McCanns v Bennet

kitti wrote:Why is it harrassment leafleting rothely and the surrounding area , After all, the Mccanns leafletted in pdl, didn't they and the residents their Aren't suing the them..

Good one kitti

nospinnaker wrote:Please someone clear up a misunderstanding for me.

People are referring to the Bennet vs McCanns 'libel trial'. I thought this one wasn't libel, more a 'breach of undertakings' matter, where the veracity or otherwise of Mr Bennet's beliefs and statements isn't an issue - it's whether or no he did what he promised not to do.

Anyone?

Its not complicated, the Tony is going for the defence of 'honest comment' and the judge is giving him the opportunity to prove the Mccann's lied... Which will be great as i have faith in justice here, however you are right and he will get fined or locked up for breach of undertakings afterwards which i imagine he will appeal on the base of the result from the liabel!

What happened to the goncalo trial btw? Are the mccanns fightig on two fronts now?

Loopdaloop wrote:

nospinnaker wrote:Please someone clear up a misunderstanding for me.

People are referring to the Bennet vs McCanns 'libel trial'. I thought this one wasn't libel, more a 'breach of undertakings' matter, where the veracity or otherwise of Mr Bennet's beliefs and statements isn't an issue - it's whether or no he did what he promised not to do.

Anyone?

Its not complicated, the Tony is going for the defence of 'honest comment' and the judge is giving him the opportunity to prove the Mccann's lied... Which will be great as i have faith in justice here, however you are right and he will get fined or locked up for breach of undertakings afterwards which i imagine he will appeal on the base of the result from the liabel!

What happened to the goncalo trial btw? Are the mccanns fightig on two fronts now?

Amarals trial got put back to February (?) or certainly 2013. His lawyer was ill, if I remember correctly. In my "ideal world" SY are in the background pulling the strings of the court, arranging for these hearings to be postponed so that they can act on the findings of their review. How embarrassing for the whole system if two people who had previously won a libel trial were then arrested wtihin weeks for that same crime. That is my ideal world though.

If I recall correctly, I think Amaral v Mccanns is January 23rd

Yep January 2013 it is!

Karen wrote:Yep January 2013 it is!

Thanks Karen, Happy New Year

Karen wrote:Yep January 2013 it is!

That's still no more than the latest (of many) scheduled dates - and there must be a possibility that it will never go ahead. Sadly.

mossman wrote:

Karen wrote:Yep January 2013 it is!

Thanks Karen, Happy New Year

Back at ya mossman here's hoping 2013 is the year Lord and Lady McCann face justice - I have a strong feeling they will. If expert witnesses are called to testify - Lord and Lady Mcann of Rothey Towers will be TOAST!

Why do I feel today that it is all too late and too long ago...

comperedna wrote:Why do I feel today that it is all too late and too long ago...

Can't help you there ............... it's never too late and never too long ago.

Things come to light for all sorts of reasons, so there's always hope.

Personally, I have sufficient faith in SY and the Portuguese Police & Judiciary that I maintain a high degree of confidence that the truth will emerge.

Hope so TEIN: today is a better day! Kerry Needham's little boy is being looked for seriously now, after all, and 21 years have passed.

marxman wrote:Mr Justice Tugendhat said: "Suppose it's established that the Claimants had lied about what happened?

I maybe wrong, but isn't 'lied' a very strong
and telling word for Justice Tugendhat to
use? I think he has the measure of what is
in store and I think he will be fair and just.
About time.

Apparently the judge DIDNT say that after all, it ws the McCanns barrister who said it.Bennett got it "wrong".

With acknowledgements to the JH site, this is Tony's posting about events due tomorrow and a correction at the end about one of the statements attributed to the judge.

http://jillhavern.forumotion.net/t5820-mccanns-v-bennett-judgment-tomorrow-24-october#129540

ProfessorPlum wrote:

marxman wrote:Mr Justice Tugendhat said: "Suppose it's established that the Claimants had lied about what happened?

I maybe wrong, but isn't 'lied' a very strong
and telling word for Justice Tugendhat to
use? I think he has the measure of what is
in store and I think he will be fair and just.
About time.

Apparently the judge DIDNT say that after all, it ws the McCanns barrister who said it.Bennett got it "wrong".

My my...thats there own barrister who has doubts about their clients truthfulness

I understand that the judge did make the first remark "What if they lied" but not the second one. Tony does say that only one of the quotes was wrongly attributed.

Not Born Yesterday wrote:I understand that the judge did make the first remark "What if they lied" but not the second one.

There will have to be full disclosure, witness statements, and expert evidence on the sniffer dogs...sounds expensive

ProfessorPlum wrote:

marxman wrote:Mr Justice Tugendhat said: "Suppose it's established that the Claimants had lied about what happened?

I maybe wrong, but isn't 'lied' a very strong
and telling word for Justice Tugendhat to
use? I think he has the measure of what is
in store and I think he will be fair and just.
About time.

Apparently the judge DIDNT say that after all, it ws the McCanns barrister who said it.Bennett got it "wrong".

What Tony Bennett got "wrong" was who was responsible for one of two comments. As far as I can see he has since attributed the one, "There will have to be full disclosure, witness statements, and expert evidence on the sniffer dogs…” to the McCanns' barrister at CR's request.
The other, ""Suppose it's established that the Claimants had lied about what happened?” remains as having been said by the judge.

Tony Bennett: These two quotes, which I attributed to Mr Justice Tugendhat, were:

1. "Suppose it's established that the Claimants had lied about what happened?” - and

2. “There will have to be full disclosure, witness statements, and expert evidence on the sniffer dogs…”

Both quotes were word-for-word correct.

However, in a letter to me today (23 October), Carter-Ruck have asked me to point out that it was not Mr Justice Tugendhat, but the McCanns’ own barrister, Jacob Dean, who said these words: “There will have to be full disclosure, witness statements, and expert evidence on the sniffer dogs…”

It was STILL said....

From the Mucky:

http://www.thisisleicestershire.co.uk/McCann-s-case-lawyer-heard-soon/story-17168119-detail/story.html


McCann's case against lawyer to be heard soon
Trusted article source icon
Wednesday, October 24, 2012


The parents of Madeleine McCann have won their latest court spat with a retired lawyer who they say has mounted a libel and harassment campaign against them.

Gerry and Kate McCann, of Rothley, are asking the High Court to jail 65-year-old Tony Bennett who they say has persisted in spreading false allegations against them, both on-line and in print.


Mr Bennett, of Harlow, Essex, in November 2009 promised to stop making wounding allegations that the couple were guilty, or suspected of, causing their daughter's death, disposing of her body and trying to cover up what they had done.

But Mr and Mrs McCann's lawyers claim he has since breached that formal undertaking more than 150 times and are seeking his imprisonment, or other punishment, for alleged contempt of court.

At the High Court today, Mr Justice Tugendhat underlined the vital importance of court orders and undertakings being obeyed and directed that the couple's case against Mr Bennett be heard "as soon as practicable".

Madeleine went missing in May 2007 from an apartment complex in Praia da Luz, Portugal, where her parents had been holidaying with friends.

Brunty's tweeting it:

martinbrunt ‏@skymartinbrunt

#McCann In High Court Madeleine's parents claim lawyer Tony Bennett has breached agreement to stop "death cover-up" allegations.

so bascically tony has no say anymore and the mcanns have got their way???

This is very long!



Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
- - - - - - - - - - - - - - - - - - - - -
Between :










(1) GERRY MCCANN (2) KATE MCCANN


Claimants



- and -





TONY BENNETT


Defendant







- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Jacob Dean (instructed by Carter Ruck) for the Claimants
Mr Bennett appeared in person

Hearing dates: 11 October 2012
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment




I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.




.............................

THE HONOURABLE MR JUSTICE TUGENDHAT



Mr Justice Tugendhat :

1. There are two applications before the court. On 14 August 2012 the Claimants issued an Application Notice for directions to be given for the hearing of the committal application which they had issued on 1st December 2011. By that application they allege that the Defendant has been guilty of contempt of court in that he is in breach of the undertakings given to the court in an order dated 25 November 2009. They ask that he be imprisoned or made subject to such penalty as the court thinks appropriate.

2. There is also before the court an Application Notice dated 20 February 2012 issued by the Defendant for an order varying the undertakings he gave to the court on 25 November.

3. The background against which these applications are made is as follows.

4. It is very well known, that the Claimants are the parents of Madeleine McCann. On 27 August 2009 solicitors for the Claimants wrote to the Defendant stating that he had been engaged in a course of conduct, largely under the guise of “The Madeleine Foundation” which, as they advised, constituted harassment pursuant to the Protection from Harassment Act 1997. They also stated that he was responsible for the publication of numerous grave and actionable libels. They asked him to desist, failing which proceedings would be issued in the High Court. The Defendant took advice from solicitors, and correspondence ensued. An agreement was reached pursuant to which the Defendant agreed to give undertakings to the court. For that purpose it was necessary that a claim form be issued.

5. The claim form was issued on 25 November 2009. In it the Claimants claimed damages for libel and an injunction to restrain the Defendant from further publishing the words complained of, or similar words defamatory of them. The publications complained of were set out in a Schedule to the claim form.

6. Also on 25 November 2009 the court made an order which included the following:

“All further proceedings in this action be stayed except for serving the claim form and this order on the Defendant and carrying out the terms of settlement, and for this purpose the parties are at liberty to apply”.

7. The order was headed with a penal notice (that is the words “If you the Defendant breach the undertakings given in this order you may be held to be in contempt of court and you may be imprisoned, fined or have your assets seized”). The undertakings given by the Defendant to the court were (a) to deliver up or destroy all versions of publications complained of, (b) to use his best endeavours to delete or otherwise prevent access to defamatory allegations about the Claimants published by him on specified websites, and (c) not to repeat the same or any similar allegations about the Claimants as those set out in Schedule A to the order. That Schedule to that order read:

“The Defendant undertakes not to repeat allegations that the Claimants are guilty of, or are to be suspected of, causing the death of their daughter Madeleine McCann; and/or of disposing of her body; and/or of lying about what had happened and/or of seeking to cover up what they had done.”

8. Shortly after the making of that order the Defendant continued to publish statements about Madeleine McCann. Solicitors for the Claimants started to write a series of letters to the Defendant stating that he was acting in breach of the undertakings he had given on 25 November 2009. On 1 December 2011, and after further correspondence, the Claimants issued the application notice to commit the Defendant for contempt of court. The schedule to that application notice listed 153 publications in 2010 and 2011 (up to 19 November 2011) which the Claimants contend each amount to a breach of the undertakings given by the Defendant to the court.

9. In the covering letter solicitors for the Claimants drew to the Defendant’s attention (and enclosed copies of) the decision of the Court of Appeal in Hammerton v. Hammerton [2007] EWCA Civ 248 setting out the availability, in principle, of legal aid for defendants facing applications to commit for contempt of court.

10. On 8 February 2012 the matter came before me for directions. Following an indication from the bench that the Claimants might select from the 153 allegations a more limited number which could conveniently be determined by the court, the Claimants agreed to do so, and I made directions for the service of a revised schedule. This did not involve any concession on the part of the Claimants that any of the allegations were not well founded. It was simply case management.

11. At that hearing the Defendant intimated a wish to be released from some of the undertakings he had given in November 2009. Accordingly, I directed that any application by him to that effect should be issued by 22 February 2012. I directed the matter be listed again after 17 April 2012, in order to give the Defendant an opportunity to find legal representation.

12. The Defendant attempted to obtain legal aid but he has not succeeded. His applications have been considered, but he has available to him funds which he has been told make him ineligible for legal aid. When the matter came before me for the second time, as it did on 3 May 2012, the Defendant’s inability to obtain legal aid had not yet become clear, and I adjourned the matter again for the question of his entitlement to be determined.

13. The solicitors for the Claimants also acted for Mr Smethurst in a libel action that he had brought against the Defendant, and which was settled on 7 December 2011. The terms of the settlement included that the Defendant would pay the sum of £2,500 damages to the Find Madeleine Fund (which he did), and that he would pay Mr Smethurst’s costs. However there has been a dispute as to the amount payable in respect of those costs, and the Defendant has not yet made any payment under that order for costs. He states that when his liability has been established, and he has made payment of what is due, it is likely that his financial circumstances will be such that he becomes eligible for legal aid. But he cannot give a date as to when that will be and he asks the court today to adjourn the committal proceedings for a third time, until he does become eligible for legal aid.

14. By letter dated 25 September 2012 the Defendant has made clear that he does not ask for the complete discharge of the undertakings he gave in November 2009. He wants the undertaking to be varied to enable him to publish to the public at large (the undertakings do not restrict his right to communicate with the police and other authorities)

“that there is credible evidence that (1) Madeleine McCann died in the McCanns’ holiday apartment, (2) the McCanns have covered this up, and (3) have on occasions lied about matters connected to Madeline’s reported disappearance ”.

15. The Defendant applied for a direction that his application for a variation for the undertaking be heard first, and that there follow a separate trial of the Claimants’ application to commit him for contempt. Alternatively, he asks that there be one trial at which his application is heard immediately before the committal application.

16. In lengthy documents which he has submitted to the court the Defendant makes clear that the basis upon which he applies for a variation of the undertakings is that he contends that there is evidence, (which he claims is fresh evidence at least in part), which would satisfy the court that the three allegations which he wants to be free to make to the public at large are true, or alternatively, that they are honest opinion. He submits that there has been a material change in the law of honest comment as laid down by the Supreme Court in the case of Spiller v. Joseph [2010] UKSC 53; [2011] 1 AC 852. In support of his application to vary the undertakings he wishes to argue these points, and to put forward evidence to prove what he says is the truth of what he has published, and of what he wishes to publish.

17. For the Claimants, Mr Dean submits that the proper course is that there be determined as soon as practical whether there have been any, and if so what, breaches by the Defendant of the undertakings which he gave to the court on 25 November 2009 (as listed in the shortened Schedule to the application to commit). Mr Dean submits that if, contrary to his case, there are no breaches, then the application to vary the undertakings may not arise for consideration. On the other hand, if the court finds that the Defendant has breached the undertakings, then the court may wish, in determining the appropriate penalty, to consider the application by the Defendant to vary the undertakings.

18. Mr Dean made clear on his clients’ behalf, that they deny that there is any truth in any of the allegations which the Defendant wishes to be free to make, and they do not accept that he would have any prospect of establishing a defence of honest comment, or any other defence to what they say are serious libels.

19. But they also take a preliminary point. They submit that he is not, in any event, entitled to seek the variation he does seek, at least on the basis that what he wants to say is true or honest comment. Mr Dean submits that the undertakings were given as part of a settlement agreement, and the court could only permit the Defendant to resile from that agreement on very limited bases. The Defendant would have to satisfy the court of one of the well established grounds for impugning any contract, such as misrepresentation or common mistake. The Defendant does not allege either of these grounds, although he does say he was subject to economic duress, because of what it would have cost to defend the libel action which the Claimants threatened to bring against him. Mr Dean submits that there is a public policy in promoting the settlement of legal proceedings by mutual agreement. Such agreements entered into by consent should not be set aside otherwise than in circumstances that in which a contract would be set aside. He cites Warren v. Random House Group [2009] EMLR 1; [2008] EWCA Civ 384 at paras 16-43.

20. When the matter came before me on an earlier occasion, and again on 11 October 2012, I expressed concern as to the procedural route which the Defendant has chosen to pursue his stated aim. It seemed to me that a variation of the undertaking that he gave in November 2009 might not, of itself, even if he were to achieve it, leave him free to make the allegations which he wishes to be able to continue to make.

21. The discharge of an injunction, or of an undertaking, is not of itself a licence or judgment of the court that a publication, which was previously restrained by such injunction or undertaking, may lawfully be published. There would need to be determined, in one way or another, at least two issues before it could be said that the Defendant is to be entitled to make public the allegations he wishes to make. The first issue is whether he can overcome the preliminary obstacle which Mr Dean submits is presented by the principle that settlements are not to be reopened in circumstances such as those existing in this case. If the Defendant succeeds on that first issue, the second issue would be whether the Claimants have a good cause of action, whether in libel, or harassment (if they wish to revive the harassment claim), such as would entitle them to have re-imposed an injunction in terms similar to the undertakings which the Defendant gave.

22. It seemed to me that, as a matter of procedure, the appropriate course to follow in order for all these issues to be raised in an orderly fashion, and properly determined, is to treat the Defendant’s application to vary the undertaking as an application to lift the stay of the proceedings which was ordered on 25 November 2009.

23. I express no view, one way or the other, as to whether the Defendant has any prospect of persuading the court to lift the stay. But if the court were minded to lift the stay, it would not follow that it would immediately permit a variation of the undertakings. One course that the court could follow would be to take it in stages, as the court might determine. If the court did lift the stay, the next step would be for the Claimants to serve Particulars of Claim.

24. There are detailed rules in the CPR governing the pleading and conduct of defamation actions, including provision for resolving issues in stages. These are important for the protection of both claimants and defendants. I see real dangers in the court attempting to resolve issues of truth and honest comment in the context of an application to vary an injunction, where the rules which govern pleadings and other interlocutory matters in defamation proceedings have no direct application. It would also be anomalous for issues of truth and honest opinion to be raised in an application to vary an undertaking at a time when the defamation proceedings in which those allegations would normally fall to be determined are ordered to be stayed. In effect the stay would be overridden, while formally remaining in place.

25. In my judgment it is in the interests of justice that this committal application, like all committal applications, be heard as soon as possible. It should not be adjourned pending the hearing of any application made or to be made by the Defendant.

26. It is a rule of law of great importance that undertakings to the court (like injunctions) must be obeyed so long as they are in force. If a party restrained by such an order wishes to contend that the order ought not to have been made, or ought not to remain in force, it is not open to that party to ignore the order and then, if faced with a committal application, to ask for that committal application to be adjourned pending the determination of an application to vary the undertaking or injunction. If that were permitted, the administration of justice would be seriously undermined: injunctions and undertakings would not be the effective remedies that they are required to be.

27. It is regrettable that this committal application has had to be adjourned twice already. But that was necessary in order to ensure that the Defendant’s rights to be given funding for his representation, in so far he has such rights, are not to be interfered with. The possibility that his financial circumstances may alter, and if they do, at a date unknown, is not a reason why the hearing of the application to commit him for contempt of court should be delayed any further.

28. On the other hand, there is less urgency in the Defendant’s application, although if it is to be made it should be made promptly. I would see no objection to any such an application being deferred until after the hearing of the committal application, perhaps to the point at which the court has decided whether there has been any, and if so what, breach of the undertaking. It would be a matter for the court hearing the committal application, if it found that the Defendant had committed a breach of the undertaking, to decide at that point whether to proceed immediately to determine the penalty, or whether to adjourn, and if so, whether or not to hear the Defendant’s application before determining the penalty.

29. For these reasons there will be an order, the terms of which I invite the parties to agree. The substance of the order will be that the Claimants’ committal application be listed as soon as is practical, and that the Defendant’s application be adjourned to be considered by the judge hearing the committal application as that judge may decide. The Defendant’s application will be treated as an application to lift the stay of the action, and, if the stay is lifted, to vary the undertakings pending trial or other disposal of the action.



ENDS

SUMMARY: From Tony Bennett
I was not present. Mr Justice Tugendhat read out his judgment at 10.00 and it was sent to me by e-mail by his clerk at 10.10. Carter-Ruck were present. So I don't know if anyone else was present.

I will do a brief summary.

1. I applied for an adjournment on the grounds that it was necessary for me to be represented. I informed the Court that if I had to pay even half of Smethurst's claimed costs against me of £52,713.26, my savings would then fall below £8,000 and I would be entitled to Civil Legal Aid. As I could give no date for this, my application was REFUSED [see Paras 13, 25 and 27].

2. The application to commit me to prison will be heard as soon as practicable [Paras 27 and 29].

3. The application to commit me to prison will examine:

(a) Whether I have breached any of the 16 undeertakings I gave, and

(b) If so, which ones, and on what occasions.

If I am held to have breached any of the undertakings, the Court may or may not impose a penalty on me at that stage, or may defer any penalty until after all the various proceedings have been concluded [Para 28].

4. The Court takes very seriously the issue of a Defendant breaching any undertakings given to the Court [Para 26].

5. The application I made to the Court on 22 February to vary three of the 16 undertakings I agreed to will be treated (instead) as a formal application to 'lift the stay' (see below for what this means) on the original libel claim by the McCanns.

6. There will be a separate trial, after the committal trial, to see if I can persuade the court to 'lift the stay'. To do that (as I understand it at present), I will have to do one of two things:

(a) persaude the court that the original undertakings were not, in effect, signed voluntarily, or

(b) persuade the court that since I signed the undertakings, circumstances have changed so that it would no longer be appropriate for some (or all) of the undertakings to be kept in place.

With reference to point 6(a) above, the key issues will be (i)what alternatives are available to a person who has to defend a libel claim brought by people who can afford the best legal help in the land and are able to bring or threaten libel proceedings at will, against an individual with a net income after tax of less than £10,000 a year and with very limited savings and (ii) the government's failure to make arrangements to provide legal representation for a person confronted with such a gross imbalance of legal resources - contrary to strict rulings by the European Court of Human Rights in the Steel & Morris v UK and Alkan v Turkey cases.

7. If I do persuade the Court to 'lift the stay', the McCanns will have to submit Particulars of Claim, setting out in precise terms what published words of mine they say are defamatory of them. I will then be able to find a detailed Response in which I will be able to set out why all of my publications on the case are simply 'honest comment' based on avalable facts (cadaver dogs, contradications etc.) and a reasonable interpretation of those facts.

8. If I do NOT persuade the Court to 'lift the stay', all of the 16 undertakings I signed will stay in place indefinitely, unless and until there is reasonable proof that the undertakings were extracted from me under false pretences. In that case, the Court will decide (if they have not already done so), what penalty to impose on me for any breaches of my undertakings (which could include prison, a suspended prison term, a fine, or seizure of assets, or a combination of any or all of these).

Thanks for posting this Karen.

chrissie wrote:From the Mucky:

http://www.thisisleicestershire.co.uk/McCann-s-case-lawyer-heard-soon/story-17168119-detail/story.html


McCann's case against lawyer to be heard soon
Trusted article source icon
Wednesday, October 24, 2012


The parents of Madeleine McCann have won their latest court spat with a retired lawyer who they say has mounted a libel and harassment campaign against them.

Gerry and Kate McCann, of Rothley, are asking the High Court to jail 65-year-old Tony Bennett who they say has persisted in spreading false allegations against them, both on-line and in print.


Mr Bennett, of Harlow, Essex, in November 2009 promised to stop making wounding allegations that the couple were guilty, or suspected of, causing their daughter's death, disposing of her body and trying to cover up what they had done.

But Mr and Mrs McCann's lawyers claim he has since breached that formal undertaking more than 150 times and are seeking his imprisonment, or other punishment, for alleged contempt of court.

At the High Court today, Mr Justice Tugendhat underlined the vital importance of court orders and undertakings being obeyed and directed that the couple's case against Mr Bennett be heard "as soon as practicable".

Madeleine went missing in May 2007 from an apartment complex in Praia da Luz, Portugal, where her parents had been holidaying with friends.

What have the McCanns won exactly??? on FB they are saying its looking good for Tony!!!!

The McCanns are fucked now look what their solicitor said

18. Mr Dean made clear on his clients’ behalf, that they deny that there is any truth in any of the allegations which the Defendant wishes to be free to make, and they do not accept that he would have any prospect of establishing a defence of honest comment, or any other defence to what they say are serious libels.

They deny there is any truth in any of the allegations!
Part three of what tony said was that they had lied about aspects of their daughters disappearance !
Even without proving part 1, death part 2 cover up it will be a doodle to prove they've lied as there is so much by them on record which is inconsistent or varies from other witnesses that if tony identifies just one it will show that the McCanns are lying about there not being any truth in any allegations! In which case they lose tony wins!