Case No: HQ09D05196
Neutral Citation Number: [2012] EWHC 2876 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/10/2012

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	(1) GERRY MCCANN (2) KATE MCCANN	Claimants	
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	TONY BENNETT	Defendant	

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Jacob Dean  (instructed by Carter Ruck) for the Claimants
Mr Bennett appeared in person 

Hearing dates: 11 October 2012
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Judgment
Mr Justice Tugendhat : 
1.	There are two applications before the court.  On 14 August 2012 the Claimants issued an Application Notice for directions to be given for the hearing of the committal application which they had issued on 1st December 2011. By that application they allege that the Defendant has been guilty of contempt of court in that he is in breach of the undertakings given to the court in an order dated 25 November 2009. They ask that he be imprisoned or made subject to such penalty as the court thinks appropriate.
2.	There is also before the court an Application Notice dated 20 February 2012 issued by the Defendant for an order varying the undertakings he gave to the court on 25 November.
3.	The background against which these applications are made is as follows.
4.	It is very well known, that the Claimants are the parents of Madeleine McCann.  On 27 August 2009 solicitors for the Claimants wrote to the Defendant stating that he had been engaged in a course of conduct, largely under the guise of “The Madeleine Foundation” which, as they advised, constituted harassment pursuant to the Protection from Harassment Act 1997. They also stated that he was responsible for the publication of numerous grave and actionable libels.  They asked him to desist, failing which proceedings would be issued in the High Court.  The Defendant took advice from solicitors, and correspondence ensued.  An agreement was reached pursuant to which the Defendant agreed to give undertakings to the court.  For that purpose it was necessary that a claim form be issued.  
5.	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.  
6.	Also on 25 November 2009 the court made an order which included the following:
“All further proceedings in this action be stayed except for serving the claim form and this order on the Defendant and carrying out the terms of settlement, and for this purpose the parties are at liberty to apply”.
7.	The order was headed with a penal notice (that is the words “If you the Defendant breach the undertakings given in this order you may be held to be in contempt of court and you may be imprisoned, fined or have your assets seized”).  The undertakings given by the Defendant to the court were (a) to deliver up or destroy all versions of publications complained of, (b) to use his best endeavours to delete or otherwise prevent access to defamatory allegations about the Claimants published by him on specified websites, and (c) not to repeat the same or any similar allegations about the Claimants as those set out in Schedule A to the order.  That Schedule to that order read:
“The Defendant undertakes not to repeat allegations that the Claimants are guilty of, or are to be suspected of, causing the death of their daughter Madeleine McCann; and/or of disposing of her body; and/or of lying about what had happened and/or of seeking to cover up what they had done.”
8.	Shortly after the making of that order the Defendant continued to publish statements about Madeleine McCann. Solicitors for the Claimants started to write a series of letters to the Defendant stating that he was acting in breach of the undertakings he had given on 25 November 2009.  On 1 December 2011, and after further correspondence, the Claimants issued the application notice to commit the Defendant for contempt of court.  The schedule to that application notice listed 153 publications in 2010 and 2011 (up to 19 November 2011) which the Claimants contend each amount to a breach of the undertakings given by the Defendant to the court.  
9.	In the covering letter solicitors for the Claimants drew to the Defendant’s attention (and enclosed copies of) the decision of the Court of Appeal in  Hammerton v. Hammerton [2007] EWCA Civ 248 setting out the availability, in principle, of legal aid for defendants facing applications to commit for contempt of court.  
10.	On 8 February 2012 the matter came before me for directions.  Following an indication from the bench that the Claimants might select from the 153 allegations a more limited number which could conveniently be determined by the court, the Claimants agreed to do so, and I made directions for the service of a revised schedule. This did not involve any concession on the part of the Claimants that any of the allegations were not well founded. It was simply case management.
11.	At that hearing the Defendant intimated a wish to be released from some of the undertakings he had given in November 2009. Accordingly, I directed that any application by him to that effect should be issued by 22 February 2012.  I directed the matter be listed again after 17 April 2012, in order to give the Defendant an opportunity to find legal representation.
12.	The Defendant attempted to obtain legal aid but he has not succeeded.  His applications have been considered, but he has available to him funds which he has been told make him ineligible for legal aid.  When the matter came before me for the second time, as it did on 3 May 2012, the Defendant’s inability to obtain legal aid had not yet become clear, and I adjourned the matter again for the question of his entitlement to be determined.
13.	The solicitors for the Claimants also acted for Mr Smethurst in a libel action that he had brought against the Defendant, and which was settled on 7 December 2011.  The terms of the settlement included that the Defendant would pay the sum of £2,500 damages to the Find Madeleine Fund (which he did), and that he would pay Mr Smethurst’s costs.   However there has been a dispute as to the amount payable in respect of those costs, and the Defendant has not yet made any payment under that order for costs.  He states that when his liability has been established, and he has made payment of what is due, it is likely that his financial circumstances will be such that he becomes eligible for legal aid.  But he cannot give a date as to when that will be and he asks the court today to adjourn the committal proceedings for a third time, until he does become eligible for legal aid.
14.	By letter dated 25 September 2012 the Defendant has made clear that he does not ask for the complete discharge of the undertakings he gave in November 2009. He wants the undertaking to be varied to enable him to publish to the public at large (the undertakings do not restrict his right to communicate with the police and other authorities) 
“that there is credible evidence that (1) Madeleine McCann died in the McCanns’ holiday apartment, (2) the McCanns have covered this up, and (3) have on occasions lied about matters connected to Madeline’s reported disappearance ”.
15.	The Defendant applied for a direction that his application for a variation for the undertaking be heard first, and that there follow a separate trial of the Claimants’ application to commit him for contempt. Alternatively, he asks that there be one trial at which his application is heard immediately before the committal application.
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.
17.	For the Claimants, Mr Dean submits that the proper course is that there be determined as soon as practical whether there have been any, and if so what, breaches by the Defendant of the undertakings which he gave to the court on 25 November 2009 (as listed in the shortened Schedule to the application to commit).  Mr Dean submits that if, contrary to his case, there are no breaches, then the application to vary the undertakings may not arise for consideration.  On the other hand, if the court finds that the Defendant has breached the undertakings, then the court may wish, in determining the appropriate penalty, to consider the application by the Defendant to vary the undertakings.  
18.	Mr Dean made clear on his clients’ behalf, that they deny that there is any truth in any of the allegations which the Defendant wishes to be free to make, and they do not accept that he would have any prospect of establishing a defence of honest comment, or any other defence to what they say are serious libels.  
19.	But they also take a preliminary point. They submit that he is not, in any event, entitled to seek the variation he does seek, at least on the basis that what he wants to say is true or honest comment.  Mr Dean submits that the undertakings were given as part of a settlement agreement, and the court could only permit the Defendant to resile from that agreement on very limited bases. The Defendant would have to satisfy the court of one of the well established grounds for impugning any contract, such as misrepresentation or common mistake. The Defendant does not allege either of these grounds, although he does say he was subject to economic duress, because of what it would have cost to defend the libel action which the Claimants threatened to bring against him.  Mr Dean submits that there is a public policy in promoting the settlement of legal proceedings by mutual agreement. Such agreements entered into by consent should not be set aside otherwise than in circumstances that in which a contract would be set aside.  He cites Warren v. Random House Group [2009] EMLR 1; [2008] EWCA Civ 384 at paras 16-43.
20.	When the matter came before me on an earlier occasion, and again on 11 October 2012, I expressed concern as to the procedural route which the Defendant has chosen to pursue his stated aim.  It seemed to me that a variation of the undertaking that he gave in November 2009 might not, of itself, even if he were to achieve it, leave him free to make the allegations which he wishes to be able to continue to make.  
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.
26.	It is a rule of law of great importance that undertakings to the court (like injunctions) must be obeyed so long as they are in force. If a party restrained by such an order wishes to contend that the order ought not to have been made, or ought not to remain in force, it is not open to that party to ignore the order and then, if faced with a committal application, to ask for that committal application to be adjourned pending the determination of an application to vary the undertaking or injunction. If that were permitted, the administration of justice would be seriously undermined: injunctions and undertakings would not be the effective remedies that they are required to be.
27.	It is regrettable that this committal application has had to be adjourned twice already. But that was necessary in order to ensure that the Defendant’s rights to be given funding for his representation, in so far he has such rights, are not to be interfered with. The possibility that his financial circumstances may alter, and if they do, at a date unknown, is not a reason why the hearing of the application to commit him for contempt of court should be delayed any further. 
28.	On the other hand, there is less urgency in the Defendant’s application, although if it is to be made it should be made promptly. I would see no objection to any such an application being deferred until after the hearing of the committal application, perhaps to the point at which the court has decided whether there has been any, and if so what, breach of the undertaking. 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 before determining the penalty.
29.	For these reasons there will be an order, the terms of which I invite the parties to agree. The substance of the order will be that the Claimants’ committal application be listed as soon as is practical, and that the Defendant’s application be adjourned to be considered by the judge hearing the committal application as that judge may decide. The Defendant’s application will be treated as an application to lift the stay of the action, and, if the stay is lifted, to vary the undertakings pending trial or other disposal of the action.