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Excellent stuff Tony.

Tony Bennett wrote:It may not all be plain sailing for Mr Edward Smethurst in his Libel Claim, which by the way cost a one-off fee of £1,150 for him to issue.

It seems both he and his libel lawyers Carter-Ruck have failed in a number of key respects to adhere to the requirements of what is called the Pre-Action Protocol on Defamation; link:-

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/protocols/prot_def.htm#pagetop

Here's my reply to Carter-Ruck sent at lunch-time today, I've had to edit it for various legal reasons:

From: Mr Tony Bennett
66 Chippingfield
HARLOW
Essex
CM17 0DJ

Tel: 01279 635789

e-mail: ajsbennett@btinternet.com Essex
Mobile: 07835 716537

Wednesday 17 August 2011

Carter-Ruck
6 St. Andrew Street
LONDON
EC4A 3AE

Your Ref: AT/IH/14811.1

Attention: Isabel Hudson

Sent by hard copy and by e-mail

Dear Carter-Ruck

re: Edward Smethurst’s Summons etc.

On Monday 15 August I returned from holiday to find your letter of 9 August 2011 in my letter-box, enclosing (1) Mr Smethurst’s Claim Form issued on 9 August, claiming damages ‘not exceeding £100,000’ (2) An ex parte order made by Master Eyre the same day ordering ‘documents filed at court’ in this case to be ‘placed in a sealed envelope marked ‘Not to be provided to any non-party without the leave of a Judge or the Senior Master of the Queen’s Bench Division…’,’ and (3) Mr Smethurst’s Application Notice with reasons supporting his application for this ‘secrecy of documents’ order.

Background

The history of this matter may be summarised briefly, as follows.

On 9 May 2011 I opened a thread on the internet forum known as ‘The Complete Mystery of Madeleine McCann’ (CMOMM), re-named as such incidentally after the McCanns’ spokesman Clarence Mitchell on a Channel 4 broadcast in March 2011 referred to Madeleine’s disappearance as ‘a complete mystery’. He has since referred to his clients’ claim that Madeleine was abducted as a ‘hypothesis’ or ‘assumption’.

This thread included two photographs of Mr Smethurst’s houses in Meadowhall, north-west Rochdale. I learnt from a letter your firm sent to Automattic Inc. and WordPress on 1 June, a copy of which was sent to me by the owner of the ‘Hardlinemarxist/McCannexposure’ blog, that Mr Smethurst was upset about the publication of these photographs and that he had already (which is significant) complained to Greater Manchester Police (GMP) that this action, coupled with leafleting in his area, amounted to ‘criminal harassment’. Eleven weeks later, GMP have not contacted me regarding Mr Smethurst’s complaint.

Later on 9 May, on the same thread, I gave details of two people [rest of this paragraph withheld for legal reasons].

Before giving this information, I made this very clear statement on the thread in question: “Lest it be thought by anyone that I am making any accusation against Edward Smethurst, I am not. I am merely giving out publicly-available information aboutpeople he was linked to on Facebook”. You will be aware of this as no doubt you have a screenshot of the thread.

I repeated that very statement in the largest possible typeface on another posting shortly afterwards. No doubt you will also be aware of that. You did not acknowledge this vital material fact in any of your three letters to me.

I am informed that Mr Smethurst closed his Facebook account on 10 May 2011, the day after my posting, or possibly the day after that, or else that he changed his settings from ‘public’ to ‘private’.

I heard nothing whatsoever from Mr Smethurst about the matter of this thread until 12.21pm on Thursday 4 August when I received an e-mail from your Mary Peevers. It is clear therefore that your client knew all about the contents of this thread back in May, in order for you to have written the letter you did to Automattic on 1 June. Please explain why Mr Smethurst did not act to query the postings on this thread until well over two months later.

Within the space of little more than an hour I had placed two prominent statements on that thread, one at the head of the thread and one at the end, reaffirming that the contents of the Facebook messages of [Mr Smethurst's Facebook Friends] did not amount in any way to an allegation or accusation against Mr Smethurst. In addition I made some minor changes to make it clear that Greg Bailey was not a ‘Facebook friend’ of Mr Smethurst but just of Mr Smethurst’s other two friends.

I replied to you at 1.29pm.

In that e-mail letter I clearly explained to you that I would be away from home from early on 5 August to 15 August on a pre-booked holiday, and would take legal advice on your e-mailed letter on my return. I do not use the internet whilst away on holiday and do not have a laptop.

At 4.16pm the same day you replied stating that Mr Smethurst was still not satisfied with the actions I had taken. You stated: “Accordingly, should you now fail to remove the defamatory postings, together with the new notice, we will advise our client to issue proceedings for libel against you without further notice to you”.

I replied to you at 10.27pm on 4 August, informing you that I had, in addition, “…carefully amended and updated those postings and in the process made it clear that Mr Smethurst appears now no longer to have a Facebook presence.

In the selfsame letter I asked you to explain why you regarded the quotations from Mr Smethurst’s ‘Facebook Friends’ as libellous. I wrote: “I am not quite clear as to whether Mr Smethurst is saying he was totally unaware of the interests of his Facebook friends, in which case I shall be happy to make that clear, or is he denying that he knows people like Ben Murphy, Greg Bailey and James Halley? If so, I shall be happy to make that clear and inform readers of the forum that Mr Smethurst says he never knew these three Facebook Friends”. You did not answer those questions.

I wrote to you further at 3.29am on 5 August.

During 5 August, and whilst I was already travelling to my holiday destination, all the postings on the thread on CMOMM to which your client objected were removed from public view by the owner and adminstrators of that forum, thus fulfilling to the letter your demand at 4.16pm the previous day that “Accordingly, should you now fail to remove the defamatory postings, together with the new notice…”

Yet despite Mr Smethurst’s demands being fulfilled in full, he issued proceedings on Tuesday 9 August, knowing fine well that I would not be able to respond to that summons until my return from holiday on 15 August.

Moreover, in your attempt to justify Mr Smethurst issuing that summons, you stated in your letter of 9 August that “our attention has been drawn to further postings made by you in May 2011”. You didn’t say what those were, but in Mr Smethurst’s Claim, he says that he was libelled by words on the threads:

https://jillhavern.forumotion.net/t2432-mf-investigation-conference-cheshire-and-lancashire and
https://jillhavern.forumotion.net/t2456-what-goes-on-at-the-elephant-castle

You do not say, neither in your letter, nor in Mr Smethurst’s Claim, what actual words on those two threads have allegedly defamed him. The first time I knew that Mr Smethurst was complaining about postings on those two threads was on opening my post on return from holiday on 15 August. I took immediate action together with the administrative team on CMOMM to ensure that those threads were immediately removed from public view until you clarified what was allegedly libellous in them. Mr Smethurst gave me no prior warning whatsoever that he considered anything on those threads to be defamatory.

The Pre-Action Protocol on Defamation

I will now review your client’s conduct of the litigation in this matter against the requirements of the Ministry of Justice’s Defamation Pre-Action Protocol, which is designed to avoid the issue of a summons wherever possible. I quote from its relevant paragraphs as set out on the Ministry of Justice website:

Para 1.3 “This Protocol is intended to encourage exchange of information between parties at an early stage …[so that] parties…can explore the early and appropriate resolution of that claim”.

Comment: Within 24 hours of being notified of your client’s concerns, the material to which he objected was removed from the internet forum, just as he requested. However, four days later, and knowing fine well that I was away on holiday, he issued proceedings on the basis of alleged defamatory comments on two other threads of which I had had no advance notice whatsoever.

Para 1.4 “In particular, time is always ‘of the essence’ in defamation claims…almost invariably, the Claimant will be seeking an immediate correction and/or apology…”

Comment: Your client knew in May about the references on the thread in question to depraved comments made by his ‘Facebook Friends’, yet he took no action until 4 August.

Paras 2, 3.2 and 3.3 “The Protocol aims to encourage both parties to disclose sufficient information to enable each to understand each other’s case…the Letter of Claim should include…the words complained of…factual inaccuracies or unsupportable comment within the words complained of…the Claimant should give a sufficient explanation to enable the Defendant to appreciate why the words are inaccurate or unsupportable…It is desirable for the Claimant to identify in the Letter of Claim the meaning(s) s/he attributes to the words complained of”.

Comment: Here, with all due respect, your client has failed in many respects to adhere to the Protocol. I will take each of your three letters in turn:

Letter 1: I will ignore your comments about alleged breach of privacy which are not germane to the matter of Mr Smethurst’s current Claim. You claim, without referring to any actual words, that “Readers should have understood your postings to mean that our client is or is to be suspected of being a paedophile, that he associates with another allegedly known paedophile friend to whom you refer as ‘Greg the Groomer’, and that he somehow condones or sympathises with the actions of paedophiles”. You then follow this up by describing these as ‘grotesque allegations’ when in fact on the face of the actual words I have used, I have made no such allegations. On the contrary, I took the trouble, before posting any of the material from his Facebook Friends, to write: “Lest it be thought by anyone that I am making any accusation against Edward Smethurst, I am not. I am merely giving out publicly-available information about people he was linked to on Facebook”. I dispute that anything I said on that thread amounts to an allegation against Mr Smethurst and therefore I am inclined to defend his claim.

Should he wish to proceed with his claim, please specify what particular words are said to defame him and also now comply with the requirement onthe Claimant in the Protocol to “give a sufficient explanation to enable the Defendant to appreciate why the words are inaccurate or unsupportable”.

Turning at this stage to the three demands in your letter:

I have complied with Demand 1 by agreeing to undertake to take no more photographs of your client’s home, family or business premises, and not to procure anyone else to do so.

I have complied in full with Demand 2. The postings required to be removed in your letter of 4 August were removed the following day. Mr Smethurst then, very prematurely I have to say, began proceedings based on alleged libels on two other threads. As soon as I became aware of his Defamation Claim and the two new threads he was complaining about, i.e. on Monday morning this week, those threads were also removed from public view in line with his demands.

In relation to Demand 3, there is a problem in relation to the Protocol, in that you refer to ‘these alleagtions’ without saying what these allegations are. I have not made any allegations; if you say that I have, you will have to particularise what words of mine are said to be libellous - and why, which you have not done despite the requirements of the Protocol.

Letter 2: This required me to ‘remove the defamatory postings’. This I did the following day, yet your client still issued a Defamation Claim, justifying this by claiming to have suddenly discovered new libels which he had not brought to my attention before issuing his claim. You clearly admitted in your letter of 9 August: “…the administrators of the ‘Jill Havern Forum’ have now suspended access to the thread”.

Letter 3: You wrote: “…our client’s attention has been drawn to further postings made by you in May 2011 which also defame him”. You more than most Solicitors must know about the requirements of the Pre-Action Protocol. Mr Smethurst is himself a Solicitor. Yet not only do you not bring these alleged libels to my attention before issuing a Claim, contrary to the Protocol, you also fail, again contrary to the Protocol, to specify what words on the two threads referred to in the Claim are alleged to be libellous – and, if so, how they are libellous. The Protocol requirement is that “…both parties disclose sufficient information to enable each to understand each other’s case…the Letter of Claim should include…the words complained of…factual inaccuracies or unsupportable comment within the words complained of…the Claimant should give a sufficient explanation to enable the Defendant to appreciate why the words are inaccurate or unsupportable…It is desirable for the Claimant to identify in the Letter of Claim the meaning(s) s/he attributes to the words complained of”. You have done none of this in relation to the issue of the Claim, either before issuing the Claim, or on the Claim form itself.

Should this matter proceed, especially in regard to what the Court may conclude was a premature and unduly hasty issue of the Claim, I shall ask the Judge to take into account your client’s conduct in relation to costs. Please see especially Para 3.7 of the Protocol.

Para 3.5 “The Defendant’s Response should include…whether or to what extent the Claimant’s claim is accepted, whether more information is required or whether it is rejected…if the claim is accepted in whole or part…what remedies the Defendant is willing to offer…if more information is required, the Defendant should specify precisely what information is needed…and why…if the claim is rejected, then the Defendant should explain the reasons why…including a sufficient indication of any facts on which the Defendant is likely to rely ”.

Comment: Dealing as helpfully as I can with the requirements of Paragraph 3.5, these are the factual matters which incline me to reject Mr Smethurst’s claim:

1. He clearly delayed, for whatever reason, bringing his concerns to my attention.

2. I have reported factual information about some of the activities of his ‘Facebook Friends’. I do not think he disputes this information; if he does do, you do not say so. Besides, I have not revealed all of their comments.

3. I have made repeated very clear statements on the threads in question that I am not accusing or alleging anything against Mr Smethurst.

4. My record of swift action to make it clear that there was no allegation against Mr Smethurst, and the swift removal of the material from public view on the two occasions (4 August and 15 August) when I was asked to remove it, demonstrate my willingness to accommodate Mr Smethurst’s demands. The Court may well consider that if Mr Smethurst had notified me about the problems he claimed existed on the other two threads that there would therefore have been no need for him to issue his Claim.

5. The Facebook revelations may be embarrassing to Mr Smethurst, just for example as the revelations of Max Mosley being involved in sado-masochism for 40 years embarrassed him. That does not make the revelations libellous. Mr Smethurst had the opportunity back in May to ask for the postings to be removed. He did not do so. He might for example deny that he knows these ‘Friends’. He has not done so. He might deny that he was aware of their ‘interests’ - clearly depraved in the case of Ben Murphy. Had he done so, I would have been happy to remove the postings in question, or add his explanation. He might even have reacted by saying: “Thank you Mr Bennett, I am grateful to you for exposing the conversations and interests of my ‘Facebook Friends’, I am very grateful to you for bringing this matter to my attention.

Paras 3.7 to 3.9: Alternative Dispute Resolution

I am willing to consider mediation.

Proposals for Settlement of the Dispute

[Withheld for legal reasons]

Further information about the conversations between Facebook friends of Edward Smethurst

I hold further information about the conversations amongst Edward Smethurst’s Facebook friends which I have withheld from publishing. It is of a graphic nature. Given (a) Mr Smethurst’s place in society, to which you refer in your first letter, (b) the fact that he has been made aware of his Facebook friends’ interests and conversations and (c) that he may well have limited information on the conversations and interests of his friends, he may wish to be seen to be doing the right thing. He may wish to report these matters to the relevant authorities. Clearly for example bestiality is a criminal offence, and if the police are not already investigating the members of the ‘Bestiality’ Facebook group to which Ben Murphy belongs or belonged, then they probably ought to be. I would be happy to supply any information that I do have, confidentially, to your client.

Masonic Judges

I am sure that both yourselves and your client will wish to see that if this matter is brought to trial, justice is both done and seen to be done. Mr Smethurst is a prominent Freemason and actively promotes his work for a Masonic children’s charity. Please indicate whether you will support an application I will make, should matters proceed, as to whether or not Master Eyre or Master McCloud are Freemasons, and if Master McCloud reveals himself to be a Freemason, would your client support my application that he be stood down from the case?

[REST OF LETTER snipped for legal reasons]



Yours faithfully

Tony Bennett

Is it wise to show links to a innocent persons Facebook? Is it not going to get yourself in trouble again Tony as it is linked to Edward Smethurst. Personally I feel uncomfortable with it there.

Dr_Evil wrote:

Tony Bennett wrote:It may not all be plain sailing for Mr Edward Smethurst in his Libel Claim, which by the way cost a one-off fee of £1,150 for him to issue...

Is it wise to show links to a innocent persons Facebook? Is it not going to get yourself in trouble again Tony as it is linked to Edward Smethurst. Personally I feel uncomfortable with it there.

I think on balance you're right, I'm concerned for the young lady's welfare, but I've removed all the references to that matter on this thread, thank you for raising this and the manner in which you did so.

Tony,

shortly before Christmas I asked if you could send me the account number from Gioncarlo which you did, unfortunately my bank didn´t accept the IBAN or whatever, my wish to transfer money to his account hasn´t changed but when I see what is now happening I would very much like to assist you in your defence, so if you could per PM give me your fund account numbers I will transfer money, there are no strings attached but I would appreciate if you could split the money as you think suitable

Tony Bennett wrote:

Dr_Evil wrote:

Tony Bennett wrote:It may not all be plain sailing for Mr Edward Smethurst in his Libel Claim, which by the way cost a one-off fee of £1,150 for him to issue...

Is it wise to show links to a innocent persons Facebook? Is it not going to get yourself in trouble again Tony as it is linked to Edward Smethurst. Personally I feel uncomfortable with it there.

I think on balance you're right, I'm concerned for the young lady's welfare, but I've removed all the references to that matter on this thread, thank you for raising this and the manner in which you did so.

My pleasure

Not being a great legal eagle can you correct me please about this. Did Carter Ruck ask you to remove the posts or the offending bits of the posts, if the first bit are you not compling by just moving the posts?

Tony Bennett wrote:It may not all be plain sailing for Mr Edward Smethurst in his Libel Claim, which by the way cost a one-off fee of £1,150 for him to issue.

Apart from being gobsmacked that he has the right (or thinks he does) to issue this claim I am surprised that the price is so low (relatively speaking) to be able to cause such havoc and distress.

Dr_Evil wrote:Not being a great legal eagle can you correct me please about this. Did Carter Ruck ask you to remove the posts or the offending bits of the posts, if the first bit are you not compling by just moving the posts?

This is a bit complex, but here we go.

The first letter re Smethurst from Carter-Ruck asked me to:

1. 'use your best endeavours...to secure the removal of all the postings you made on the above discussion forum about our client', and

2. to 'correct these allegations'.

In relation to point 1, that was contrary to the rest of their letter which merely objected to specific postings about Facebook between 9 and 12 May 2010. In relation to point 2, that was also a problem because I hadn't made any alleagtions, indeed without repeating my actual words, I made explicit and bold statements on the forum stating that no-one should draw any adverse conclusions against Mr Smethurst from the actions of his Facebook friends. I made some new statements on that thread which I thought would satisfy them, but then came...

Letter No. 2, which said:

'you should now remove the defamatory postings...'

So that was back to just removing about four posts made between 9 and 12 May. As you know, the following day, Admin closed the entire thread to public view, thus fully satisfying Carter-Ruck's demands.

However, as we now know, Smethurst then issued a summons based on two further threads about which he had not complained before.

Most strangely, the new letter from Carter Ruck dated 9 August said: "our client's attention has been drawn to further postings made by you in may 2011 which also defame him" but didn't actually ask me to remove them. It all looked like the whole business of issing the writ on 9 August was done in great haste. Admin removed all of those other two threads as soon as I told them about the letter. The Claim Form demanded damages of up to £100,000 for libelling him on all three threads, but the accompanying letter from carter-Ruck didn't ask me to remove them.

I should also explain the term 'use your best endeavours'. This is because Smethurst and Carter-Ruck recognised that I do not have ultimate control over the contents of a forum, only the forum-owner does. It is possible for a situation to arise where a poster wants his posts removed but the forum-owner wants them to stand. Or vice-versa.

If I may refer to the new Carter-Ruck demands on behalf of the McCanns, they demand removal of 24 articles because they believe I have direct control over the contents, while so far as this forum is concerned, I am only required to use my 'best endeavours' to remove the 42 postings (out of my 3,502) to which the McCanns object.

Considering Carter Ruck are supposed to be experts in libel and are clearly abusing their position to get you into court, under what seems like false pretences, can they not be reported to the Law Society for investigation?

happychick wrote:Considering Carter Ruck are supposed to be experts in libel and are clearly abusing their position to get you into court, under what seems like false pretences, can they not be reported to the Law Society for investigation?

They actually very rarely get into court. The threat of the likely costs is usually sufficient to terrify the respondent into doing whatever they say, including paying out-of-court settlements. That is why they can describe themselves as the 'most feared' libel lawyers, rather than the 'most sucessful libel litigants'.
It may be bluff, but who has the resources to call it ?

And any report to the Law Society would itself be deemed to be a libel - by C-R of course !
Remember that they have objected to a letter sent by TB to the SIO in the case, not as incorrect, or wrong, or perjury, but as 'defamatory'.
I intend to bring this strange position to the attention of DCI Redwood. I am not sure he will be pleased.

The sooner we have libel reform in this dreadful country the better.
We have to fall into line with other European countries so that people like Carter Ruck can be taken on by anyone they go after.
I strongly believe that Tony Bennett's recent application to the European Court on the subject will be successful.

If you recall in the recent past in the UK we had the Super injunction explosion over the last few years. These (like the use of Carter Ruck) are the exclusive tools of the rich and intended to stop truths (not always but usually) to be getting out to the public at large). Both these "tools" should be banned in my opinion as free speech is (or should be) sacrosanct in the UK and bullies, liars and cheats shouldn't be allowed to prosper.

Unfortunately I can't see those who have the funds (or the UK legal system) stopping the use of either method any time soon even though they are not equitable.

http://libelreform.org/

From the libelreform.org website

"To Index on Censorship and English PEN it has become increasingly clear that English libel law and the use of ‘super-injunctions’ are having a profoundly negative impact on freedom of expression, both in the UK and abroad. Writers such as Simon Singh, and respected current affairs programme Newsnight, have found themselves facing defamation suits, whilst human rights campaigners are often forced to edit and retract articles in the face of potential libel action.

We need to persuade politicians from all the political parties to commit to reform of our unjust libel laws."

Signed petition and put a link on twitter too!

I signed it ages ago and also receive regular updates.

PeterMac wrote:

happychick wrote:Considering Carter Ruck are supposed to be experts in libel and are clearly abusing their position to get you into court, under what seems like false pretences, can they not be reported to the Law Society for investigation?

They actually very rarely get into court. The threat of the likely costs is usually sufficient to terrify the respondent into doing whatever they say, including paying out-of-court settlements. That is why they can describe themselves as the 'most feared' libel lawyers, rather than the 'most sucessful libel litigants'.
It may be bluff, but who has the resources to call it ?

And any report to the Law Society would itself be deemed to be a libel - by C-R of course !
Remember that they have objected to a letter sent by TB to the SIO in the case, not as incorrect, or wrong, or perjury, but as 'defamatory'.
I intend to bring this strange position to the attention of DCI Redwood. I am not sure he will be pleased.

Is "SIO" Senior Investigating Officer at SY? Well, in that case they are still scrutinising papers and so it shouldnt be down to mccanns and their bully lawyer CR to say it's defamatory surely?

Yeah, I bet DCI Redwood will be somewhat amazed the mccanns and their paid servants are intimidating TB when the case is still under review.