Gerry Mccann and Another v Tony Bennett
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 21 February 2013 |
| Neutral Citation | [2013] EWHC 283 (QB) |
| Docket Number | Case No: ATC/11/0841 |
| Court | Queen's Bench Division |
| Date | 21 February 2013 |
[2013] EWHC 283 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: ATC/11/0841
Ms Adrienne Page QC and Mr Jacob Dean (instructed by Carter-Ruck) for the claimants
The Defendant appeared in person
Hearing dates: 5 and 6 Febraury 2013
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.
On 1 st December 2011 the Claimants issued an application notice. 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 ("the Undertakings"). They ask that he be made subject to such penalty as the court thinks appropriate. The penalty for contempt of court may include committal to prison: it is for the court to decide the penalty, if any. I indicated at the hearing that I would first consider (and reserve) my judgment on the question whether the Defendant has committed a breach of his Undertakings, and, if I found that he had, I would consider the question of any penalty after I had handed down my reserved judgment.
The Claimants are the parents of Madeleine, who disappeared at the age of 3 years when she was on holiday with her family in Portugal in May 2007. The Claimants state the little girl was abducted, that they believe and hope that she is still alive, and that she may one day be found and re-united with her family.
The Defendant is a former social worker and solicitor, now in retirement, who has written at very great length about the affair. He claims to have written as a member of the public interested in the welfare of children. What he has written has been throughout critical of the Claimants and of what the Claimants have said about the disappearance of their daughter.
On 27 August 2009 Carter-Ruck, 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. On 3 October he wrote a fourteen page letter. It included that he had been advised that:
"there was a real and live risk, however low, that [the Claimants] might win a libel action and that therefore we could each literally face financial ruin".
In that letter he went on to offer undertakings and assurances to the Claimants substantially in the terms that he subsequently gave to the Court. He also wrote that he had made the following or similar statements on all places where he posted regularly:
"Just to make it absolutely plain for the written record, I am no longer accusing the McCanns of knowing that their daughter Madeleine is dead and that their [sic] parents have knowingly covered up this fact".
In a 9 page letter dated 30 October 2009 the Defendant offered further undertakings and assurances in terms even more emphatic ("I undertake from hereon not to publish any allegation that may suggest that there is even one scintilla of evidence that Madeleine McCann died in her parents' holiday apartment") and set out steps he had taken to comply with the undertakings given in his letter of 3 October.
Nevertheless, on 10 November 2009 Carter-Ruck wrote enclosing the screenshot of a website and complaining that the Defendant had, in spite of his undertakings and assurances, been directing people to other websites which continued to publish a leaflet the Claimants had complained of: "What really happened to Madeleine McCann? 10 key reasons which suggest that she was not abducted ("the 10 reasons leaflet"). The screenshot was of the Madeleine Foundation website ("the MF website"). It included a statement that the "10 reasons leaflet" was available to download from a number of websites to which the links were given.
Carter-Ruck required the Defendant to give his undertakings to the Court, and to pay as a contribution to the Claimant's costs the sum of £440, which they explained was the court fee the Claimants would have to pay for the undertakings to be given to the court.
By e-mail dated 12 November 2009 the Defendant agreed to this requirement. 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.
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".
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, which were then given by the Defendant to the court, were set out in the Order. They were:
"A. to deliver up all hard copies of and to destroy any electronic version of the following publications, or any similar publications in the possession or control of the Defendant: (1) the book entitled "What really happened to Madeleine McCann? 60 key reasons which suggest that she was not abducted" ["the 60 reasons booklet"] first published on or around 7 December 2008; (2) the leaflet entitled "What really happened to Madeleine McCann? 10 key reasons which suggest that she was not abducted"
B. to use his best endeavours to delete or otherwise prevent access to any and all defamatory allegations about the Claimants published by him on the following websites: [and these are identified]
C. not to repeat the same or any similar allegations about the Claimants as those set out in Schedule A hereto, whether by his servants or agents or otherwise howsoever….
Schedule A: 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."
The committal application came before the court for directions on 8 February 2012, on 17 April 2012 and 11 October 2012. On 24 October I handed down a judgment ("my October judgment") Neutral Citation Number: [2012] EWHC 2876 (QB). In that judgment I explained the procedural history in more detail, and why the case had been adjourned in order for the Defendant to obtain public funding for his defence, if he could. He has not been able to obtain public funding because his means are above the level for eligibility.
The Defendant does not dispute that, as Sir John Donaldson MR said in Hussain v Hussain [1986] Fam 134, 139:
"an undertaking given to the court is as solemn and binding and effective as an order of the court…"
But the Defendant has at this hearing submitted, as he did in October 2012, that his Undertakings were not binding because they were given under duress, that is the fear of financial ruin which he expressed in his letter of 3 October 2009. However, as I explained to him in October, and repeated in para 26 of my judgment, that cannot be an answer to this application to commit him for contempt of court. The law has long been as was recently stated by the Court of Appeal in Ketley v Brent [2012] EWCA Civ 324 at para 20:
"… unless and until the orders about which [the defendant] complains are actually set aside he is required to obey them. The position was made crystal clear by Lord Diplock in Isaacs v Robertson [1985] AC 97. He approved the following passage from the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P 285:
"It is the plain and unqualified obligation of every person against, or in respect of whom an order is made, by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void —— whether it was regular or irregular. That they should come to the court and not take it upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.'… Such being the nature of this obligation, two consequences will, in general, flow from its breach. The first is that anyone who disobeys an order of the court…is in contempt and may be punished by committal or attachment or otherwise."
THE ISSUES ON THIS APPLICATION
In an application for an order that a defendant be committed to prison for contempt of court in a case such as the present the claimant must prove the following: (1) that the defendant had...
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Table of Cases
...McCann & Anor v Bennett, [2012] EWHC 2876 (QB) ............................................................63 McCann & Anor v Bennett, [2013] EWHC 283 (QB) .........................................................63, 64 McCann & Anor v Bennett, [2013] EWHC 332 (QB) ...............................