Neutral Citation Number: [2013]
EWHC 283 (QB)
Case No:
ATC/11/0841
IN THE
HIGH COURT OF JUSTICE
QUEEN'S BENCH
DIVISION
Royal
Courts of Justice
Strand,
London, WC2A 2LL
Date:
21/02/2013
Before
:
THE HONOURABLE MR JUSTICE
TUGENDHAT
- - - - - - - -
- - - - - - - - - - - - -
Between :
|
(1)
GERRY MCCANN (2) KATE MCCANN |
Claimant |
|
-
and - |
|
|
TONY
BENNETT |
Defendant |
- - - - - - - -
- - - - - - - - - - - - -
- - - - - - - -
- - - - - - - - - - - - -
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 February 2013
- - - - - - - -
- - - - - - - - - - - - -
Judgment
Mr Justice Tugendhat :
1.
On 1st 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.
2.
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.
3.
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.
4.
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.
5.
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”.
6.
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”.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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".
12.
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."
13.
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.
14.
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…”
15.
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
16.
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 proper notice of the undertakings which
the defendant is alleged to have breached, and that the
order was in the proper form; (2) that the defendant was
responsible for one or more of the publications alleged
to be a breach of the undertakings; and (3) that the
publication(s) for which the defendant was responsible
make(s) one or more of the allegations which the
defendant undertook not to make.
17.
On all of these issues the
burden is on the Claimants to satisfy the court to the
criminal standard of proof that the Defendant is in
contempt of court. The court must be satisfied so that
it is sure before it can find that a person is in
contempt of court.
18.
The events that led up to
the Defendant giving the Undertakings are recounted in
the first affidavit of Ms. Martorell (that is, Ms
Hudson, as she was at the time). The Undertakings were
given as set out above. When the notice was originally
issued the claimants relied on 153 publications as acts
constituting breaches of the undertakings. They are
listed in the schedule to the Application Notice (as
required by O.52 PD2.6(2), which is the procedural
provision in force at the relevant time), and a copy of
each of the publications is exhibited to Ms Martorell’s
first affidavit. The Claimants also identified ten which
Ms Martorell described as the most serious.
19.
Following an invitation from
the court given at the first directions hearing held on
8 February 2012, the Claimants’ advisers made a
selection of 26 publications for consideration at this
hearing. This involved no concession on the part of the
Claimants that any of the other publications was not in
breach by the Defendant of his undertakings.
20.
Where a person is alleged to
have committed a large number of criminal offences, it
is common for those drafting an indictment to include
only a proportionate number. One reason for this is that
if the defendant is convicted the court will arrive at
the sentence after taking into account all of the
defendant’s offences. Above a certain number, each
additional conviction cannot lead to an increase in the
sentence. It is therefore often a disproportionate
expenditure of time and resources to seek a conviction
in respect of each and every instance on which it is
alleged that a defendant has offended. The same
principle applies to contempt of court, for which the
maximum sentence of imprisonment is one of two years.
21.
Ms. Page explains that the
publications were selected in the following ways: (1)
they included the original “top 10” relied on in Ms.
Martorell’s first affidavit; (2) a small number of hard
copy publications, the distribution of which has been a
matter of particular concern to the Claimants; and (3) a
sample of the remainder which is intended to be
representative both in terms of the type of publication
(that is, website, Twitter message etc...) and in terms
of the meaning (that is the nature of the allegation
made and the clarity with which it is made).
22.
These selected 26
publications were summarised in a table (the Table”).
The Table identifies the publication complained of and
the particular passage in the publication which is
complained of, or, as the case may be, that it is the
whole publication that is complained of. It also sets
out the aspect of the undertakings which the claimants
say the publication breached.
23.
At the start of the hearing,
I gave to the Defendant a reminder that he had the right
not to give evidence, if he so chose, alternatively to
give evidence and submit to cross-examination. At that
point the Defendant expressly stated that he did not
dispute at this hearing, and that he had never disputed,
responsibility for the publications. Consistently with
that stance, when he came to cross-examine Mr G*****
and Ms. Martorell, he did not challenge any of their
evidence as to his responsibility for the publications.
24.
At the start of the hearing
Ms Page stated that the Claimants had made a further
selection of 13 out of the 26 publications in the Table,
and that for the purposes of the hearing she would
confine her case to those 13. She made clear, as the
Claimants had made clear in February 2012, that in
making these selections from the original 153
publications complained of the Claimants were making no
concessions at all. They maintain that all of them are
breaches of the undertakings. But no useful purpose
would be served in seeking to prove them all.
25.
The documents before the
court are very voluminous: 12 lever arch files. In
addition to the very large number of publications
alleged to constitute breaches of the Defendant’s
Undertaking, there has also been extensive
correspondence between the solicitors for the Claimants
and the Defendant in person.
CHRONOLOGY
26.
The following is a
chronological summary of the main events relevant to
this application. The bracketed numbers in the headings
identify the 13 matters on which Ms Page relies in this
application to commit the Defendant for contempt of
court (while not resiling from the Claimant’s contention
that there have been very many more breaches). The
numbers refer to the numbering in the Table.
(1) Breach #1: The sale of a
book
27.
Within weeks of the order
dated 25 November 2009, the correspondence started on
the topic of alleged breaches. On 5 February 2010 the
Defendant wrote that the sum and costs which he was
ordered to pay under that order, namely £440, was too
high (he had not been asked to pay any damages). The
solicitors replied the same day explaining the figures
and going on to state
“In the meantime,
and of far greater concern, is the fact that we have
received evidence to suggest that you are both
continuing to promote the publication of the “60
reasons” booklet (by directing enquiries to websites
where it may be downloaded or purchased) as well as that
you have directly sold at least one copy of the book.
Both these actions constitute not only a breach of the
undertakings you gave (which as you are aware is
actionable as a contempt of court), but also a further
publication by you of the libels complained of … [there
are then references to the home page of the website of
the “Madeleine Foundation”] the purpose of this letter
is to “require you immediately to remove the above
mentioned passage on your homepage and article, and to
provide your response to this letter as a matter of
urgency. In the meantime we must reserve all our
clients’ rights to bring proceedings for committal for
contempt of court and/or libel”.
28.
On 8 February the Defendant
replied. His email included the following:
“… so far as I am
aware on the new Madeleine Foundation website there is
no promotion of the “60 reasons” book whatsoever. We
have made clear statements that it is no longer
available for sale.
I have myself on a
few occasions directed people to websites where “60
reasons” is available to read on the internet. I
emphasise once again that I have not in any way helped
or encouraged these websites to reproduce the booklets…
I am further willing to endeavour to contact any website
that may have reproduced “60 reasons” (in all cases
without my consent I may add) and ask them to remove it
from their site forthwith.
You refer
in the same paragraph to “at least one copy of the
booklet” being sold. On 13 January this year, a
Mr. M*** G*****,
a freelance photo journalist who is in contact with you,
attempted to buy a booklet using the false name of
Michael Sangerte, and purporting to live in “Reading,
Berkshire”. He claimed to be willing to pay “a good
price” for it. He followed up this deception by
insisting that he required a hard copy of it as he
believed it would become “an important historical
document”.
At this stage I
suspected that he was not a genuine customer and
accordingly a booklet was sold to him. Believing that
it would yield me useful information, a booklet was
indeed sent to him….”
29.
Quoted in this email from
the Defendant are emails he had sent to operators of
websites requiring them to cease publishing, selling and
distributing the 60 reasons booklet.
30.
What the Defendant wrote in
the letter about Mr. G***** is accepted by the
Claimants and Mr G***** himself to be correct, except
for one important point. As the Defendant now expressly
accepts, Mr G***** was not in contact with the
Claimants. He wanted the book for the purposes of
journalism and he was in touch with a newspaper
publisher.
31.
The 60 reasons booklet is
about 60 pages long. On the cover it states that it is
written by the Defendant. The gist of the book is given
on the back page as follows:
“About The
Madeleine Foundation
The Madeleine
Foundation was set up in January 2008 to try to ensure
that the right lessons were learnt from Madeleine
McCann’s disappearance. Madeleine – whatever happened
to her – was a victim of child neglect, being left
exposed to all manner of risks while her parents were
wining and dining out of sight in a bar over 100 yards
away. ….
About this booklet
This booklet has
one simple aim: to enable the British public to learn
something of the many reasons which suggest that
Madeleine was not abducted, but, rather, that something
else happened to her… It is necessary because the
British press, perhaps cowered by the McCann’s having
successfully sued some of them for over half a million
pounds, has failed to explain and analyse the powerful
evidence against the McCann’s which has emerged in the
past 12 months. ….
About the author –
Tony Bennett
Tony, 61,
qualified as a social worker in 1975, and later as a
solicitor in 1995. He has a track record of successful
campaigning…. now Tony has turned his research skills to
exposing the lack of evidence that Madeleine was
abducted and, by contrast, the mountain of evidence that
points in a different direction. ….”
32.
In addition to the title
(“What really happened to Madeleine McCann? – 60 reasons
which suggests she was not abducted”) the Claimants rely
on the whole book, but in particular to the passages in
the Introduction:
“The Madeleine
Foundation’s view on what really happened to Madeleine
is precisely the same as the view held by the senior
Portuguese detective, Mr Goncalo Amaral… the facts point
not to Madeleine having been abducted but in an entirely
different direction… Was she really abducted? Or did she
die as a result of an accident, perhaps of
over-sedation, or from another crime?”
33.
On 9 February the Defendant
wrote again to Carter-Ruck. He said he had made changes
to the material on the website they complained of to
comply with their requirements.
(2) Breach #4: 4 July 2010
34.
On 4 July 2010 the Defendant
posted on the MF website the text of a letter which he
said he had sent to the Home Secretary. This was the
first of the original top ten breaches complained of. No
complaint is made by the Claimants of the letter insofar
as it was sent to the Home Secretary. The complaint
relates to the publication to the world at large. The
letter refers to an article in the issue of the
Sunday Express of the same date reporting that the
Home Secretary hoped to meet the Claimants. The letter
includes the following:
“You may wish to
recall that the McCann parents were and remain suspects
in the reported disappearance of their daughter. …
could you please let me know whether any proposed
re-investigation will actively and diligently pursue the
line of enquiry mentioned in the interim and final
report of the Portuguese Police, to the effect that
Madeleine may have died in the McCanns’ apartment and
her body may have been hidden or disposed of, either by
or with the certain knowledge of the parents? …the
McCanns’ were two of three prime suspects in this case
and …there is no evidence whatsoever to suggest that
Madeleine McCann was abducted, but yet there is much
evidence to the contrary …we are constantly being fed
the abduction theory when we know too well that there is
no evidence of the alleged abduction, a theory that was
proven as virtually impossible by the Portuguese
Police. Contrary to this, we have the thesis of the
Portuguese Police which points to the death of Madeleine
in her parent’s apartment, a theory which is supported
by much evidence which can be found in the original
police files, now made public and available on the
internet. Please confirm that any new enquiry will
focus on all possibilities including abduction and also
the theory as reported in the interim and final
statements of the Portuguese Police, which states that
Madeleine may have died in the McCann’s apartment.”
48 questions
35.
On 13 July 2010 the
Defendant posted on YouTube a video recording which he
had created and which featured himself. It related to
questions which Dr Kate McCann had been asked by the
Portuguese Police and which she had declined to answer.
On the same day the Defendant posted a link to this
recording on a website under the name Jill Havern (“the
JH website”). These two actions are items 11 and 26 of
the list of 26 alleged breaches referred to in the table
prepared after February 2012. They were items 46 and
148 in the original list of 153.
36.
On 15 July 2010 Carter-Ruck
wrote to the Defendant reminding him of his Undertakings
and complaining that he had on a number of occasions
breached them. The letter refers to the posting of 4
July 2010 and, amongst other matters, to the posting of
the video recording on YouTube. They required him to
remove the video from YouTube and to cease other
publications they complained of. They warned him that
the Claimants had a right to bring proceedings for
contempt of court and urged him to seek legal advice.
37.
On 19 July the Defendant
replied to Carter-Ruck. As to the video, he claimed to
be acting on legal advice, but said that he had taken it
down from YouTube. His reply refers to libel, but not
to contempt of court, at least not in terms. For
example he said, as he has said in relation to a number
of the Claimants’ complaints that it did not seem to him
that the publication was “capable of being construed as
libellous”.
38.
On 21 July 2010 the
Defendant wrote again to Carter-Ruck. It is a 5 page
letter. He wrote:
“I am happy to
repeat my undertakings given previously to the court. In
particular, in the light of your e-mail, I will refrain
from suggesting that Mr Amaral’s suspicions about your
client may be correct, whilst at the same time we are
advised that to continue reasonable discussion of the
information he has provided us is not libellous…
… the legal advice
I received is that neither myself nor any one else can
be prohibited by a libel court or otherwise from
reporting on and making reasonable comment on
information in the public domain, and especially so
given this information comes specifically from police
sources…”.
(3) Breach #12: 24 July 2010
39.
On 24 July 2010 the
defendant posted messages on the JH website. He made a
long and detailed posting. It includes the following:
“I believe only
two basic scenarios are worth spending much time on:
Maddie was taken by a child predator. Maddie died in the
apartment and the parents are covering up a crime…
Summary
So, to recap,
Madeleine McCann is 99% likely to be dead. My top
suspects at this point, based on behaviour and what
information can be validated, are the McCanns.”
40.
On 3 August 2010 Carter-Ruck
wrote to the defendant. The letter includes:
“While you claim
to be complying with the requests contained in our
letter of 15 July 2010, including that you do not
continue to publish the “48 questions” video you made…
you have recently been republishing articles/postings by
others, many of which clearly allege that our clients
are guilty of, or are to be suspected of, causing the
death of their daughter… we must require your immediate
response to this continuing clear breach of the
undertakings which you gave to the court, which appears
to demonstrate how disingenuous your purported
assurances are”.
41.
The Defendant replied by
email and then by a 25 page letter dated 16 August
2010. Again he concentrates on the complaint of libel
rather than contempt of court. The letter includes a
theme which he repeated at the hearing. His point is
that it would be ludicrous if others were able to report
what he could not. He claimed not to know what
Carter-Ruck referred to as the recent articles/postings,
and he stated that he would remove any posting on the
website or elsewhere if the Claimants would name the
articles or postings in question and explain in clear
terms how they say they are libellous.
42.
The Defendant wrote two
letters to Carter-Ruck dated 20 August 2010. They cover
10 pages. He raises questions about the disappearance
of Madeleine which he claims the Claimants ought to
answer. He gave assurances that he will not publish
links to the 60 reasons booklet and claimed to have
removed those documents from “our website”.
43.
The Defendant wrote a
further series of letters one dated 9 September and
another 16 September 2010. Within a letter dated 1
October 2010 his tone changed. Referring to material
which he had previously agreed to cease publishing in
response to Carter-Ruck’s letter of 15 July, he wrote:
“I write to inform
you that we have now reconsidered our position and we
now see no reason to cease distributing ‘your questions
answered about [Mr] Amaral’”.
(4) Breach #5: 24 September
2010.
44.
On 24 September 2010 there
was posted on the MF website a document headed “News
from the Madeleine Foundation…” above the Defendant’s
signature. There appears in the last paragraph the
following words:
“Despite the
severe restrictions now imposed on me as a result of the
McCann’s hiring Carter-Ruck to threaten a High Court
libel writ against me, the obvious contradictions in the
accounts of events… are among the factors that tell me
the whole truth about Madeleine’s disappearance has not
been told. I therefore remain personally committed to
continuing the campaign to prise out the truth, the
whole truth and nothing but the truth about why she was
reported missing…”.
45.
In October 2010 the
Portuguese courts discharged an interim injunction
restraining publication of a book by Mr Amaral which had
been granted on the application of the Claimants.
(5)
Breach #13: 2 January 2011
46.
On 2 January 2011 the
Defendant posted on the JH website a document headed
“Wendy Murphy writes about the cases of John Bennett
Ramsay, Caylee Anthony and Madeleine McCann in the
context of child sexual abuse and the use of
sedatives”. After referring specifically to the
Claimants as Madeleine’s parents, and to Dr Kate McCann
as “mom”, the document ends with the following:
“… all three cases
involve sedatives and young, cute kids… it doesn’t feel
very good to believe parents sell their children for sex
and porn. But what’s more important? Children – or the
comfort of our denial?”
6 January 2011.
47.
On 6 January 2011 Mr
Clarence Mitchell gave an interview on Radio Humberside.
He is described as chief public relations officer for
the Claimants. The transcript is exhibited to the
Defendant’s affidavit. He referred to it a number of
times in the correspondence, and again at the hearing
before me. It is a document to which he attaches great
importance.
48.
The interviewer asked Mr
Mitchell what the Claimants thought was the strongest
possibility of what happened to Madeleine. The
transcript of his answer reads as follows:
“Kate and Gerry
know Mad… know their daughter well enough to know she
didn’t wander out of the apartment as has often been
speculated. The only assumption they can make is
that someone took her out of the apartment that is the
working hypothesis on which the private
investigation is also based. That there is somebody,
perhaps or just two or three people out there who know
what happened and that there was an element of
pre-meditation, preplanning went into it. …the very fact
that nothing has been found of Madeleine since, not a
trace, tends to suggest that she has been taken
somewhere else and has been… hopefully, is being looked
after, or at least cared for… with someone. …that is…the
working hypothesis. In some cases, if … God forbid, she
had been harmed she probably would have been found long
ago which she hasn’t been and that’s why they keep
going… until they have the answer as to what has
happened and until they are presented with
incontrovertible proof that she has been harmed, they
will continue to believe – just as logically, without
any evidence to the contrary – that she could still just
have easily be alive.” (the emphasis is the Defendant’s)
49.
On 2 February 2011 the
Defendant wrote to Carter-Ruck. After referring to, and
citing from, Mr Mitchell’s words he wrote:
“Whilst I’m aware
that that undertaking remains in place, nevertheless
your clients, through their spokesmen, have conceded
that the abduction is “only an assumption”, and not a
fact, still less a universally acknowledged or
forensically proven fact. It is just what their
spokesmen said twice in the same interview, namely, just
a “working hypothesis”. I therefore give notice that I
consider that these statements by Mr Mitchell give me
complete freedom to give reasons why I question your
client’s assumption and equally, to bring forward
provable facts and coherent arguments against the
hypothesis put forward by your clients, and, indeed to
advance facts and arguments to support alternative
hypothesis”.
50.
On 3 February 2011 the
Defendant restored to the MF website the full version of
an article, parts of which he had edited out in February
2010 in response to a request from Carter-Ruck. The
article was under the heading “How did the alleged
abductor snatch Madeleine in a time slot of no more than
3 – 4 minutes?”. It referred to the interview given by
Mr Mitchell. The print out covers over 8 pages. This
was item 6 of the 26 items in the claimant’s table of
breaches.
51.
On 31 March 2011 there were
distributed in the streets near where the Claimants live
and work, and in neighbouring towns, a leaflet published
by the defendant headed “What happened to Madeleine
McCann? 50 facts about the case that the British media
are not telling you please copy this leaflet or pass it
to others when you have read it – thank you” (the “50
facts leaflet”). This was item 25 on the list of 26
alleged breaches in the claimant’s table.
(6) Breach #14: 16 April 2011
52.
On 16 April 2011 the
Defendant posted on the JH website the text of the 50
facts leaflet together with an introductory message.
This was the third of the original top ten alleged
breaches. His introductory message reproduced from
The Daily Mail a statement recording that the
Madeleine Foundation:
“now plans to
distribute [copies of the leaflet] to homes and shops
across the country. The leaflet is divided into four
sections: 1) Major contradictions in the statements of
the McCanns… 3) Strange things the McCanns have said and
done. 4) How the McCanns have wasted public money on
useless private detectives”.
53.
Near the start are the
words:
“Can we be sure
Madeleine McCann really was abducted by a stranger?
Please take a careful look at these facts about the
case, which you won’t find in any of our mainstream
media. And if you are concerned about the contents of
the leaflet, please copy and pass on to your friends and
contacts”.
(7) Breach #15: 2 May 2011
54.
On 2 May 2011 the Defendant
posted on the JH website a text under the title
“Suspicious minds – a thought with Daniel Freeman”. The
text is printed out over 6 pages in a very small single
spaced typeface. This was the second of the original top
ten alleged breaches. It is in the form of a dialogue
between the Defendant and the person referred to as
Garth. Garth wrote that continued doubt or suspicion is
nothing short of paranoia. He refers to the Defendant
as a spreader of suspicion, and he cites one of the
other campaigns which the Defendant had referred to in
his 60 facts booklet. In response to statements by
Garth the Defendant posted the following:
“… I have seen
evidence that those closely associated with … the
disappearance of Madeleine McCann were not telling the
truth …
… in that lucid
and concise report [of a Portuguese Police officer dated
10 September 2007] are several clear lines of evidence
and arguments suggesting that Madeleine McCann died in
Apartment 5A and that her parents and others covered it
up. I do not in any way risk libel action for saying
that, because what I have just written is an entirely
factual statement about the contents of [the] report …
By and large I
have not speculated about how she might have died. If
she died, it is entirely logical to think that the
parents might have had many reasons for not wishing
their child to be subject to a post-mortem by a
Portuguese pathologist …
There have been
many instances in recorded history, a lot of them quite
recent, where young children have died because of their
parents’ deliberate or accidental act, negligence or
neglect, and have then gone on to hide their bodies and
make up the most elaborate stories to hide what really
happened. Many of them were found out, sooner or
later”.
55.
On 12 May there was
published the book by Dr Kate McCann “Madeleine – Our
Daughter’s Disappearance and the Continuing Search for
Her”.
(8) Breach #16: 14 May 2011
56.
On 14 May 2011 the Defendant
engaged in an exchange of messages posted on the JH
website. The transcript extends to over two and a half
pages. The other person wrote about the appearance of
the Claimants on a television programme. It is the
responses written by the Defendant which the Claimants
allege to be made in contempt of court. These responses
include the following:
“… People nowadays
seem less able than they used to be to distinguish truth
tellers from liars …
They’ve come up
with this story in recent times as it gives a (just)
plausible reason as to why an abductor might have been
checking on apartment G5A … After four years, they still
can’t get their story straight … I can scarcely believe
that newspapers and media can recycle such utter and
patent rubbish … It’s so easy to pick their ludicrous
statements apart …”.
(9) Breach #7:18 May 2011
57.
On 18 May 2011 the Defendant
posted on the MF website a copy of a letter which he
said he had written to the Prime Minister that day. No
complaint is made of the fact that he wrote the letter
to the Prime Minister. What the Claimants complain of
is that he posted it on the public website. This was the
fifth of the original top ten alleged breaches. The
letter is under the heading “The need for a full public
enquiry into the disappearance into Madeleine McCann”.
There is a sub heading “two rival explanations of what
really happened to Madeleine McCann”. The first of
these accounts is identified as that put forward by the
Claimants, namely that Madeleine was abducted.
58.
The letter then goes on to
include the following
“By contrast, a
great many people consider that there is more than
adequate evidence that Madeleine McCann died in the
McCann’s holiday apartment and that her parents and
others have covered up this fact, and arranged to hold a
hoax “abduction” of Madeleine on the evening of 3 May
2007, Madeleine having already died before that
evening’s event … Dr Amaral … advances the view that she
may have died as the result of an accident whilst her
parents and friends were dining one and half minute’s
walk away. Another view of what might have caused
Madeleine’s death is the possibility that she was
over-sedated by the McCanns.
We do not wish to
review in this letter all the evidence that suggests
that Madeleine did die in the McCann’s apartment, …
There is also a very large amount of circumstantial
evidence suggesting that the McCanns and their friends
have not told the truth …
The 48 members of
the Madeleine Foundation, our many supporters, and a
huge number of others subscribe to the view that the
balance of evidence points in the direction of Madeleine
having died in the McCann’s holiday apartment. If that
hypothesis is correct, then the McCanns’ motive for
wanting a “Review” which would now open up the many
files that the Portuguese Police have up to now withheld
would be clear: not to find Madeleine, but rather to
trawl the files for any other evidence that may be
against them, so that they can defend themselves and
deal with any such evidence.
You may recall
that the Daily Mirror published an article in
February 2010 … part of the Mirror’s report ran
… The contradictions in Gerry
McCann’s statement might lead us to suspect a homicide …
Our requests
In the light of
all the above however we make these requests: (4) that
you …. make it crystal clear to both the reviewing team
and to the public that this “Review”, if it is to
proceed, will be able to pursue the hypothesis that
Madeleine McCann died in her parent’s holiday apartment
and that the McCann’s conspired to hide her body ….”
59.
On 3 June 2011 Carter-Ruck
wrote to the American Internet Service Provider (“ISP”)
which hosted a website on which there was posted the “50
facts” leaflet and other materials. They stated that
the purpose of the letter was to put the ISP on notice
of the unlawful content of the website and to invite
them to cease hosting it.
60.
The letter was passed to the
Defendant and on 8 June 2011 he posted his response to
it on the MF website. This posting was item 8 in the
list of 26 in the claimants’ table, and had been item 34
in their original list of 153 complaints. The
Defendant’s posting was in the form of a 14 page letter
addressed to Carter-Ruck. On pages 8 and 9 of that
letter he wrote the following:
“Given these
accurate statements by [Mr Mitchell] on behalf of your
client, it is clearly open to others to work on
alternative assumptions …
There is an
unfortunate history of parents covering up the death of
a child (whether the child had died by negligence,
neglect, accident or deliberate act, by claiming that
their child has been abducted …)”
61.
The letter also included the
following:
“… I have so far
as I am aware, avoided, in line with my court
undertaking, direct accusations that your clients have
or are to be suspected of, causing the death of
Madeleine or of disposing of her body, or that they have
lied about what happened or have covered up what they
have done.
Signing that court
undertaking was not, as you know, a vow of Trappist-like
silence over the continuing mystery of what really
happened to Madeleine McCann …
The legal advice I
received following your letters to me of 27 and 28
August 2009 was clear. Direct and false accusations
unsupported by facts rendered themselves liable to be
treated as libel. However, by the same token, the
rights of all citizens of Council of Europe countries to
free speech as enshrined in article 10 of the European
Convention … entitled one to, for example, criticise
others and to challenge claims made by others. The
advice I received also included very specific advice
that asking questions about claims by others did not and
could not amount to libel. …”
62.
On 22 June 2011 the
Defendant posted on the JH website words attributed to a
lady called Pat Brown under the heading “Pat Brown
thinks that Madeleine died between 8:30pm and 9:05pm on
Thursday 3 May 2007”. This was item 17 on the Claimants’
table of 26 complaints.
63.
On 7 July he posted on the
same website a posting printed out over 4 pages under
the heading “Contacting the Scotland Yard Review Team (SYRT)
…” This was item 18 on the Claimants’ list of 26, and
had been number six of the original top ten.
64.
On the same day the
Defendant posted on Twitter a link to the posting on the
JH website. This was item 24 on the Claimants’ list of
26 complaints.
(10) Breach #9: 11 July 2011
65.
On 11 July 2011 the
Defendant posted on the MF website a copy of the 5 page
letter he had written that day to DCI Redwood of the
Review Team. No complaint is made of the fact that the
Defendant wrote to a police officer. The complaint is
that he posted the letter on a public website. This was
the seventh of the original top ten alleged breaches.
The letter includes the following:
“We wish to submit
evidence to your Review which suggests that Madeleine’s
parents … have not told the truth … about the
disappearance of their daughter. This evidence also
suggests that the McCann’s friends in Portugal … may
also not have told the truth to the police about
Madeleine’s disappearance. Moreover, the evidence we
wish to present to you tends to suggest that Madeleine
McCann may have died in her parents’ apartment howsoever
that death may have been caused, and that others beside
the McCanns and the “Tapas 7” have conspired to cover up
the true circumstances of her death.
We have 3 classes
of evidence which we wish to submit to you these are as
follows:
1. A comprehensive
dossier of circumstantial evidence including new
material not disclosed in the Portuguese Police files …
which demonstrates, we say with clarity, that the
McCanns and their friends did not tell the truth …
[2] Evidence is
provided to support the claim that the man who funded
and directed the McCann’s private investigations, … is
deeply implicated in intimidating relevant witnesses
into silence …
[3] Information of
a first hand nature, received from a female insider
within the McCann Team, whose information strongly tends
to suggest that the entire McCann Team private
investigation team was exercised in the creation of a
huge smokescreen to cover up what really happened to
Madeleine McCann, rather than being a genuine attempt to
find Madeleine …
What we need to
know, in the clearest possible terms, please, is whether
your team is prepared to review in full any evidence,
forensic or circumstantial, that tends to show that
Madeleine died in the McCann’s apartment … and her body
then hidden …
… Last year we
published: “the Madeleine McCann case files: volume 1”
which reproduces evidence from the case which tends to
suggest that Madeleine McCann was not abducted …”
66.
On 20 July the Defendant
posted on the JH website extracts from, and a paraphrase
of parts of, the letter he sent to the SYRT on 11 July
2011. This was item 19 in the Claimants’ table of 26
complaints and had been item 97 of the list of 153, and
number eight on the original top ten.
(11) Breach #20: 3 August 2011
67.
On 3 August 2011 the
Defendant posted on the JH website a posting headed
“Scotland Yard WILL examine parents’ possible guilt re
Madeleine - official”. The Defendant referred to a
number of serious criminal offences with which he states
the Claimants could be charged under English law,
including causing or allowing the death of a child and
hiding the body and preventing an inquest. He concludes
with the words:
“Those of us who
believe the evidence strongly suggestS that Madeleine
McCann died in Apartment G5A have, I believe, a solemn
duty to explain this to DCI Andy Redwood and his
colleagues.”
68.
On 4 August 2011 an employee
of Carter-Ruck was able to purchase from the Defendant a
copy of “the Madeleine McCann case files: volume 1”.
This sale was item 2 on the Claimants’ list of 26
complaints.
69.
On 12 August 2011
Carter-Ruck wrote to the Defendant with a number of
complaints and gave him notice that they would apply to
the court to commit him for contempt of court. They
referred to their letters of 5 February, 15 July and 3
August 2010, and continued as follows:
“While it is the
case that you confirmed you would cease to publish
material which formed the subject of those complaints,
you have subsequently gone on to publish a large volume
of very similar material on your own website and
elsewhere.
Our clients have
given you every opportunity to comply with the
undertakings which you gave, and we have in the past
gone to some length to explain to you why – contrary to
your purported position – publications you have made or
procured have constituted both actionable libels and
placed you in contempt of court. However, despite our
efforts to explain the position to you, and despite our
clients giving you a number of opportunities to desist
from this behaviour it is clear that you have no
intention whatsoever of complying with your
undertakings, and therefore our clients have resolved
now to seek your committal for contempt of court.
We must also make
clear that while our clients reject as absurd the
“theories” which you advance about Madeleine’s
disappearance neither our clients nor we seek (and have
never sought) to prevent you from raising those
“concerns” with the appropriate authorities – whether it
be the law enforcement agencies, elected representatives
such as your Member of Parliament, Home Secretary or
even (as you have also done) the Prime Minister …
Our clients’
overriding purpose in bringing complaints against you
has always been to prevent your dissemination of false
and defamatory allegations about them which risk causing
damage to the ongoing search for their daughter, in
addition to unjustifiable damage to their reputation.
For this reason, they did not (as they were clearly
entitled to do) insist that you pay them libel damages
after they complained to you in 2009, and were content
to accept undertakings from you that you would desist
from the behaviour complained of …”
70.
On 17 August 2011 the
Defendant replied stating that he had just received the
letter and accompanying document. He wrote:
“In view of your
client’s request, I will embark straight away without
any admission of liability or concession as to being in
contempt of court as you allege, on removing or amending
the articles or threads to which your client objects”.
71.
On 18 August 2011 the
Defendant wrote to Carter-Ruck saying that, at his
request, the forum owner of the JH website had informed
him that she was in the process of removing the posts to
which the Claimants objected. He gave reasons why he
contended he was not in contempt of court, and concluded
by saying that he would defend any application to commit
and “will in addition make an application to vary the
terms of the undertaking”.
(12) Breach #22: 7 September
2011
72.
On 7 September 2011 the
Defendant posted text on the JH website under the
heading “What is the likelihood that the SY ‘review’
will be a whitewash?” He has since altered the heading
to read “DCI Redwood may be an honest man of
unimpeachable integrity and honesty who will conduct an
impartial, robust, full and fair review without fear or
favour”. This was the tenth of the original top ten
alleged breaches. In it he refers to the matters which
he had included in his letter 11 July to DCI Redwood,
adding that:
“this is all
evidence that points in the direction of Madeleine
McCann having died in her parents’ apartment rather than
that she was abducted”.
(13) Breach #23: 1 November
2011
73.
On 1 November 2011 the
Defendant posted on the JH website a text under the
heading “Sofa + accident = death, really?” It includes
the following:
“At the risk of
triggering a writ for contempt of court for breaching a
court undertaking given two years ago, I will comment on
this speculation about when and how Madeleine died… In
summary, looking at what evidence we have, Madeleine
died in the flat … her body was removed before 3 May,
this was not premeditated..”
The proceedings
74.
On 1 December 2011 the
Claimants issued their application that the Defendant be
committed for contempt of court.
75.
On 9 February 2012, the day
after the first directions hearing, the Defendant states
that he resigned from the Madeleine Foundation
Committee.
76.
On 22 February 2012 the
Defendant issued his application to be released from or
to vary the Undertakings. In support he made his first
affidavit dated 21 March 2012. It is 58 pages long.
77.
I described the basis for
this application in my October judgment and how that
application related to the Claimants’ application to
commit the Defendant for contempt of court:
“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.…
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….
28. …
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 [to vary or discharge the
Defendant’s undertaking] before determining the penalty.”
78.
On 3 May 2012 at the second
hearing for directions I adjourned the application to
commit to give the Defendant time to make a further
attempt to obtain public funding for his representation.
79.
On 12 July 2012 Carter-Ruck
wrote to the Defendant complaining that there had been
further breaches of his undertaking in postings he had
made on the JH website on 13 February 2012 and on 15 and
22 May 2012.
80.
On 4 January 2013 Carter-Ruck
wrote to the Defendant in response to his request that
they agree to an adjournment of the committal hearing
then expected to take place at the end of January. They
declined to agree. But they also went on to complain of
what they said were further breaches of the undertakings
in the form of website postings on 19 November and 19
December. They complained that the Defendant was
treating his obligations to the court “with the utmost
derision”.
MEANINGS
The law
81.
Since the Defendant has
never disputed responsibility for publication, and has
raised no issue as to any procedural matter (other than
his separate application to vary or discharge the
Undertakings), the only issue before the court on the
question whether the Defendant is in breach of his
Undertakings is what the publications complained of
meant.
82.
In approaching this issue I
shall first consider what the publications complained of
meant objectively. I shall consider separately what the
Defendant claims he intended or thought they meant. In
considering the objective meaning I will apply the test
which a court is required to apply at the trial of a
libel action where there is an issue as to what is the
natural and ordinary meaning of words alleged to be
defamatory of a claimant. But in applying that test I
shall abide by the requirement that I must be satisfied
so that I am sure that an alleged breach of an
undertaking is indeed a breach.
83.
Guidance on how to determine
the meaning of words alleged to be defamatory has been
given by the Court of Appeal, and recently summarised by
Sir Anthony Clarke MR in Jeynes v News Magazines Ltd
[2008] EWCA Civ 130 at [14]. It included the
following:
"The governing
principles relevant to meaning . . . may be summarised
in this way:
(1) The governing
principle is reasonableness.
(2) The
hypothetical reasonable reader is not naïve but he is
not unduly suspicious. He can read between the lines. He
can read in an implication more readily than a lawyer
and may indulge in a certain amount of loose thinking
but he must be treated as being a man who is not avid
for scandal and someone who does not, and should not,
select one bad meaning where other non-defamatory
meanings are available.
(3) Over-elaborate
analysis is best avoided.
(4) The intention
of the publisher is irrelevant.
(5) The article
must be read as a whole, and any 'bane and antidote'
taken together.
(6) The
hypothetical reader is taken to be representative of
those who would read the publication in question…
84.
I have not set out the whole
of the words which the Claimants claim are breaches of
the Undertakings, although the meaning of words must
always be considered in the light of the context in
which they are published. The main reason for my not
doing this is that the Defendant is extremely verbose,
and this judgment would be enormous if I were to set out
the whole context of each publication.
85.
But there is a further
reason. I do not consider that it would be fair to the
Claimants for the court to repeat in a judgment the
entirety of the publications by the Defendant which the
Claimants allege both to be in contempt of court, and to
be a further series of libels upon them. If I were to do
that it would facilitate the further publication of
these details under cover of the defence of privilege.
The meanings which the Claimants attribute to the words
complained of in this committal application are
allegations of the utmost gravity. If the Defendant or
anyone else chooses to repeat these allegations, then
the court should not pre-empt the decision of any other
court as to whether such republication is lawful or not.
Compare Cream Holdings Ltd v Banerjee [2004] UKHL
44, [2005] 1 AC 253 para [26].
86.
The decision not to identify
in a reserved judgment a fact or person that has been
identified in open court is not a reporting restriction,
nor any other derogation from open justice. The hearing
of this committal application was in public in the usual
way. The decision not to set out everything in a
judgment is simply a decision as to how the judge
chooses to frame the judgment.
87.
I make this clear because on
occasions in the past when I have not included in a
judgment the names of individuals, or other information,
that form of drafting has been misunderstood as a
decision to derogate from open justice. In Graiseley
Properties Ltd v Barclays Bank Plc [2013] EWHC 67 (Comm)
my judgment in
Joseph
v Spiller
[2012] EWHC 2958 (QB) was apparently cited by
counsel as an example of an anonymity order, although no
such order had been made by me in that case. In the
judgment in Joseph I used only initials to refer
to certain individuals who were not witnesses, but whose
names had been mentioned in documents, and by witnesses,
in open court. This has apparently been misunderstood as
indicating that I had granted anonymity orders when in
fact I had not. Their names had been freely mentioned in
open court in the usual way. But what happens in court,
if not reported at the time, may be ephemeral, and may
soon be forgotten and become difficult to recover,
whereas a reserved judgment may appear in law reports,
or on the internet, indefinitely. So it may be
unnecessary, and unfair to some persons, to name them in
a judgment.
Submissions of the parties
88.
Ms Page submits that the 60
reasons booklet, the sale of which is complained of as
breach #1, bears the meanings that the Claimants are
actually guilty of (a) causing the death of their
daughter, and (b) disposing of her body, lying about
what happened and covering up what they had done; in the
alternative, (c) that in any event that the Claimants
are to be suspected of each of those acts. I shall
refer to these as meanings (a), (b) and (ca) and (cb).
89.
Ms Page submits that these
meanings are also the meaning borne by each of the
following alleged breaches, as follows:
i)
Meaning (a) guilty of death:
breaches #1, #12, #13 (in the alternative and in any
event Ms Page submits that these publications carry
meaning (ca), that the Claimants are to be suspected of
causing the death.
ii)
Meaning (b) guilty of
disposing of the body etc: breaches #1, #4, #7, #9, #12
, #13, #14, #15, #16, #20, #22, #23 (in the alternative
and in any event Ms Page submits that these publications
carry meaning (cb), that the Claimants are to be
suspected of doing these acts.
iii)
Meaning (ca) to be suspected
of meaning (a), causing the death: breaches #7, #15,
#20
iv)
Meaning (cb) to be suspected
of meaning (b): breach #5.
90.
The document which primarily
sets out the Defendant’s case is his second affidavit
sworn on 21 March 2012. He there addresses a number of
general points, as well as his specific points related
to each alleged breach.
91.
The Defendant submits that
he has not at any time either before or after the giving
of the undertakings accused the Claimants of causing
their daughter’s death.
92.
The Defendant further
submits that his statements should go unpunished because
they are honest comment as that defence is explained by
the Supreme Court in Spiller v Joseph [2011] 1 AC
852; [2010] UKSC 53, and/or that it would be a violation
of his right under ECHR Art 10 to freedom of expression.
I shall address these arguments below.
93.
The Defendant does not make
specific submissions on the meanings of breach #1, other
than his general denial that he has ever accused the
Claimants of causing their daughter’s death.
94.
In my judgment breach #1
(February 2010) is proved: I am satisfied that the
booklet bears meanings (b) and (ca) and (cb). As to
meaning (a), I accept that many readers might reasonably
understand the meaning to be that the Claimants did
cause the death of their daughter, but applying the high
standard that I must apply on this application, I am not
satisfied that that is the objective meaning that would
be understood by the hypothetical reasonable reader.
95.
On breach #4 the Defendant
concedes that it would have been better if he had said
“there is no evidence apart from the claims of the
McCanns and their friends to suggest that Madeleine
was abducted”, and other formulations. He concedes that
the Claimants may have highlighted another breach, but
he goes on to say of that:
“If so, then in
response the Defendant submits that it is factually
accurate to say that one of the lines of enquiry pursued
in both the interim and final reports of the Portuguese
Police was indeed the possibility that Madeleine might
have died in the McCanns’ apartment”.
96.
In my judgment breach #4 (4
July 2010) is proved: I am satisfied that the posting
bears meanings (b) and (ca). In the alternative, it
would in any event bear meaning (cb).
97.
The Defendant does not make
specific submissions on the meaning of breach #5.
98.
In my judgment breach #5 (24
September 2010) is proved: I am satisfied that the
posting bears meaning (cb).
99.
The Defendant does not make
specific submissions on the meaning of breach #7.
100.
In my judgment breach #7 (18
May 2011) is proved: I am satisfied that the posting
bears meanings (b), (ca) and (cb). The posting includes
the words quoted and adopted from another publisher “The
contradictions in Gerald McCann’s statements might lead
us to suspect a homicide”.
101.
The Defendant does not make
specific submissions on the meaning of breach #9.
102.
In my judgment breach #9 (11
July 2011) is proved: I am satisfied that the posting
bears meanings (b) and (ca). In the alternative it would
in any event bear meaning (cb).
103.
The Defendant does not make
specific submissions on the meaning of breach #12.
104.
In my judgment breach #12
(24 July 2010) is proved: I am satisfied that the
posting bears meaning (b) and (ca) (“the parents are
covering up a crime… I would not rule out the
possibility of a child predator”). In the alternative it
would in any event bear meaning (cb).
105.
In relation to breach #13
the Defendant submits that this bears none of the
meanings complained of.
106.
In my judgment breach #13(2
January 2011) is proved: I am satisfied that the posting
bears meanings (a), (b). They would in any event bear
meanings (ca) and (cb). The posting specifically adopts
the “early news reports” that Madeleine had been
sedated.
107.
The Defendant submits that
the posting complained of as breach #14 is purely
factual and contains nothing libellous.
108.
In my judgment breach #14
(16 April 2011) is proved. A list of factual statements
can carry an inferential meaning additional to the
literal meaning of each fact, and that is very clearly
the case here. I am satisfied that the posting bears
meaning (b) and (ca). It would in any event bear meaning
(cb).
109.
The Defendant submits that
in the postings complained of as breach #15 he was
replying to an attack on himself by Garth. He submits
that he was merely repeating what was in the Portuguese
Police Reports.
110.
In my judgment breach #15 (2
May 2011) is proved. It is no answer to say that the
Defendant was being attacked by Garth. He does not
merely repeat what is in the Portuguese Police Reports:
he clearly adopts it. I am satisfied that the postings
bear meanings (b) and (ca). They would in any event bear
meaning (cb).
111.
On the posting alleged to be
breach #16 he wrote that “the Defendant admits that he
could have put this differently” and that his “comment”
was “robust”.
112.
In my judgment breach #16
(14 May 2011) is proved. I am satisfied that the posting
bears meanings (b) and (ca). It would in any event bear
meaning (cb).
113.
The Defendant submits that
the posting alleged to be breach #20 merely raises
questions and gives hypothetical answers. This is an
unrealistically and unreasonably literal approach.
114.
In my judgment breach #20 (3
August 2011) is proved. I am satisfied that the posting
bears meanings (b) and (ca). It would in any event bear
meaning (cb). It specifically raises the suggestion that
the Claimants caused or allowed the death of their
daughter.
115.
The Defendant makes no
submission on the meaning of the posting alleged to be
breach #22.
116.
I am satisfied that breach
#22 (7 September 2011) is proved. I am satisfied that
the posting bears meaning (b). It would in any event
bear meaning (cb).
117.
In respect of the posting
alleged to breach #23 the Defendant accepts that he
“re-asserted that it was likely on the evidence that
Madeleine McCann died in her parents’ apartment, in line
with the conclusions of Dr Amaral …”
118.
I am satisfied that breach
#23 (1 November 2011) is proved. The posting bears
meanings (b) and (ca). It would in any event bear
meaning (cb).
MENTAL ELEMENT OF CONTEMPT OF COURT
119.
In respect of some of the
alleged breaches the Defendant has said that he did not
intend the meanings that I have found the publications
to bear. In addition the Defendant asked the court to
have regard to the occasions on which he had complied
with the Claimants requests to take down or cease
distribution of material.
120.
The Defendant contended
before me that the publications on the JH website which
the Claimants complain of were not sufficiently serious
to amount to breaches of the Undertaking. He suggests
that this was a forum to which members of the public had
access, but only after some registration or other
procedure. He had not raised this suggestion in his
affidavits, or at any time before the hearing. Further,
he submitted that it is clear from the postings on the
JH website other than his own that contributors are
overwhelmingly individuals whose views of the Claimants’
case are similar to his own. He referred to
Smith v ADVFN Plc
[2008] EWHC 1797 (QB) where Eady J said:
“13. It is
necessary to have well in mind the nature of bulletin
board communications, which are a relatively recent
development. This is central to a proper consideration
of all the matters now before the court.
14. This has been
explained in the material before me and is, in any
event, nowadays a matter of general knowledge.
Particular characteristics which I should have in mind
are that they are read by relatively few people, most of
whom will share an interest in the subject-matter; they
are rather like contributions to a casual conversation
(the analogy sometimes being drawn with people chatting
in a bar) which people simply note before moving on;
they are often uninhibited, casual and ill thought out;
those who participate know this and expect a certain
amount of repartee or "give and take". ..
16. When
considered in the context of defamation law, therefore,
communications of this kind are much more akin to
slanders (this cause of action being nowadays relatively
rare) than to the usual, more permanent kind of
communications found in libel actions. People do not
often take a "thread" and go through it as a whole like
a newspaper article. They tend to read the remarks, make
their own contributions if they feel inclined, and think
no more about it.
17. It is this
analogy with slander which led me in my ruling of 12 May
to refer to "mere vulgar abuse", which used to be
discussed quite often in the heyday of slander actions.
It is not so much a defence that is unique to slander as
an aspect of interpreting the meaning of words. From the
context of casual conversations, one can often tell that
a remark is not to be taken literally or seriously and
is rather to be construed merely as abuse. That is less
common in the case of more permanent written
communication, although it is by no means unknown. But
in the case of a bulletin board thread it is often
obvious to casual observers that people are just saying
the first thing that comes into their heads and reacting
in the heat of the moment. The remarks are often not
intended, or to be taken, as serious. A number of
examples will emerge in the course of my judgment.”
121.
It may be that there were
relatively few publishees of the words that the
Defendant posted on the JH website. I need make no
finding on how many there were. And, in the case of the
postings in response to the person named Garth, I am
prepared to accept that the Defendant may have gone
further than he would otherwise have done, because he
felt himself to be provoked. But even on those
assumptions there can be no question in the present case
that each of the numerous postings by the Defendant
should be construed as “not to be taken literally or
seriously and is rather to be construed merely as
abuse”. The repetitions on this and the MF website, and
the production of the booklet and other documents, make
clear that the Defendant intended to say what he said,
and that he intended what he said to be taken seriously.
122.
It is clear is that the
representative of Carter-Ruck who searched the 300 most
recent entries by the Defendant on the JH website (and
that is the extent of the search done) faced no material
obstacle to accessing the site as an ordinary member of
the public.
123.
Cruddas v Adams
[2013] EWHC 145 another case on publications in a
weblog, and the facts in question more closely resemble
those of the present case than the facts in ADVN.
As Eady J said at para [47]:
“As
to vindication, it is probably fair to say that, however
high the sum awarded, the purpose can hardly ever be
fully achieved. At one end of the spectrum, there will
be readers who choose to go on believing the
allegations, perhaps out of cynicism about libel
proceedings, or because some people are willing to
believe anything which confirms their own pre-existing
prejudices. At the other end, there will be those who
did not take the allegations seriously because
experience tells them to be wary of florid allegations
circulating on the Internet, unsupported by evidence,
from people who appear to have bees in their bonnets. In
the centre ground, however, there will be readers for
whom the allegations have raised at least a suspicion
over a claimant's reputation which will only be removed
by a convincing apology or finding of the court. It is
to those people that the court's attempts at vindication
must be primarily directed.”
124.
As the Court of Appeal said
in Cairns v Modi
[2012] EWCA Civ 1382, [2012] WLR(D) 302 at [27]:
" … We recognise
that as a consequence of modern technology and
communications systems any such stories will have the
capacity to 'go viral' more widely and more quickly than
ever before. Indeed, it is obvious that today, with the
ready availability of the worldwide web and of social
networking sites, the scale of this problem has been
immeasurably enhanced, especially for libel claimants
who are already, for whatever reason, in the public
eye."
125.
In the course of his
evidence in chief the Defendant said, according to my
note:
“My understanding,
however wrong, was that proceedings against me would be
a libel action and that I would be able to bring forward
factual allegations. I was at no time deliberately
trying to flout the Undertakings. If I have trespassed
and have breached the Undertakings, I would like to
apologise”.
126.
I have found that he did
allege that the Claimants caused the death of their
daughter: breach #13 (2 January 2011). In that case I am
not sure that he intended to make the allegation when he
adopted the words of another person.
127.
The mental element of
contempt of court is set out in cases cited in Arlidge
Eady & Smith 4th ed paras 12-83 to 12-96. It
has since been restated in Masri v Consolidated
Contractors International Company SAL [2011] EWHC
1024 (Comm) at paras [150] to [155] as follows:
“150.
In order to establish that someone is in contempt it is
necessary to show that (i) that he knew of the terms of
the order; (ii) that he acted (or failed to act) in a
manner which involved a breach of the order; and (iii)
that he knew of the facts which made his conduct a
breach: Marketmaker Technology (Beijing) Co Ltd v
Obair Group International Corporation & Ors
[2009] EWHC 1445 (QB). There can be no doubt
in the present case but that the judgment debtors have
at all times been fully aware of the orders of this
court. It is not and could not sensibly be suggested
that the conduct of which complaint is made was casual
or accidental or unintentional. However, the question
arises whether it is, also, necessary to show that they
acted knowing that what they were doing was a breach of,
and intending to breach, any of the orders.
… 155 …
In my judgment the
power of the court to ensure obedience to its orders for
the benefit of those in whose favour they are made would
be inappropriately curtailed if, in addition to having
to show that a defendant had breached the order, it was
also necessary to establish, and to the criminal
standard, that he had done so in the belief that what he
did was a breach of the order – particularly when a
belief that it was not a breach may have rested on the
slenderest of foundations or on convenient advice which
was plainly wrong.”
128.
In the present case there
can be no doubt that the Defendant had the required
knowledge. In any event, I am sure that he intended to
allege that the Claimants are to be suspected of causing
the death of their daughter, and did in fact dispose of
her body, lie about what happened and covered up what
they had done. I am sure that he intended his words to
bear the other meanings which I have held they do bear.
The words are too clear, and the repetitions too
numerous, for any other interpretation to be put upon
what he did. And while the Defendant has made frequent
references to statements emanating from the Portuguese
authorities during their investigations, he makes no
mention of the Report of the District Attorney dated 21
July 2008, a copy of which is exhibited to the third
affidavit of Ms Martorell. That includes the following
(in translation):
“With regard to
other possible crimes, whilst we cannot dismiss the
possibility of a killing, given the high degree of
probability, there is no evidence for this in the case
records.
The
non-involvement of Madeleine’s parents in any criminally
significant action is apparent from the fact that they
were not in the apartment at the time of her
disappearance, their normal behaviour up to that moment
and afterwards, as witnessed by the statements of the
witnesses, the analysis of the telephone communications
and the conclusions of the experts reports…
None of the
indications which led to their being made suspects was
substantiated later; there was no proof of them having
notified the media before the police, the laboratory did
not confirm the traces found by the dogs, and the
initial e-mail indications transcribed above later
turned out to be harmless
…. Therefore
having considered the foregoing, I order:
… b) Filing of the
papers concerning the suspects Gerald Patrick McCann and
Kate Marie Healy, as there is no evidence that they
committed any crime defined by Article 277.1 of the Code
of Criminal Procedure”.
129.
The point that the Defendant
had complied with his Undertakings some of the time
might be relevant to penalty. It could not be relevant
to the breaches which have been proved. But even as to
penalty it is of little help to the Defendant. Ms Page
described the Defendant’s conduct as playing cat and
mouse with the Claimants. He was testing them with false
or disingenuous assurances and demands for explanations
to which, as a member of the public with no
responsibility for law enforcement, he was not entitled.
Ms Page’s description of what the Defendant has been
doing is apt. I find that his assurances were sometimes
genuine, in that he has in fact complied with his
Undertakings some of the time. But he has been testing
the Claimants with disingenuous assurances which he has
subsequently retracted, as appears from the extracts
from the correspondence cited above.
130.
I do not find credible that,
after he had given the Undertakings, he believed that
the proceedings against him would be in the form of a
libel action, or that he would be able to attempt to
prove the truth of his allegations. I find that he was
deliberately flouting the Undertakings, and that his
apology is insincere.
131.
For the purposes of
considering the appropriate penalty, the court will take
into account the extent of each publication, and the
circumstances of each publication, which the court has
found to be in breach of an undertaking or injunction.
THE RIGHTS TO FREEDOM OF SPEECH,
ACCESS TO THE COURTS AND TO JUSTICE
132.
The Defendant relies on his
rights to freedom of expression and to a fair trial. He
cites Arts 10 and 6 of the Convention, as advocates
commonly do, although in this case these Convention
rights add nothing to the rights that have long been
recognised at common law. See most recently The
Children's Rights Alliance for England, R (on the
application of) v The Secretary of State for Justice
[2013] EWCA Civ 34 para [29].
133.
Article 10 of the Convention
reads, so far as material:
“(1) Everyone has
the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and
impart information and ideas without interference by
public authority and regardless of frontiers…
(2) The exercise
of these freedoms since it carries with it duties and
responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society … for
the protection of the reputation or rights of others,
for preventing the disclosure of information received in
confidence, and for maintaining the authority… of the
judiciary”.
134.
Article 6 of the Convention
reads, so far as material:
“1.
In the determination of his civil rights
and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial
tribunal established by law….”
135.
There is no doubt that a
defendant’s right to freedom of expression is engaged
when he is sued for libel. The right is engaged at every
stage of the proceedings: to whether or not he has a
defence, what remedies the claimant may be entitled to,
whether the defendant is to be found to be in breach of
an undertaking or injunction, and, if so, what penalty
should be imposed.
136.
There is also no doubt that
a defendant’s right to a fair trial is engaged at each
of those stages of the proceedings. But so too are the
rights of a claimant engaged at each of those stages.
137.
Since I have not heard the
Defendant’s application to vary the Undertakings, I make
no ruling as to whether his right to a fair trial was,
or was not, infringed when the court accepted his
Undertakings. The fear of financial ruin which he claims
to have had, if he defended the claim for libel, has not
apparently deterred him from defending the committal
proceedings, or from attempting to defend it with
defences which are irrelevant to the committal
proceedings, but would have been available to him in the
libel action. But that is simply one factor that a court
hearing the application to vary the Undertakings may
have to take into account.
138.
So far as the committal
hearing is concerned, the Defendant has demonstrated the
capacity to research the law and draft legal documents
that is to be expected of someone who had been a social
worker and a solicitor. I have endeavoured to ensure
that he has had a fair hearing, as I believe that he
has. But whether or not he has is for others to judge.
139.
However, the Defendant has
demonstrated no recognition that the Claimants have
rights to a fair trial as well as himself, and that they
also have a right to their reputations. The main
difference between the submissions that he has advanced
for himself and the submissions that would (I apprehend)
have been advanced for him if he had been professionally
represented is that a professional advocate would have
brought to the case an objectivity (that is a
recognition of the Claimants’ rights), which the
Defendant has failed to demonstrate. And if he had been
professionally represented he would not have caused the
Claimants to incur the costs of dealing with the
adjournments and the prolix and irrelevant material that
the Defendant has put before the court. It is not just a
self represented litigant who bears adverse consequences
from the fact that he is self represented.
140.
In XY v Facebook Ireland
Ltd [2012] NIQB 96 McCloskey J was considering an
interim application for an injunction to restrain the
publication of postings on the internet about a person
who had been convicted of sexual offences. There are two
significant differences from the present case: in the
present case the Claimants obtained a final Undertaking
from the Defendant, and they have been convicted of
nothing. So what McCloskey J said applies with greater
force in the present case. He said at para [13]:
“These proceedings
serve as a timely reminder that we live in a society
governed by the rule of law. This is the supreme
principle. All members of society submit and subscribe
to a system wherein the law is dominant. This system
protects every member of the population. The efficacy of
this system requires, and is guaranteed by, an
independent judiciary. Non-discrimination, or equality
of treatment, is one of the towering principles of the
common law. Furthermore, it is a universally recognised
value and is enshrined in the Human Rights Act 1998. It
is easy to overlook that this principle is also of
biblical pedigree and vintage,... Furthermore, this
cornerstone principle was identified by Professor Dicey
[in the Law of the Constitution, published in 1885] as
one of the three core components of the rule of law. At
its heart, it ensures that all citizens are equal before
the law. As Lord Bingham has observed, this general
principle is nowadays beyond question [The Rule of Law,
p. 56]. In addition, by virtue of section 6 of the Human
Rights Act 1998, the Court must avoid acting in a manner
incompatible with any person's Convention rights, where
engaged. Thirdly, the sanctions imposed by the criminal
law on offenders are, presumptively, adequate and
exhaustive. Allied to this is the rule that criminals
are punished by due process of law, and not otherwise,
in a society which treats anarchy as repugnant.”
141.
The principle that “… unless
and until the orders about which [the defendant]
complains are actually set aside he is required to obey
them” (para 15 above)
is a principle that is necessary if there is to be the
rule of law and not anarchy.
142.
The right to freedom of
expression, whether at common law or under Art 10, is
not an absolute right that prevails over all others. In
the present case it is subject to the Claimants’ rights
under the judgment which they obtained in November 2009
(which incorporates the Undertakings), and to the need
to uphold the authority of this court, which made that
order.
THE DEFENDANT’S APPLICATIONS AT THE
START OF THE HEARING
143.
At the start of the hearing
before me the Defendant made three applications of which
he gave notice in a letter dated 30 January 2013 and a
document of the same dated headed “The Defendant’s
response 30 January 2013 to the Claimants’ Skeleton
Argument dated 29 January 2013”: (1) that the
proceedings should be adjourned indefinitely, or so long
as he was without publicly funded legal representation;
(2) the proceedings should be stayed as an abuse of the
process of the court; (3) that there should be admitted
in evidence a statement from a witness with expertise in
accountancy who had given a statement on the disposal of
the funds which the public had contributed to support
the Claimants.
144.
I rejected all three
applications. The evidence of the witness has no
relevance at all to whether or not the Defendant is in
breach of his Undertakings.
145.
In support of the
application for an adjournment, the Defendant submitted
that so long as he was without publicly funded legal
representation, there was such an inequality of arms
between him and the Claimants that he could not have a
fair trial.
146.
That he does not have public
funding to defend himself against the Claimants’ claims
for libel, and their application to commit him for
contempt of court, cannot have the consequence that his
rights must prevail and that he can simply ignore the
Undertakings he has given to the court.
147.
In effect, the Defendant’s
submission is a straightforward denial of the Claimants’
rights to equal treatment and protection under the law.
His attitude that fundamental or human rights are only
for himself is one that is by no means unique to
himself. It brings the law of human rights into
disrepute. The true position is obvious: there can be no
human rights unless those claiming them also acknowledge
their responsibility to respect the rights of others, as
Art 10 specifically provides.
148.
I would add that the court
will generally never know why a litigant is
self-represented. The court does not have to take the
explanation put forward by the litigant at face value.
Communications between lawyers and litigants are
privileged, so no questions can be asked about attempts
that a litigant may have made to obtain legal
representation. A self-represented litigant may have
funds in excess of the limit for eligibility for public
funding, and choose not to spend his own funds on legal
representation. A self-represented litigant may have had
the benefit of legal advice, and chosen to reject that
advice. If that is the case, the litigant is under no
obligation to inform the court or his opponent. There
can be no presumption in favour of self-represented
litigants that, but for the unavailability of public
funding, they would be represented by an advocate who
would be willing to advance, and better able to advance,
the submissions that the self-represented litigant has
himself put before the court. There are no presumptions
one way or the other as to whether there is an
inequality of arms. The court must decide each case on
the basis of the evidence and submissions which are in
fact before it. In a case where one party is
self-represented the court will be bound to look for
points that the litigant may have missed, and counsel
for the other party is under a duty to the court to
assist by reminding the court of points of law which may
be available to the litigant. Ms Page included such
points in her submissions.
149.
The application for a stay
was on the basis that the extent of publicly expressed
doubt about the Claimants’ claim that Madeleine was
abducted is such that it is disproportionate and
unreasonable to charge the Defendant with contempt of
court for publishing such doubts. He submitted that it
is also unfair that he should be prevented by his
Undertakings from publishing statements which others may
publish, and continue to publish, in this jurisdiction
and abroad, without being subject to the sanction of
committal for contempt of court. He claims that there
are tens of thousands of persons who publish such
material. This evidence does not support his case, and
he rightly did not refer me to website postings other
than those adduced in evidence by the Claimants.
150.
The Defendant gave the
Undertakings, whereas others have not. It appears that
there are other members of the public who have published
defamatory allegations about the Claimants, but whom the
Claimants have not sued. However, the Defendant
acknowledges in his first affidavit that they sued
Express Newspapers Ltd. On 19 March 2008 Express
Newspapers Ltd acknowledged in a statement in open court
that there was no truth in the allegations that they had
published in their newspapers. As recounted in that
statement, which is available on the Lawtel website,
what that defendant accepted as being “entirely untrue”
was
“the general theme
of the articles was to suggest that [the Claimants] were
responsible for the death or disappearance of Madeleine
or that there were strong or reasonable grounds for so
suspecting, and that they had then conspired to cover up
their actions, including by creating “diversions” to
divert the police’s attention away from evidence that
would expose their guilt”.
151.
There is undisputed
evidence from Ms Martorell that the Claimants have
attempted to stop others from publishing the same or
similar allegations, with varying degrees of success. It
is well known, as Ms Martorell records, that Associated
Newspapers Ltd also apologised to the Claimants. Both
they and Express Newspapers Ltd also paid substantial
damages to the McCanns. If it were the law, as the
Defendant appears to submit it should be, that the
Claimants cannot proceed against him unless they also
proceed against all other publishers of similar
allegations, it would follow that the Claimants would in
practice have no access to justice at all.
152.
The Defendant further
submitted that he should in these proceedings be
permitted to establish the truth of his allegations, and
to advance the other defences that would be available in
a libel action, namely honest comment and qualified
privilege. He persisted in attempting to introduce
evidence as to the truth of his allegations, both in
submissions and in his cross-examination of Ms Martorell,
notwithstanding that I had explained to him why he could
not do so, not only in my October judgment (see para 15
above) but also at the start, and at various other
stages, of the present proceedings.
CONCLUSIONS ON CONTEMPT OF COURT
153.
For the reasons given above,
I am satisfied that the Defendant has been in breach of
the Undertakings in each of the thirteen instances which
the Claimants set out to prove at the hearing of their
application to commit him for contempt of court. I make
no findings in relation to any of the other alleged
breaches.
154.
The case is re-listed, at
the same time as the handing down of this judgment, for
consideration of the penalty which should be imposed and
any other issues that remain. |