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Bennett letter to Carter Ruck - 18/9/09

Bennett letter to Carter Ruck - 18/9/09

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Published by: Ambersuz on Dec 20, 2009
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From: Tony Bennett M.A. 66 ChippingfieldTel: 01279 635789 HARLOWe-mail: ajsbennett@btinternet.com EssexCM17 0DJCarter-Ruck Friday 18 September 2009International Press Centre76 Shoe LaneLONDONEC4A 3JBYour Ref: IH/DH/13837.1For the attention of Isabel HudsonDear Sirs
re: Alleged libel of Dr Gerald McCann and Dr Kate McCann-Healy
Following your letter of 27 August and my e-mail of 11 September, and yours of 15September, I have now taken legal advice as you suggested in your letter.In short, the advice received is that the legal issues involved in replying to your letter areso many and so complex that the advice of expert counsel is needed. I am not therefore ina position to reply in full to your letter at this time as I had hoped.I can say that one of the many issues which counsel will need to consider in detail is thedelay in your clients taking the action they have now done in threatening libel proceedings.It was as long ago as Sunday 26 October 2008 when, in response to the setting-up of TheMadeleine Foundation website on 20 October 2008, your clients’ chief public relationsspokesman, Mr Clarence Mitchell, was reported in
The People
newspaper as saying, andI quote his words directly from the article: “Our lawyers are watching him. They areconstantly monitoring his claims, which we consider are libellous”.So, even before 26 October, nearly 11 months ago, your clients’ lawyers believed thatsome of my claims (or those on The Madeleine Foundation website) were ‘libellous’.Furthermore, the enclosed letter was sent to your firm on 27 October under a Certificateof Posting, which we hold, from Madeleine Foundation Chairman Debbie Butler.Virtually identical letters were also sent direct to your clients, to their co-ordinatinglawyer Edward Smethurst, and to Mr Clarence Mitchell. That letter clearly advised your clients that we were content to remove or amend any statement on our website whichthey could demonstrate to be untrue.
That remains true to this day.
 Our book: “What Really Happened to Madeleine McCann?” was published on 7December 2007, over nine months ago.
I am advised therefore that your demands for an immediate response have to be weighedagainst your clients’ inaction to date, despite your clients having purportedly identifiedmaterial as libellous before 26 October 2008. Clearly your clients having delayed actionfor so long must allow me to take reasonable steps to deal with the many requests andlegal issues within your 27 August letter.I need to inform you that tomorrow (19 September) I begin a pre-booked holiday in thiscountry until 1 October. I shall then be out of the country from 7 to 16 October taking myZagreb-born 89-year-old mother on a pre-booked trip to Austria, again booked before 27August, which was triggered by a most unfortunate family tragedy when a close relative,film-maker Gerhard Friedl, committed suicide in July. My mother will be visiting andstaying with his family. On both occasions I shall of course be unable to deal withcorrespondence and on each occasion I shall not be in internet contact. Please ensure thatAdam Tudor makes very careful note of that. Should you require proof that both holidayswere booked prior to 27 August, I can supply that.It is very possible that I will not be able to see and consider counsel’s advice beforeleaving the country on 7 October. Given the complex nature of the legal issues at stake,from which I am sure your firm would not dissent, and taking into account your clients’long delay in taking any action about the contents of either our website or our book, mySolicitor considers it would be reasonable to ask you to wait until, say, one week after Friday 16 October, in order to be able to reply fully to your letter.I note your e-mail of 15 September in which you give me until 18 September to furnishyou with a ‘substantive reply’. You quoted the ‘Pre-Action Protocol for Defamation’which you showed me for the first time by e-mail attachment on 15 September. Youcompletely failed to notify me of this Protocol, as you should have done, when you firstwrote your letter to me on behalf of the McCanns on 27 August.It is a matter entirely for you and your clients if you decide now to instruct barristers todraft particulars of claim, writs etc. because this letter does not contain a substantiveresponse to your clients’ demands. However, I can be certain that should this matter  proceed to a court hearing, the court would take into account issues of proportionality andfairness in deciding whether you had waited a reasonable period for a response.Factors that the court would undoubtedly take into account, notwithstanding the twoweek period mentioned in the Pre-Action Protocol for Defamation, include:1)Your delay of over 10 months between the publication of our website and writingto me2)Your delay of exactly 10 months between the letter sent to you, the McCanns,Clarence Mitchell and two other of the McCanns’ lawyers by Debbie Butler on 27October 2008 and your letter of 27 August 20093)Your and your clientsfailure to take any steps to complain about any of thespecific contents of either the website or the booklet to me or to Ms Butler despitespecific offers to withdraw or amend any statements in them that your clientscould demonstrate to be untrue4)The question of why, if your clients claim, as they do, in your letter of 27 August,
that ‘the publication of the allegations complained of self-evidently ‘threaten veryserious harm to our clients’ reputations’ they did not act immediately to injunctthe website and booklet and apply for them to be, respectively, taken down and pulped at the outset. If they had done, they could have avoided the damage theysay has since been done by hundreds of thousands of people visiting our websiteand reading our booklet5)The gross imbalance between your clients who are wealthy enough to be able(several times) to hire the country’s top libel lawyers - and myself, whose annualincome is below the tax threshold6)The holidays, that I can demonstrate have both been pre-booked, which willseriously interfere with my or my Solicitor’s ability to respond within the 14-day period mentioned in the Pre-Action Protocol7)The undoubted complexity of the legal issues involved
in this particular and unique case
which in all fairness you must concede justifies a further delay whilsta barrister’s opinion is sought - you yourselves know the complexity of the issues.I turn now in addition to the following relevant extracts from the Pre-Action Protocol for Defamation, which you sent.First, regarding the 14-day period you have given me for reply, you made no mention of this in your initial letter received on 1 September 2009.
You should have done.
 Second, in your further letter dated 16 September, you say: “The 14-day period is the period
by the Pre-Action Protocol for Defamation”. That is
and I believe a deliberate misrepresentation of the Pre-Action Protocol. Given that youwebsite claims that you are ‘the most feared libel lawyers in the U.K.’, you have aresponsibility not to mislead those to whom you are writing, and here the ProfessionalCode of Conduct for Solicitors is relevant. Principle 17.01: ‘Fairness’ states: “Solicitorsmust not act, whether in a professional capacity or otherwise, towards anyone in a waywhich is deceitful…”. I regard your statement that the 14 days is ‘prescribed’ as deceitfulas you know it is not ‘prescribed’.Indeed, the Protocol states the following, inter alia:a)“If the Defendant believes that s/he will be unable to respond within 14 days, thens/he should specify the date by which s/he intends to respond”. That is what I amdoing by this letter  b)“The [Defendant’s] Response should include whether more information isrequired…If more information is required [by the Defendant], then the Defendantshould specify precisely what information is needed to enable the claim to bedealt with and why”. I do require further information and this is set out below.c)Paragraph 1.5 notes that the overriding objective’ is to ‘deal with a case justlyand the Protocol goes on to define several relevant considerations, including thefollowing which seem to me to apply very much in this particular case:(i)ensuring that the parties are on an equal footing [clearly they are not atthe moment since Adam Tudor is reported to on a sizeable monthlyretainer for advising the McCanns on libel issues and the McCanns canafford to instruct the most feared libel lawyers in the land

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