McCANNS v BENNETT Hearing before Mr Justice Tugendhat,

today, 11 October 2012

Tony Bennett on Thu Oct 11, 2012 7:48 pm

McCANNS v BENNETT

Queens Bench Division

High Court

Case No. HQ09 D05196

Hearing before Mr Justice Tugendhat

11 October 2012

10.30am

Representing Carter-Ruck:

Jacob Dean (barrister)

Isabel Martorell (formerly Hudson) (Partner, Carter-Ruck

Two junior members of Carter-Ruck staff.

This morning saw another interlocutory hearing in the McCanns’ attempt to have me imprisoned for contempt of court. I’m sorry, this was all rather complicated, but I’ll try to explain today’s outcome as concisely as I can.

The hearing today resulted from an application by the McCanns in August to move the case forward to a final hearing. It had been mutually agreed by the parties to adjourn the hearing listed for 9 & 10 May, to give me a realistic opportunity to see if I could be legally represented on the committal-to-prison hearing. To be fair to the McCanns and their advisers, they gave me every opportunity to have time to explore this possibility. It turned out that with savings of over £8,000, my current net income was just above the limit at which I qualified for Legal Aid.

In advance of the hearing, I applied for a ‘split’ trial. I asked for my application to vary the terms of my undertakings to be heard first, following which the contempt trial should take place. This was so that the Court could first hear the evidence I was seeking to bring in support of my application to vary, before they determined the contempt of court application.

I also asked for a further adjournment to allow me an opportunity to apply for Legal Aid, on the grounds that if Edward Smethurst succeeded in even only being awarded one-half of the costs he is claiming against me (£52,713.26) in separate legal proceedings, my savings would then be below the magic £8,000 limit and, on my current income, I would then be able to claim Legal Aid.

By contrast, the McCanns came up with some novel arguments at the last minute. Two days before the hearing, a Polish motorbike rider from ‘Courier Express’ brought up to me a new bundle with an additional 350 pages of documents. Not content with that, the following day, a Russian motorbike rider from a different courier firm arrived with another bundle, this time containing a whole new set of legal arguments, and a court judgment in another libel case, Frank Warren v The Random House Group Limited. As I didn’t receive this until 7pm, it was too late to study it and take it all in.

Apparently Ricky Hatton had, in a book, accused the boxing promoter (Frank Warren) of dishonestly conning a boxer, Vince Phillips, into accepting a pitiful fee for a fight. Warren, as the promoter of the fight, sued.

Anyway, the McCanns’ barrister, Jacob Dean, tried to argue that my giving of an undertaking to the McCanns in November 2009 was just like making a voluntary contract and that any breaches of the undertaking by me should be treated just like an ordinary breach of contract. He tried to suggest that there was no effective legal argument in defence of breaching an undertaking. He wanted an immediate committal hearing. If that hearing held that I had committed a breach, he would then go on to make a new application, at a separate hearing, that my application to vary three of the 16 undertakings I gave would (on the basis of the evidence I had so far provided) stand no chance of success.

Mr Justice Tugendhat throughout the hearing thought that a full libel trial was the appropriate forum for resolving the issues as between the McCanns and myself. He asked Jacob Dean: “Why are these proceedings the appropriate forum?” He added that if these issues were to be addressed in the proper forum, there would have to be “Full disclosure, witness statements, and expert evidence on the sniffer dogs…” He added that he had “never come across a case quite like this, where an application to vary undertakings could be dealt with without it becoming an issue in a libel action…Mr Bennett’s application does require the re-opening of the libel proceedings…these current proceedings do not have the necessary structure to deal with the issues…this can only be resolved in a libel action. He also noted that although the McCanns began their correspondence in August 2009 alleging harassment, they had never pursued that allegation.

At one point in the proceedings, and I quote, Mr Justice Tugendhat said: "Suppose it's established that the Claimants had lied about what happened?

Mr Justice Tugendhat made certain rulings at the conclusion of the case, and said he would set out his reasons in full in due course (these by the way have to be set out in draft form and sent to each of the parties, to make sure that the two parties agree that the judgment accurately expresses the judge’s decision. It is merely an opportunity to correct any typos, missing commas, wrong names or dates, things like that). Once any corrections have been sent to the judge, he then issues his formal ruling. At that stage, he will make any formal orders for the further conduct of proceedings, to be drafted and agreed between the parties if possible. When his final written ruling is handed down, I’ll scan it and upload it here

His main decisions were:

1. My application for a further adjournment was rejected.

2. The McCanns’ application to commit me to prison would be heard as soon as practicable, but under the very unusual circumstances of this case, if the Court were to find that I had breached any of my undertakings, any penalty against me would be determined only after a full libel trial.

3. That my application to vary three of the undertakings I gave in November 2009 should be treated as, in effect, an application to ‘lift the stay’ on the libel proceedings. To explain: On 25 November 2009, the McCanns simultaneously issued a libel claim and at the same time accepted my offer of giving various undertakings. That meant that the libel claim was effectively adjourned (= ‘stayed’), so long as I did not then break any of my undertakings. ‘Lifting the stay’ means that the McCanns’ libel claim now becomes ‘live again’.

That means the McCanns will in due course need to serve on me what is called ‘Particulars of Claim’, setting out in minute detail what libels against them I am said to have committed.

I will then be able to enter a defence. Possible defences open to a libel defendant include: ‘justification’, ‘public interest’, ‘fair comment’ or (following the Supreme Court case of Spiller v Joseph [2010]), the defence of ‘honest comment’.

Once the libel trial is concluded, either I will be found not to have committed libel, or I will be found to have committed libel. In the latter case, I will then face potential damages and a very large bill of costs.

Following that, the committal-to-prison Court will meet and (assuming that I have been found to have breached the undertaking) will decide what penalty I should suffer. It is certainly possible that even if I were to win the libel trial, the Court could nevertheless still punish me for having (if I have) broken my undertakings. The Court takes any breach of undertaking very seriously, especially as this was a so-called ‘penal’ undertaking, which has more serious consequences.

What has happened today, in effect, is that the core of this whole case has now been taken substantially out of the hands of a High Court judge, and put in the hands of an English jury of twelve persons.

The bad news for me is that there is simply no Legal Aid in any circumstances for those seeking to defend a libel claim. The costs of hiring a barrister to represent me during a libel trial, possibly lasting several days, will be utterly beyond me. Therefore I shall be on my own. It will be very difficult to conduct my own defence.

Last night, a true supporter wrote some words to encourage me. I told him that Mr Justice Tugendhat would again be conducting today’s hearing. His reaction was, and I quote:

“It's before Mr Justice Tugendhat again? That is music to my ears. I have faith that this gentleman will bring a sense of calmness, proportion, realism and basic common sense back into focus!”

I am not going to disagree.

Finally, once again, many thanks to all true supporters who may read this report of today’s proceedings. I’m sorry I didn’t let anyone know in advance about this hearing. I felt embarrassed that people came at their own expense and time to support me last time. I’d prefer you to save your coppers to be with me on Day One of the McCanns v Bennett full libel trial. Please don’t let anyone think for one moment that I am relishing the prospect of having to defend myself in a full-blown libel trial against the might of Team McCann and Carter-Ruck.

Because I am not.  

TB 11/10/12