From: Tony Bennett M.A. Tel: 01279 635789 e-mail: ajsbennett@btinternet.

com Carter-Ruck International Press Centre 76 Shoe Lane LONDON EC4A 3JB Your Ref: IH/DH/13837.1 For the attention of Isabel Hudson Dear Sirs

66 Chippingfield HARLOW Essex CM17 0DJ Friday 18 September 2009

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 15 September, 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 are so many and so complex that the advice of expert counsel is needed. I am not therefore in a 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 the delay 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 The Madeleine Foundation website on 20 October 2008, your clients’ chief public relations spokesman, Mr Clarence Mitchell, was reported in The People newspaper as saying, and I quote his words directly from the article: “Our lawyers are watching him. They are constantly monitoring his claims, which we consider are libellous”. So, even before 26 October, nearly 11 months ago, your clients’ lawyers believed that some 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 Certificate of Posting, which we hold, from Madeleine Foundation Chairman Debbie Butler. Virtually identical letters were also sent direct to your clients, to their co-ordinating lawyer 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 which they could demonstrate to be untrue. That remains true to this day. Our book: “What Really Happened to Madeleine McCann?” was published on 7 December 2007, over nine months ago.

I am advised therefore that your demands for an immediate response have to be weighed against your clients’ inaction to date, despite your clients having purportedly identified material as libellous before 26 October 2008. Clearly your clients having delayed action for so long must allow me to take reasonable steps to deal with the many requests and legal issues within your 27 August letter. I need to inform you that tomorrow (19 September) I begin a pre-booked holiday in this country until 1 October. I shall then be out of the country from 7 to 16 October taking my Zagreb-born 89-year-old mother on a pre-booked trip to Austria, again booked before 27 August, 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 and staying with his family. On both occasions I shall of course be unable to deal with correspondence and on each occasion I shall not be in internet contact. Please ensure that Adam Tudor makes very careful note of that. Should you require proof that both holidays were 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 before leaving 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, my Solicitor 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 furnish you 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. You completely failed to notify me of this Protocol, as you should have done, when you first wrote 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 to draft particulars of claim, writs etc. because this letter does not contain a substantive response 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 and fairness in deciding whether you had waited a reasonable period for a response. Factors that the court would undoubtedly take into account, notwithstanding the two week period mentioned in the Pre-Action Protocol for Defamation, include: 1) Your delay of over 10 months between the publication of our website and writing to me 2) 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 27 October 2008 and your letter of 27 August 2009 3) Your and your clients’ failure to take any steps to complain about any of the specific contents of either the website or the booklet to me or to Ms Butler despite specific offers to withdraw or amend any statements in them that your clients could demonstrate to be untrue 4) 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 very serious harm to our clients’ reputations’ they did not act immediately to injunct the 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 they say has since been done by hundreds of thousands of people visiting our website and reading our booklet 5) 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 annual income is below the tax threshold 6) The holidays, that I can demonstrate have both been pre-booked, which will seriously interfere with my or my Solicitor’s ability to respond within the 14-day period mentioned in the Pre-Action Protocol 7) 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 whilst a 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 prescribed by the Pre-Action Protocol for Defamation”. That is untrue and I believe a deliberate misrepresentation of the Pre-Action Protocol. Given that your website claims that you are ‘the most feared libel lawyers in the U.K.’, you have a responsibility not to mislead those to whom you are writing, and here the Professional Code of Conduct for Solicitors is relevant. Principle 17.01: ‘Fairness’ states: “Solicitors must not act, whether in a professional capacity or otherwise, towards anyone in a way which is deceitful…”. I regard your statement that the 14 days is ‘prescribed’ as deceitful as 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, then s/he should specify the date by which s/he intends to respond”. That is what I am doing by this letter b) “The [Defendant’s] Response should include whether more information is required…If more information is required [by the Defendant], then the Defendant should specify precisely what information is needed to enable the claim to be dealt 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 justly’ and the Protocol goes on to define several relevant considerations, including the following 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 at the moment since Adam Tudor is reported to on a sizeable monthly retainer for advising the McCanns on libel issues and the McCanns can afford to instruct the most feared libel lawyers in the land

(ii) (iii) (iv) (v)

dealing with the case in ways that are ‘proportionate’ the importance of the case [given its international significance, that must be a factor in this case] the ‘complexity of the issues’, and ‘the financial position of each party’ (see point (c) (i) above.

You did not mention any 14-day ‘response time in your initial letter, as you should have done, and when you did mention it you claimed it was a ‘prescribed’ time limit when on perusal of the Protocol it clearly is not. I shall therefore be reporting your conduct to the Solicitors Regulation Authority. Information needed As is manifest form Paragraphs 3.4 and 3.5 of the Code, it is clear that I have the right to ask for reasonable information before considering my substantive response and my legal options. The information I and my Solicitor require is not much. It is simply this: Why, after Debbie Butler wrote to you, to the McCanns themselves, to Clarence Mitchell and two other sets of the McCann’s many lawyers on 27 October, did you leave it until 27 August 2009 to write a letter claiming that our website, launched on 20 October 2008 and our booklet, published on 7 December 2009, ‘threatened very serious harm to our clients’ reputations”. The Pre-Action Protocol is crystal clear: “In particular, time is of the essence in defamation claims…almost invariably, a Claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation”. The information I seek is this: I want to know why your clients delayed over 10 months from the launch of our website before they instructed you to write your letter of 27 August. I think there can be only two reasons: Either: (a) you advised them at the time (after all, Adam Tudor appears to have been on a monthly retainer from the McCanns for some considerable time) that, having regard to the Pre-Action Protocol, they should sue immediately for defamation, but for whatever reason they refused to take your advice, Or: (b) you failed to advise them of Paragraph 1.4 of the Pre-Action Protocol and the overriding need to act quickly if anyone think their reputation is being tarnished. The Protocol is plain: “Time is always [not sometimes] ‘of the essence”. Please convey your clients’ explanation for not acting sooner to restore what they claim caused ‘serious harm’ to their reputation, but instead waiting for over 10 months to write to me, as soon as convenient. In addition, as you will have seen from yesterday’s letter, I have taken legal advice on the other letter you have sent me about your clients Brian and Patrick Kennedy and have

been able to furnished you with a substantive reply which I think meets all your clients demands. That was for two reasons: (1) the legal issues were far less complex and (2) your client’s demands were far less extensive in that case. I am in no way ducking or delaying a reply and as soon as I have further legal advice regarding your clients’ demands, I or my Solicitor will reply in full and substantively. I am willing to undertake therefore that either my Solicitor or I will respond in full to your letter of 27 August on or before Friday 23 October. Given (a) your failure to inform me initially of the existence of the Pre-Action Protocol (b) the misleading information you gave me subsequently about it, (c) that Paragraph 1.5 of the Pre-Action Protocol gives a number of situations where a response in 14 days may not be practicable, and (d) given that from tomorrow I shall be absent on pre-booked holidays for 21 out of the next 26 days, I consider that an undertaking by me to reply no later than by 23 October meets the critieria in the Pre-Action Protocol and I suggest that, if proceedings are commenced by your prior to that date, a court would find my request not unreasonable in the very peculiar circumstances of this case. If we are practically able to reply sooner, we will. I wish also to correct a further inaccuracy I have noted on page 2 of your letter. The final paragraph of your letter states: “…you recently chose to plumb new depths by posting leaflets to residents of the village in which our clients live with their children”. I must inform you that I have never ‘posted’ or delivered or distributed any of the ‘10 Reasons’ leaflets nor indeed any other information or leaflet about Madeleine to anyone in Rothley. You need to withdraw that claim from your letter. Finally, a Mrs Brenda Ryan, a former owner of the 3Arguidos Forum which you mention in your original letter, has asked me to covey the following information to you: QUOTE: I need to make my position very clear. I have no control over the 3Arguidos site. I am not still in a position to have a say over the postings that you referred to in your letter to Carter-Ruck. I do not have a copy of the database and neither do I have any access rights to the database. I had no access to the database prior to the 3Arguidos going down and before I left. I never had access to the server side of things or the capability to back up the database. Please inform Carter Ruck that I was not the owner of 3Arguidos after 28th May 2009 (the date being prior to your postings about the Kennedys in July), and that I was not even an administrator when they wrote to you on 27th August. I merely forwarded you the e-mail address of ‘BeoWulf’ [the current owner]. I have no control over the 3Arguidos, its database or whether it would ever come back on the internet. UNQUOTE Yours sincerely

Tony Bennett

ENC. Letter of 27 October 2008 from Ms Debbie Butler, Chairman of The Madeleine Foundation, to Carter-Ruck

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