Gerry McCann and Another v Tony Bennett
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 24 October 2012 |
| Neutral Citation | [2012] EWHC 2876 (QB) |
| Docket Number | Case No: HQ09D05196 |
| Court | Queen's Bench Division |
| Date | 24 October 2012 |
[2012] EWHC 2876 (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: HQ09D05196
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 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 1 st 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.
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.
The background against which these applications are made is as follows.
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.
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.
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".
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."
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.
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.
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.
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.
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.
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...
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