the possession of his faculties, the sort of so-called celebrity whose memoirs would be unreadable without the services of a ghost writer.
4. In 1983 Mr Cairncross was living in Italy. He was permanently separated from his wife. He met Miss Gayle Brinkerhoff, a talented opera singer who was then in her early 30s. Despite the large difference in age they fell in love and lived together from 1985 until Mr. Cairncross's death in 1995. They lived first in Italy, then in France, and finally, although for barely six months, in England. At the very end of his life Mr Cairncross was free to marry and he married Miss Brinkerhoff. I will refer to her as Mrs Cairncross.
5. While they were living in Italy Mr Cairncross did a lot of writing on a variety of topics, mostly in the English language, but sometimes in French. He also did some editing and translation work. He began work on an historical study of the Munich Accord of 1938. In 1990, after they had moved to France, Mr Cairncross decided to expand his work on Munich so as to include passages dealing with his earlier life. Later, partly it seems as a result of the publication in 1991 of the work called KGB: The Inside Story, Mr Cairncross thought of developing these texts into a fullscale work of memoirs which would refute the suggestion that he was the so-called Fifth Man. Mrs Cairncross was closely interested in this work. She described in her witness statement the new chapters for the proposed work which Mr Cairncross produced during 1991. In November 1991 the couple first acquired a personal computer. Previously Mr Cairncross had used a typewriter. Mrs Cairncross was more adept at the computer than Mr Cairncross. She transferred much of the work onto it. Work continued during 1992 and 1993.
6. In September 1993 Mr Cairncross had a severe stroke. He was in hospital for four or five months. When he came home in February 1994 he was still disabled, especially as regards his facility for speech and short term memory. He was being treated by two neurologists. He was also receiving speech therapy.
7. In August 1994 Mr Cairncross gave a copy of his manuscript as it then stood to an old friend, Mr McTaggart. About seven months later Mrs Cairncross sent a similar but revised manuscript to her solicitor, Mr Benedict Birnberg. These two events were not of central importance but they provided an independent check of the state of the work before Mr Allason had any input into it.
8. Mr Allason is a well known and successful author who writes non-fiction works on espionage under the name of Nigel West. He was also until recently a Member of Parliament. Mr. Allason had met the Cairncrosses before but for practical purposes the immediately relevant events began on 30th September 1994 when they had lunch together at Antibes. It is not in dispute that during the discussion at lunch an arrangement of some sort, not necessarily a commercial enforceable agreement, was reached, but from the evidence there was a serious misunderstanding, to put it mildly. Mr Allason's evidence was that there was an agreement for collaboration. Mrs Cairncross's evidence was that she understood that Mr Allason was to help out of friendship in finding a publisher for the memoirs. The misunderstanding, if that is the right word, seems to have continued unresolved for the rest of Mr Cairncross's life and for some months after his death.
9. The judge considered the events of this period in detail, having the assistance of relatively few contemporaneous documents. The parties generally communicated by telephone. I propose to identify only a few particularly important dates and a few particularly important controversies. I shall then turn to the grounds of appeal.
10. After the lunch at Antibes Mr Cairncross sent a fax to Mr Allason on 8th October 1994. Unfortunately no copy of the fax has survived. Mr. Allason replied by fax on 16th October with a list of topics, the nature and purpose of which was the subject of a good deal of discussion during the trial. Mr Allason's case at trial, although not his pleaded case, was that at about this time there was an oral agreement about division of the intellectual property rights in Mr Cairncross's work between Mr Cairncross and Mr Allason in order to facilitate the clearance by the Secret Intelligence Service of the work for publication. On 3rd November 1994 Mrs Cairncross sent two disks containing matter produced by Mr. Cairncross to Mr Allason at his London address. Shortly afterwards, she sent more copies to him at his Bermuda address as he was travelling there (or about to do so). Later Mr Allason was staying at Zermatt and Mrs Cairncross telephoned him there. Mr. Allason has also drawn my attention this morning to a letter which Mrs Cairncross wrote to a friend on 22nd December 1994, referring to her difficulties in approaching a publisher until there was a complete manuscript and referring to their receiving the help of another person. It is common ground that that other person was Mr. Allason.
11. There were factual issues at trial as to whether Mr. Allason was expected to undertake work (on the one hand) as a ghost writer or (on the other hand) editorial work on the material which was sent to him. There were also factual issues as to the nature of the work which he actually did (whether the Cairncrosses were expecting it or not) and as to when any such work was carried out. Mr. Allason's pleaded case was that he started work in April 1995. His case in his witness statement was that in November 1994 Mrs Cairncross

"supplied me with a diskette containing assorted notes and some draft chapters written by John. They were fragmented, in no particular chronological order, and were in a form that was quite unpresentable, likely to deter any potential publisher. On 15th November 1994 I began work in earnest on the project and over the following four months I transformed John's disjointed notes into a coherent, articulate manuscript which I was confident would be acceptable to a publisher."

12. Mrs Cairncross's evidence was that she and Mr. Cairncross were not expecting re-writing but an appraisal of the book and advice about publishing prospects. She also said that Mr Allason told her by telephone that he had not been able to obtain ready access to the material because of formatting and other difficulties, and that at the end of March 1995 she supplied him with new disks with the material in manageable blocks.
13. This was about the time that the Cairncrosses moved to England, mainly because of advice that it would be better for Mr. Cairncross to receive speech therapy from an English practitioner and in the English language. They stayed in rented accommodation, first short term in Oxfordshire and Gloucestershire, and then in Herefordshire.
14. At some time in the first half of May the Cairncrosses entertained Mr Allason to lunch. This meeting was important, if only because it seems to have been one of relatively few face-to-face meetings which took place between the parties. Mr Allason proposed that he should write an introduction to the book. He mentioned his connection with the St Ermin's Press which had been incorporated in Bermuda in February 1995. It may be that he had mentioned the Press to the Cairncrosses at least once before. Mr. Allason's relationship with the St Ermin's Press was another subject of controversy at trial.
15. At the lunch meeting various problems seem to have surfaced (or to have come near the surface) but not to have been resolved. Mrs Cairncross said that she was surprised by Mr Allason having amended the manuscript (as he showed them he had) and also by his saying "So John didn't know that he was the Fifth Man." Nevertheless Mrs Cairncross was glad of Mr Allason's interest and, superficially at least, relations remained friendly.
16. On 22nd May 1995, soon after the lunch meeting, Mr. Allason sent Mr. Cairncross a letter of intent. There was a covering letter which said, among other things:

"I enclose herewith a letter of intent which will be the prelude to John's contractual relationship with St. Ermin's Press. It will also give me a little security as I now propose to devote myself to the project. If John concurs, please ask him to sign and return in the stamped addressed envelope."

17. The agreement which Mr Allason had drafted was to be between Mr Cairncross and the St. Ermins Press. It was quite short. Having mentioned the parties, it said:

"UNDERTAKE to collaborate in a publishing venture to prepare and publish a book entitled AGENT FOR THE DURATION: MEMOIRS OF THE FIFTH MAN, being the autobiography of John Cairncross.

IN CONSIDERATION FOR WHICH John Cairncross assigns all the British and Commonwealth Rights to the book to St. Ermin's Press, on the understanding that a standard royalty contract on mutually agreed terms will follow; a separate agreement to be made in respect of the American Rights."

18. After reading these documents Mrs Cairncross wanted to obtain legal advice but Mr Birnberg was not available. Her evidence was that Mr Cairncross signed the document on the occasion of a later visit by Mr Allason on 4th June 1995 because Mr. Allason assured him that he could tear it up if he changed his mind. Mr Allason signed the document in the name of Nigel West on behalf of St. Ermin's. On that occasion Mr. Allason gave the Cairncrosses a copy of the amended manuscript and a copy of his proposed introduction. Mrs Cairncross's evidence in her witness statement was that:

"... there was no suggestion by Rupert that we should pay him for having written an introduction or for suggesting amendments to the text. Nor did Rupert ever give any indication that he had any such arrangement with St. Ermin's Press, or that he was to be paid by them. It was my understanding that Rupert was always acting on behalf of St. Ermin's Press."

19. Mr Allason asked for particulars of the Cairncrosses' joint bank account, without saying why, and on 13th June 1995 the sum of £3,000 was credited to the account. This was not an agreed advance. Later, after the death of Mr Cairncross, it was repaid.
20. In August 1995 Mr Cairncross had another stroke and was admitted to hospital. At about the same time his first wife died. Mr Cairncross married Gayle Cairncross on 8th September 1995 and he died on 8th October 1995. Mrs Cairncross continued negotiations with Mr. Allason, assisted by her brother-in-law and by Mr. Birnberg. She pressed for a contract with the St. Ermin's Press. None was produced until 19th January 1996 when Mrs Cairncross, who was her late husband's administratrix, received two contracts, one between herself and St. Ermin's, and the other between herself, St Ermin's, and Little Brown, the American publishers.
21. The next few months were occupied by unsuccessful negotiations, the details of which it would not be useful to recount. By October 1996 it was clear that the work was not going to be published by St. Ermin's. On 4th October 1996 Mr Allason's service company sent Mrs Cairncross an invoice for £15,000 plus VAT for his professional services. This was rejected and never paid, either by Mrs Cairncross or by Random House UK Limited, which published the work challenged in the litigation as an infringement of copyright claimed by Mr Allason (with whom I include his service company).
22. The judge reached the forthright conclusion that Mr Allason's claims were an invention; indeed, that he was putting forward two inconsistent invented claims, one relying on an oral assignment at some time close to 16th October 1994, and the other relying on his own authorship. The judge rejected much of Mr Allason's evidence and accepted Mrs Cairncross as a witness of truth. He said of her:

"In my view, she was a compelling and obviously truthful witness. It was apparent that she found this whole episode very distressing. Not only was she made to trawl over a period of her life which was full of personal sadness but she was made to respond to allegations of dishonesty put to her by a person who she once valued as an honourable, unselfish friend. She conducted herself throughout with dignity and self-restraint. There was no significant point on which her evidence was inconsistent with the contemporaneous documents. I accept her evidence and her version of events."

23. The judge went on:

"It follows that I reject each of the ways in which Mr Allason has put his case. These memoirs were written by John Cairncross. At the very most, Mr Allason gave editorial assistance. The alleged oral contracts are pure make-believe."

24. The judge then said that he had deliberately postponed his assessment of Mrs Cairncross's testimony until the end of his judgment because he had thought it right to assess Mr Allason's case on its inherent probability and its consistency with contemporaneous documents.
25. Mr Allason has put forward five grounds of appeal, the last three of which are limited and self contained points. His two main grounds of appeal are much more far reaching; first, that the evidence showed that Mr Allason had ghosted the work using material supplied to him for the purpose and that the dates of his work had been conceded at trial but were not correctly recorded in the judgment, and, second, that (again, contrary to the judgment) Mr Allason's evidence of an oral assignment of copyright was consistent with the contemporaneous documents.
26. These two main grounds of appeal are developed in the first 26 paragraphs of Mr. Allason's 29 paragraph skeleton argument. I have carefully studied all 29 paragraphs, but it would not be appropriate or indeed possible on the hearing of an application for permission to appeal to consider each of them separately and in detail. On analysis they are concerned with three main issues or groups of issues. First, the timing, character, quantity and quality of the work which Mr Allason carried out on manuscripts passed to him on disk by Mrs Cairncross either in November 1994 or at different times after that - see paragraphs 1 to 7, 16 and 18 to 20 of the skeleton. Second, the existence, timing, character and purpose of the oral assignment of copyright which Mr Allason did not plead or refer to in his opening skeleton, but which he said in cross-examination had been made by telephone immediately after 16th October 1994 - see paragraphs 9 to 13 of his skeleton. Third, the part played by the St. Ermin's Press and Mr Allason's relationship with it - see paragraphs 1 to 24 and 26 of the skeleton. That leaves paragraphs 8, 17 and 25 which I do not need to address, except to say that the finding of fact in paragraph 25, that Mr Allason knew the contents of a letter sent to Random House Limited by his literary agent, was one open to the judge who saw and heard the witnesses.
27. I must consider the three main groups of issues. The first goes to whether the Cairncrosses intended Mr Allason to act and, more importantly, whether he did in fact act as a literary ghost so as to make him an author or co-author, or whether his work was essentially that of an editor performing in advance the task which would normally be performed by a copy editor after a manuscript had been accepted by a publisher. Questions of timing go partly to the consistency of the evidence, with known documents and events, and partly to its inherent credibility. There was an issue as to timing and Mr. Allason's pleaded case and his evidence were inconsistent. This is something which was explored in cross-examination - see pages 24 to 25 and 37 to 38 of the transcript of evidence for 10th October 2001. Mrs Cairncross gave evidence as to the difficulties which Mr Allason said he was having in accessing the text and as to what she did about that. Mr. Allason told me this morning that that was wrong and that he had no difficulty in accessing the material. However, the judge, who saw and heard the witnesses, made findings on that.
28. The judge was particularly impressed by one piece of documentary evidence, that is Mr. Allason's letter of 22nd May 1995, in which he said that he proposed to devote himself to the project, a letter which was hardly consistent with his having already carried out the bulk of the task. Mr. Allason has told me this morning that he was referring to the large amount of editorial and other work which still has to be done after acceptance of a manuscript by a publisher. However, that is a matter on which the judge saw and heard the witnesses and made findings.
29. The quality and quantity of Mr Allason's input was examined in detail at trial, partly by reference to schedules with page by page analysis of the various manuscripts and the work as eventually published. It seems to me not arguable with any prospect of success that the trial judge, who is very experienced in intellectual property matters, made any error of law as to the concepts of authorship and co-authorship which are relevant to copyright, or that his conclusion on the facts that Mr Cairncross was the sole author is one which was not open to him.
30. Mr Allason has criticised the judge for referring to the work as a biography rather than an autobiography, the word which appears in the title of the eventual publication. I think it is possible that the judge did this in case, in view of the issues which were before him, the term autobiography should be thought tendentious. In any event, I do not think that there can be any clear preconception about the amount of reported speech, whether reported directly or indirectly, which one would expect to find in a biography on the one hand or an autobiography on the other hand.
31. Mr Allason says that he did challenge the proposition found in paragraph 93 of the judgment that 95 per cent of the manuscripts came from pre-existing writing by Mr Cairncross. There is at least one passage in the transcript (pages 8 to 9 of the transcript of 10th October 2001), when Mr Allason appeared to accept that. However, it has to be said that this topic, like many others, seems to have been revisited several times in the course of the evidence. The passages are by no means consistent. Whether that point was challenged or not, the judge made a finding to that effect. I do not think that it is reasonably arguable that the finding was not open to him. All these observations are relevant to Mr Allason's first ground of appeal in what I have called the first group of issues.
32. The second ground of appeal, and the second group of issues, revolve around the alleged oral assignment. Mr Allason's original case (as pleaded by counsel when he was retaining solicitors and counsel) was based on his having the copyright because he was the author, not because copyright had been assigned to him by agreement. At trial, Mr Allason wished to rely on an oral assignment which at first he timed as having taken place on 30th September 1994, that is in the course of the lunch at Antibes. At the beginning of the trial Mr Allason sought leave to put his alternative case. In spite of fairly strong objections by counsel for Random House, the judge permitted him to do so. He recognized that the defendants might have to seek an adjournment but in the event they did not do so.
33. When he was cross-examined on this part of the case Mr Allason sought to clarify his case - see especially page 12 of the transcript for 10th October 2001 - by explaining that there was what he described as a two stage process, first at the lunch on 30th September a straightforward 50/50 collaboration, and then, after Mr Allason had given more thought to the legal difficulties of publishing the memoirs of a former Secret Intelligence Service officer, a proposal that he, Mr Allason, should have the British and Commonwealth rights, with Mr Cairncross having the American rights. Mr Allason's eventual position was that there was an oral agreement by telephone immediately after 16th October, and he has criticised the judge for understanding his case to be that the conversation was on 16th October.
34. Whatever dates are taken for the two stages of this alleged two stage agreement, the judge was plainly right in his view that Mr Allason was putting forward two inconsistent cases, one of which had not been pleaded, only took its final shape during his cross-examination (see in particular page 13 of the transcript of 10th October 2001), and was not supported by any contemporaneous documentation. Whether or not it was or would have been a plausible means of obtaining official clearance for publication seems to me to be a matter of relatively little importance.
35. The third group of issues, concerning the St. Ermin's Press, goes largely to credit. Mr Allason's case was that he was a mere talent spotter and later an editorial consultant for the St. Ermin's Press, which was, he said, run by two principals in Bermuda, Mr Elliott and Mr Kistiakowski, and that he had no proprietary stake in the company or authority to act for it, except for a specific ad hoc authority to conclude a deal with Mr Cairncross. This case seems to me to have become increasingly frayed, and I am not impressed by the points which Mr Allason makes in paragraphs 21 to 24 and 26 of his skeleton.
36. That leads on to Mr Allason's third ground of appeal, in which he complains of a serious irregularity on the part of the judge. During closing submissions reference was made to two websites, those of the two claimants. Mr Allason had been cross-examined about his service company's website describing him as an editorial director of the St. Ermin's Press. Mr Allason said that his own website, www.nigelwest.com, was accurate and, (although he tells me this morning that he did not, contrary to the judge's impression, invite the judge to look at the website) after he had reserved judgment the judge availed himself of what he supposed to be Mr Allason's invitation. He recorded the results at the end of his judgment.
37. It would have been better, I think, if the judge had resisted the temptation to pursue that line of inquiry after he had reserved judgment. However, it seems to me clear from his judgment that it did not affect either his approach to the task of preparing his judgment, except for the last few paragraphs tacked on the end, or, more importantly, the outcome of the case. If it was an irregularity it is not arguable that it was a serious one or that it could possibly have given rise to a miscarriage of justice.
38. There is nothing of substance in the fourth and fifth grounds of appeal. One is, in my view, despite Mr Allason's arguments to the contrary, simply an attempt to pierce the veil of "without prejudice" correspondence. The other seem to be a point to be raised, if at all, in the course of the detailed assessment of costs.
39. I have thought it right to go into this matter at much more length than would normally occur on the hearing of an application for permission to appeal because the matter is of great importance to Mr Allason, both as regards his finances and as regards his reputation. However, having done so, I can see no prospect whatsoever of a successful appeal. An appeal would be hopeless and I dismiss this application.
Order: Application dismissed.