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The Sunday Times (30/Dec/2007) - James Bond would have shot the judge

(c) The Sunday Times (30/Dec/2007)

James Bond would have shot the judge

It was the case that nearly killed James Bond ...and Ian Fleming, too. Robert Sellers describes the battle for the soul of Thunderball.

It's the most fascinating and controversial episode in the history of James Bond.

So, why has nobody written before about the collaboration between the maverick Irish film producer Kevin McClory and Ian Fleming to make what would have been the first 007 film, back in 1960 - with Richard Burton as Bond, and Alfred Hitchcock directing? Instead, it led to Fleming being accused of plagiarism, a bitter court case, betrayals, deaths and broken lives.

Over the years, writers have been put off delving too deeply into the issues thrown up by this story because of the fear of lawyers descending. Cubby Broccoli, who launched the Bond series with "Dr No", in 1962, along with Harry Saltzman, always tried to ignore McClory. Intrigued by this murky subject, I hoped to pursue my own book on it, but I had to get the facts right. The problem was, nobody really knew what the facts were; the truth has always been elusive.

Then one day, I found it. Or, rather, her: Sylvan Whittingham Mason, the daughter of Jack Whittingham, the man hired by McClory in 1959 to write an original James Bond screenplay after Fleming himself had tried twice and failed. Fleming was no screenwriter, as he confessed in a letter to McClory. "The trouble about writing something specially for a film is that I haven't got a single idea in my head." So it was Whittingham who produced the first 007 screenplay, "Thunderball". My contact with Sylvan led to a significant discovery: several official-looking cardboard boxes. Inside were all the documents relating to the infamous 1963 plagiarism case involving Fleming: the actual papers used by McClory's legal team, unseen for more than 40 years. And private letters, several hundred of them, written by Fleming, McClory and other important players in this sad tale.

McClory's key lawyer, Peter Carter-Ruck, whose unrivalled client list included Winston Churchill, had taken charge of all these papers. When Sylvan helped to nurse him during a terminal illness, before his death in 2003, he passed them into her safe keeping. Just in time, too. He was hardly cold in his grave when many of the meticulously kept files from his cases were shredded. A fascinating and revelatory part of Bond history was nearly lost for ever.

Once Whittingham had completed his Bond screenplay, McClory took control of it and tried to raise finance; when the project eventually fell apart, Fleming journeyed to his Jamaican home, Goldeneye, to write his annual Bond novel. Once there, he found himself bereft of ideas. Under pressure from his publisher, he decided to take the easy way out and fashion a new novel from the discarded "Thunderball" script. Worse, he sought neither McClory nor Whittingham's permission, and did not acknowledge them in any way, instead passing off the work as his own. This was either utter naivety or mind-boggling arrogance. Considering Fleming the man, one leans towards the latter.

Thanks to these newly discovered files, we now know that Fleming was warned such action could land him in court. Ernest Cuneo, a legal adviser to Franklin D Roosevelt and Fleming's closest American friend, saw only a judicial minefield were he to publish "Thunderball" as his own. Fleming also asked a lawyer, Robert Fenn, in a letter, "to clear this copyright problem, otherwise we shall be faced with injunctions by McClory, which will be a great nuisance". An understatement indeed. Despite these worries, Fleming still signed a contract with Jonathan Cape - a copy exists in the files - guaranteeing the publisher that "Thunderball" was an original work and violated no existing copyright. It seems inconceivable that an author of Fleming's experience would have given such a warranty in the face of what he knew.

Nevertheless, this is exactly what he did, believing, perhaps, that his Establishment credentials - Eton, Sandhurst, naval intelligence - lent him superiority over the brash, working-class McClory, and that he could simply get away with it. If so, he had totally misjudged the Irishman, and the consequences were monumental.

When he read an early copy of the "Thunderball" novel in March 1961, McClory was incensed. He applied to the High Court in London to ban it. Suntanned after returning from Jamaica, and wearing an immaculate blue flannel suit and a blue-and-white polka-dot bow tie, Fleming sat at the back of the courtroom, listening as he was accused of plagiarism. After 90 minutes, the judge decreed publication was too advanced to be stopped. "Quite ghastly," Fleming said to waiting reporters. "I'm sure Bond never had to go through anything like this." McClory had lost the battle, but he fully intended to win the war, and to pursue further court action against Fleming, who was by then a dying man.

For some time, Fleming's friends had been concerned about his ill health and feared that his legal problems would serve only to exacerbate it. On April 12, a little more than two weeks after McClory's failed book injunction, Fleming suffered a heart attack. During the regular Tuesday-morning conference at The Sunday Times, he suddenly keeled over and went so white that one of his colleagues was convinced he was dying. Fleming was rushed to the London Clinic, where he remained for a month. Doctors saw the heart attack as a warning and ordered that he moderate his smoking and drinking. But how could the creator of James Bond not live life to the fullest? Fleming ignored the advice.

Recovery was slow, but the letters reveal that the "spectre" of another trial was an intermittent worry at the back of his mind for the next two years. As the date approached, he wrote to a friend, William Plomer, to say he was winding himself up "like a toy soldier for this blasted case with McClory. I dare say that a diet of TNT pills and gin will see me through, but it's a bloody nuisance". The TNT pills were nitroglycerine, prescribed to prevent another heart attack.

On November 20, 1963, the "Thunderball" trial began in earnest. Could McClory prove that his copyright in the "Thunderball" story had been infringed by Fleming's novel? Much was riding on the outcome, because, with the release of "Dr No" and "From Russia with Love", starring Sean Connery, Bond was now a cinematic success. There was a lot of money, and some hefty reputations, at stake.

One must not underestimate the personal enmity between Fleming and McClory, clearly shown for the first time in the letters. Neither liked the other during the time they worked together, and they clashed frequently. In one correspondence, Fleming admitted: "I don't particularly like Kevin personally, because I have never particularly liked Irish blarney." The letters also reveal that Fleming was plotting behind McClory's back to remove him from the Bond project. As for McClory, he labelled Fleming "cynical" and "a snob". One suspects that half of McClory's motive for his court battle was to put one over on the English Establishment, epitomised by Fleming.

The trial at the High Court became one of the media events of the year.

Journalists lined up outside every day as the leading players in the drama made their entrances and exits. McClory was accompanied by Jack Whittingham, whose evidence that Fleming had scarcely contributed to the scriptwriting process was damning indeed. But at what price had it been given? For Whittingham, too, was in poor health: after an earlier heart attack, he suffered constant angina. Against doctor's orders, he battled through the pain to attend every day of the case, loyally standing beside McClory. His reward was a dagger in his back.

Fleming, along with a friend, Ivar Bryce, would arrive each morning by taxi. There were also representatives of his publisher, Jonathan Cape, whose chairman can be shown for the first time to have been complicit in this deception. As early as January 1961, George Wren Howard was informed by letter of McClory's copyright claim to the "Thunderball" story -but, in his sworn affidavit, he professed to know nothing about it. In other words, one of Britain's most respected publishers lied under oath.

Fleming also defended his position that the novel was entirely his own work and that McClory had no right to it.

In the end, however, it was demonstrated that there were 200 pages in which things had been lifted from the screenplay and put in the book. Fleming's position looked hopeless; nevertheless, three days into the trial, he rejected one last bid to make a behind-closed-doors deal with McClory.

All the more strange, then, was what happened on the trial's ninth day. McClory had just taken the stand when the hearing was unexpectedly and dramatically adjourned: Fleming had decided to settle. But why?

As Fleming had already suffered one serious heart attack, Bryce was worried about the effect the trial was having on his friend. What has not previously been revealed is that Fleming experienced two heart attacks during the case itself. So, after days of wrestling with his conscience, Bryce persuaded his friend to settle, rather than watch him endure the days to come. Fleming's wife, Ann, was incensed, scrawling in her husband's copy of "Diamonds Are Forever", which had a dedication to Bryce, the words: "The man who betrayed Ian in the "Thunderball" case." Fleming, too, was later to bitterly denounce Bryce's actions. Yet, as Bryce was bankrolling the defence, the decision was his to make.

Another much more controversial - and previously never revealed - reason for the quick settlement is the revelation that McClory may have had in his possession an incriminating letter against his opponents. Bryce's decision to urge a settlement, so this theory goes, was to prevent the letter seeing daylight and causing public embarrassment both to Fleming and himself. Significantly, at the close of the trial, Fleming's QC handed a letter to the judge, saying: "I think it would be unwise for me to comment publicly on this letter." After reading it, the judge observed: "All I can say about this is that I am very surprised to see it." The contents and author of the letter were never made public.

More than likely, the reason for the settlement was the fact that McClory's case was irrefutable. Fleming had underestimated his foe, never believing he had either the nerve or the financial muscle to go the whole course. McClory's victory was considerable: Pounds 50,000 damages, costs paid and, most important, the film rights to "Thunderball". In 1965, unable to get the movie off the ground on his own, he joined forces with Broccoli and Saltzman to co-produce it, and it remains the most financially successful Bond film ever made.

He retained remake rights, resulting in 1983's "Never Say Never Again".

For years, McClory fought with the Bond producers to prove he had the right to his own 007 franchise. Most audacious of all were his claims that, because "Thunderball" was technically the first Bond screenplay, it influenced every subsequent 007 picture, meaning he had played a significant role in the creation of the cinematic Bond and thus deserved a share of the series's estimated $3 billion profits. Had this been substantiated in court, it would have turned the movie-making world of 007 upside down, even threatened its existence. The claims were thrown out of a Los Angeles court in 2001.

McClory's final battle was played out on November 20, 2006, with his disease-ravaged body. Despite earning millions from his profit share in "Thunderball", he died virtually penniless, his fortune squandered on court cases and dodgy funding of things happening in the north of Ireland. His cremation took the form of a Viking funeral. Whittingham was abandoned by McClory, despite promises that he would benefit from any eventual production of the "Thunderball" film. It was a particularly cruel betrayal considering the sacrifice the writer made during the trial to give his beneficial evidence. The two men hardly ever spoke to each other again. Whittingham died in 1972, his contribution to Bond forgotten.

As for Fleming, he left the High Court in 1963 a wounded and humiliated man. "I feel Bond would have done something to liven it up," he said about the case. "Like shooting the judge." Friends tried to cheer him up. In a letter, John Betjeman urged: "Write on, fight on." But on August 12, 1964, nine months after the plagiarism trial, he suffered a huge heart attack and died. He was just 56. He died at the height of his earning powers, with his books selling in undreamt of quantities. And, while he witnessed the popularity of the earliest 007 movies, he never lived to see his creation become a phenomenon, which was thanks to the unprecedented success, ironically, of the story that had caused him many of those health problems in the first place: "Thunderball".