Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

13 - MAI 3 - Accord Bennett/Smetshurst/MC



Accord passé entre Anthony Bennett, Edward Smethurst et les MC 
moyennant l'abandon, par AB, de l'appel contre sa condamnation par la High Court en février 2013 et une réduction de 93% des frais dus par AB

McCanns v Tony Bennett
1. AB is required to formally withdraw his application, made on 20 February 2012, to vary three of the 16 Undertakings he gave to the Court and the McCanns in November 2009 - and he has already done so by a letter to the High Court.
2. AB appealed to the Court of Appeal on 13 March 2013, as he had every right to, against the judgments of Mr Justice Tugendhat in the High Court made on 21 February 2013. His appeal was accepted and registered as appeal No. A2/2013/0684 and was due to be listed for a hearing - but AB has been asked to withdraw that appeal and has now done so.
3. In return, the McCanns have agreed to reduce their overall costs claim against AB by 93%. They have reduced their claim against AB from a total of around £370,000 to £27,500.
4. Tony has now paid an initial £12,500 required by the McCanns and agreed to pay the remaining balance (of £15,000) by monthly payments of at least £125 per calendar month for the next 10 years, i.e. until he is 75½.
5. In addition, AB must pay a further £47,500 to the McCanns, should either of the following occur:
a. he breaches any of the 16 undertakings, or
b. he fails to keep to his monthly payment agreement.
6. Mr Justice Tugendhat’s sentence of a 3-month prison term, suspended for one year, remains in place, so AB can be immediately sent to Pentonville Prison if the High Court finds he has breached any of his 16 undertakings (before 21 February 2014).


Edward Smethurst v Tony Bennett
1. Tony had already paid the sum of £2,500 into the Find Madeleine Fund in early 2012 in full and final settlement of Edward Smethurst’s libel damages claim.
2. Edward Smethurst agreed that if a settlement were to be agreed in the McCanns v Bennett matter, he would reduce his costs claim from the original amount claimed, namely £52,713.26, to £7,500 - a reduction of 86%.

To summarise:
In exchange for the McCanns and Edward Smethurst reducing their combined costs claim against him from a total of around £420,000, to £35,000 - a 92% reduction overall - Tony has been required to:
* Withdraw his appeal against Mr Justice Tugendhat’s judgment,
* Withdraw his application to vary three of the 16 different undertakings he gave to the McCanns and the High Court in November 2009,
* Agree to be bound for life by the 16 undertakings he gave to the Court and the McCanns in November 2009, and
* Agree to make no further Application either to lift the stay on the McCanns’ original Libel Claim. or to vary or
discharge any of the undertakings he gave in November 2009.


The Court Order:
The Court Order embodying this settlement is not secret and I am able therefore to post its full terms, which are as follows:


IN THE HIGH COURT OF JUSTICE
Claim No. HQ 09 D 05196
QUEEN’S BENCH DIVISION
The Honourable Mr Justice Tugendhat
BETWEEN:
GERRY MCCANN & KATE MCCANN Claimants
and
ANTHONY BENNETT Defendant


CONSENT ORDER

UPON the Court reading the following correspondence:
(a) Letter of Carter-Ruck to Tilbrooks Solicitors dated 18 March 2013
(b) Letter of Tilbrooks Solicitors to Carter-Ruck dated 26 March 2013
(c) Letter of Carter-Ruck to Tilbrooks Solicitors dated 27 March 2013
(d) Letter of Carter-Ruck to the Court dated 16 April 2013, copied to Tilbrooks Solicitors.


AND UPON the Defendant:
1. Acknowledging that he continues to be bound by the Undertakings which he gave to the Court (“the Undertakings”) contained in the Order herein of 25 November 2009 (“the Order”), to which is attached a penal notice;
2. Agreeing to the dismissal of his application by way of Application Notice of 20 February 2012 (“the Defendant’s Application”) to lift the stay of these libel proceedings imposed by paragraph 2 of the Order (“the Stay”) and/or to vary or discharge the Undertakings; and
3. Undertaking forthwith to withdraw his appeal by Appellant’s Notice filed with the Court of Appeal on 13 March 2013 from the Order for Committal of Tugendhat J (“the Committal Order”) made on 21 February 2013 (“the Appeal”)

AND UPON the CLAIMANTS:
4. Agreeing to limit their total costs recovery pursuant to the Committal Order to £75,000 inclusive of interest (“the Claimants’ Costs”) in full and final settlement thereof, and so long as the Defendant complies with the following payments plan, namely:
(a) The Defendant to pay £12,500 on account of the Claimants’ Costs within 28 days of the date of this
Order, and
(b) The Defendant to pay a further £15,000 on account of the Claimants’ costs by way of monthly instalments of not less than £125 paid on or before the 25th day of each calendar month (or if the 25thof any given month is not a working day, the nearest working day thereafter) for a total period of 10 years, the first such payment being made on 25 May 2013 to the Claimants’ Solicitors’ client account, the final such payment to be made on 25 April 2023, unless by then the Defendant has fully discharged the balance of the £15,000.
5. Agreeing not to enforce payment of the balance of £47,500 of the Claimants’ Costs, save in the event of:
(a) Any future breach by the Defendant of the Undertakings;
(b) The whole or part of the payments provided for in 4(a) and 4(b) above remaining unpaid upon its due date;
(c) The initiating by the Defendant of a fresh application to lift the Stay;
(d) The initiating by the Defendant of a fresh application to vary or discharge the Undertakings;
(e) The failure of the Defendant to withdraw the Appeal [made to the Court of Appeal] or the initiating by the Defendant of a fresh appeal against the order for Committal of 21 February 2013


BY CONSENT IT IS ORDERED THAT:
6. The Claimant have permission to enter judgment for the whole of the balance of the Claimants’ Costs agreed at £75,000 then outstanding in the event of:
(a) A further finding by the Court or admission by the Defendant of any breach of the Undertaking committed by him after the date of this order;
(b) The whole or any part of the payment provided for in 4(a) and 4(b) above remaining unpaid upon its due date;
(c) The initiating by the Defendant of a fresh application to lift the Stay;
(d) The initiating by the Defendant of a fresh application to vary or discharge the Undertakings;
(e) The initiating by the Defendant of a fresh appeal against the Order for Committal of 21 February 2013.
7. The Defendant’s Application is hereby dismissed.
8. Each party has permission to apply.
9. Save as already set out above, there be no order as to costs.

Dated this seventeenth day of April 2013
SEALED by the High Court this eighteenth day of April 2013

STATEMENT NOTED BY THE COURT:
I, Anthony Bennett, the above-named Defendant, confirm that I have taken legal advice on the terms of this Order from Tilbrooks Solicitors and that I understand those terms and the consequences of any failure to comply with them.
Signed by: Anthony Bennett, 8 April 2013
Signed by: Carter-Ruck, Solicitors, 6 St. Andrew Street, LONDON, EC4A, Solicitors for the Claimants
Signed by: Tilbrooks Solicitors, Quires Green, Wilingale, ONGAR, Essex, CM5 0QP, Solicitors for the Defendant


Additional Statement from AB, 3 May 2013

I start by thanking once again the forum-owner who originally set up ‘The Complete Mystery of Madeleine McCann’, largely to help me, and who has remained loyal and helpful throughout all the ups and downs of the last four years.
Today is exactly six years since the parents of Madeleine McCann reported her missing.
For the past 5½ years I have been intensely interested in this case and have made many public statements on it. The legal actions against me have however forced me to recognise that this activity must cease.
Here is a brief history of more recent events concerning the legal actions against me by the McCanns and Edward Smethurst:
Recent Events
On 5 & 6 February Mr Justice Tugendhat heard evidence in relation to an application by the McCanns to commit me to prison, restricted to the very narrow issue of: ‘Has Mr Bennett broken any of his undertakings?’.
No other matters whatsoever could be taken into consideration during this trial. Not even the question of whether all the undertakings were reasonable ones to have given in the first place.
Shortly afterwards, Carter-Ruck told me that their total costs in the matter had now risen to well over £300,000, including fees for barristers Adrienne Page Q.C. and Jacob Dean of £69,270 (inc. VAT), and their own fees which then totalled £233,299.20 (inc. VAT but excluding witness expenses and various Court fees and other ‘disbursements’, which amounted to several thousand pounds on top of that).
On 18 February, on my own initiative, I told Carter-Ruck that I would be prepared to consider an overall settlement in which I abandoned any further legal action to vary or discharge three of my undertakings, in exchange for a very substantial reduction in the McCanns’ costs.
The McCanns responded swiftly by saying they were ‘interested’ in such a proposed settlement, but would wait for Mr Justice Tugendhat’s formal decision on 21 February.
On 21 February Mr Justice Tugendhat found that in 13 instances (and in those 13 instances only) I had breached one or more of my undertakings.

In passing, I should point out for the record that:
(1) The McCanns did not seek at the trial to prove that the publication of ‘The Madeleine McCann Case Files Volume 1’ was a breach of any of my undertakings. They withdrew that from an earlier list of 26 alleged breaches which they had set out to the Court back in March 2012
(2) Similarly, the McCanns also withdrew from that list of 26 alleged breaches the allegation that my public reading on a YouTube video of the ‘48 questions’ put by the Portuguese Police to Dr Kate McCann was a breach of any of my undertakings.
Thus Mr Justice Tugendhat made no ruling as to whether the book: ‘The Madeleine McCann Case Files Volume 1’, or the reading of the 48 questions, were breaches of any of my undertakings.
I should also point out in fairness that the McCanns’ position is that they only pursued 13 alleged breaches, for reasons of convenience and case management, and they maintain that all the other 140 alleged breaches were also breaches of my undertakings.
On 21 February Mr Justice Tugendhat sentenced me to a suspended 3-month jail sentence and ordered the court costs to be assessed if not agreed.
Following further correspondence, on 6 March Carter-Ruck wrote to me, without prejudice, saying that the McCanns would be prepared limit their claim against me to £75,000. That sum was to be paid by an initial lump-sum of £7,500 plus paying the remaining £67,500 over the next 37½ years at the rate of £150 a month.
This would have meant paying the court costs until I was 103 years old. In addition, they would take a charging order on the marital home, meaning that if I died before 103, they would be entitled to claim the balance owing, plus interest, from my estate.
  
On 13 March I lodged an appeal to the Court of Appeal against Mr Justice Tugendhat’s judgment. The normal fee on lodging such an appeal is £465, but I was exempted from paying the fee on grounds of low income. I have since agreed to withdraw that appeal as part of an overall settlement.
At this time, I also instructed Mr Robin Tilbrook of Tilbrooks Solicitors to conduct negotiations with the McCanns, as a result of which a new offer was put to me and I accepted.
The Settlement Oder above was approved by Mr Justice Tugendhat on 17 April, was sealed by the High Court on 18 April, and sent to me a few days ago.
I have now paid the amounts of £12,500 costs due to the McCanns and £7,500 costs to Edward Smethurst. In each case, by the way, these are payments direct into the bank accounts of Carter-Ruck. I have in addition instructed my bank to pay Carter-Ruck £125.00 per calendar month, starting on 25 May, and until 25 April 2023.

Observations
Above all else, these proceedings were conducted in a legal framework where those with sufficient funds are able to sue or threaten to sue for libel, and those with insufficient funds must choose whether to give in, or conduct their own defence - and if appropriate finance any counter-claims, as I elected to do by defending the contempt proceedings in person and applying to vary three undertakings.
I have agreed to withdraw my appeal to the Court of Appeal against Mr Tugendhat’s judgment. And this means that I am legally bound to accept its verdicts.
I will however make one brief comment. He implied in Paragraph 148 of his judgment that there was some element of choice in my deciding to represent myself. I can assure him that there was not. There was no way I could have sustained the cost of legal representation to oppose the fire-power of Carter-Ruck, their barristers, and, of course, whoever is funding them.
Legal Aid is simply not available to defendants in libel proceedings, despite rulings by the European Court of Human Rights stipulating that defendants who cannot afford the high costs of defending themselves in defamation cases should be entitled to state aid.
All High Court judges who rule on libel cases are aware of this situation.

The practicalities
Mr Justice Tugendhat made a number of comments in his judgment, none of which I can now appeal. For example, he said that my publications were ‘a flagrant breach’ of my undertakings.
However, he also said that my apologies both to the High Court and to the McCanns before him on 21 February were sincere. And so they are.
I did not intend to defy the High Court. I thought that I would have had valid defences for my publications, but I did not. I cannot now continue with any legal action in relation to my publications.
In his judgment (Paragraph 108), Mr Justice Tugendhat said that even for me to repeat facts in the case could be deemed libellous and a breach of my undertakings. He said in relation to the contents of a certain leaflet: “A list of factual statements can carry an inferential meaning additional to the literal meaning of each fact…”
In other words, he said: Facts can be libellous.
That statement by Mr Justice Tugendhat is one reason why I really cannot continue to make any more public statements about Madeleine’s reported disappearance. The impact of my actions on members of my family is another. Besides that, the process of defending yourself and pursuing legal claims on your own is both stressful and mentally exhausting. The possibility of being sent to prison, being made a bankrupt and losing my home were all factors which have weighed heavily on my mind. It is time for me to cease making any more statements on the case - not even repeating facts.

Very many people have helped and supported me, in all kinds of ways, great or small, particularly during the legal proceedings. I am truly grateful to each and every one of you who have helped me one way or another during this period.
AB