Holding out for poetic justice
14 January 1997
Poetry has to be one of the least likely subjects for litigation. While different areas of the arts have at times been catapulted into the legal arena, those engaged in the rarefied world of producing verse have tended to be the exception.
Which is why a case that created considerable ripples in literary circles but went largely unnoticed elsewhere is all the more remarkable. Settled in the summer of 1995, it was a triumph for the poet at the centre of it, a triumph for the legal team and it can be seen as a legal landmark for the literary world in general.
Alice Kavounas was among a group of poets scheduled to be published on the Sinclair-Stevenson poetry list.
But before the anthology containing her work was printed, Reed, the publishing giant, bought Sinclair-Stevenson and scrapped all plans for the book.
It had, however, reckoned without the down-to-earth tenacity of Kavounas, who called in solicitor Rory Khil-koff-Boulding, a lawyer with wide experience in showbusiness litigation, and barrister Francis Collaco-Moraes.
Plans were drawn up and a writ was issued suing Reed not just for damages for failing to honour the contract for publication of the poetry anthology, The Invited, but, more importantly, through a specific performance action, seeking a court order forcing Reed to honour the deal and publish the anthology.
"She was not interested in damages. She wanted to get an anthology of her poetry published. It was a prerequisite in order for her to enter a number of international poetry competitions," says Khilkoff-Boulding.
Although in the past legal moves of this nature have ended with payment of damages, the courts have fought shy of making orders compelling publication.
The reason for this, says Khilkoff-Boulding, is the difficulty in such cases of the courts overseeing the matter and ensuring that the order they have made is complied with.
He and Collaco-Moraes felt there were compelling arguments to show that there was in fact wide scope in this particular case for such an order to be properly supervised.
Nevertheless, they anticipated a fierce battle and even at the initial stages of the case they planned and prepared with an ultimate appeal to the House of Lords in mind. They were convinced that the case would probably go that far.
It was an action which they considered could set a major precedent in the literary world where it is far from uncommon for writers in all fields to find that promises to publish their work are not honoured.
"We were looking for the equitable remedy of specific performance. But the courts are reluctant to give this unless it is something they can oversee," says Khilkoff-Boulding.
"People had tried this in the past but the courts had only ever awarded damages."
In the end, however, the precedent-setting legal battle he and Collaco-Moraes were gearing up for failed to materialise. The matter ended with Kavounas getting the best result she could have hoped for - an early settlement by consent order with Reed, which, under the threat of full-scale litigation, agreed to publish after all.
"We believe it to be the first time anyone has compelled a publisher to publish a work," says Khilkoff-Boulding.
As a result of the settlement at least two other poets had their work published as well.
And while the case never reached a fully contested court hearing, Khilkoff-Boulding says he is in no doubt that the action has strengthened the hand of writers in the future should other publishers attempt to renege on deals they have made with them.