Isabel Hudson's Affidavit

Xavie, I have a few questions for you.

I detect from your posts that all the judge will be interested in, is the signed undertaking and whether it has been breached or not?

Now let me ask you this. If an undertaking was written, how can I say this, in such a way that it breaches the law in some small way, something that can be contested during this future trial, do you think that the whole case against TB could be thrown out on a technicality before that date? Remember what happened to Paul Burrell?

Do you think that maybe CR always knew this, a kind of get-out-clause that they knew would be used, to prevent a full blown trial?

Do you know what was in the original undertaking?

Me wrote:

Xavier wrote:Stella - I fear the whys and wherefores of Amarals conviction will be of little interest to the court. If anyone tries to dispute Hudsons comment that he is discredited, then it is only the verdict of the Portuguese Court that will be taken into account.

Which is why the emphasis from TB's perspective should centre both on the investigation team as a whole and his successor's similar findings.

Plus of course the validation from the Portugese appeal judges on Amaral's theories which TB takes a lot of his material from.

You need however to consider what this case is about.

It is not about whether or not GM and KM are innocent or guilty. They are not the ones on trial, and any attempt to turn this into some sort of trial of the McCanns will be seen as grandstanding.

It is about whether TB has breached the undertaking he gave to the high court. And in particular
On 27 August 2009, Carter-Ruck sent legal letters to myself and our
former Chairman Debbie Butler making the following demands:
1) the permanent suspension of our website
2) to cease selling and distributing ‘60 Reasons’
3) to cease distributing ‘10 Reasons’
4) to refrain from alleging that the McCanns knew what had really
happened to Madeleine
5) to use our best endeavours to remove from the internet any
posts where we had accused the McCanns of knowing what
really happened to Madeleine.
In particular 4 and 5.
This is what TB will need to provide a defence to.
From the courts point of view, and in law, the McCanns are innocent. Period. The conclusions reached by a police investigation, or written in a book, are irrelevant to this.
TB has continued to alledge that the McCanns know what really happened to Madeleine, and that they are guilty of a criminal offence.
CR are arguing that he has therefore breached the undertaking that he gave to the high court. This is a something that the court will take very seriously.
This is why emotional arguments about tavares statements, Amarals book and whether Hudson has been libelling Amaral by referring to him as discredited will not work.
TB will need to present a defence to CRs actual complaint.
Stella - I have just seen you post. I think it is mostly answered above. I hear what you say about drafting errors - I did see notes on the oroginal undertaking and it is to my mind unlikely that there are any technical grounds for overturning it.

Stella wrote:Xavie, I have a few questions for you.

I detect from your posts that all the judge will be interested in, is the signed undertaking and whether it has been breached or not?

Now let me ask you this. If an undertaking was written, how can I say this, in such a way that it breaches the law in some small way, something that can be contested during this future trial, do you think that the whole case against TB could be thrown out on a technicality before that date? Remember what happened to Paul Burrell?

Do you think that maybe CR always knew this, a kind of get-out-clause that they knew would be used, to prevent a full blown trial?

Do you know what was in the original undertaking?

I'm not a lawyer but logic dictates that the emphasis will be on whether the undertakings will have been breached.

TB has to defend this on the basis of either the undertakings being unfair against him or that there was a technicality in them that he can use to his advantage. Coupled with that of course he needs to use the evidence previously suggested in order to add validation to his posts and debunk the claims made by CR.

I would suggest he can't simply defend this on the basis of the Portugese evidence and theories solely. The issue of the undertaking has to be resolved in TB's favour before he can start tearing apart the claims regarding evidence, and the discreditation of Amaral.

Speaking honestly i think TB should have got that undertaking thrown out BEFORE he made further posts. He's left himself open.

Xavier wrote:

Me wrote:

Xavier wrote:Stella - I fear the whys and wherefores of Amarals conviction will be of little interest to the court. If anyone tries to dispute Hudsons comment that he is discredited, then it is only the verdict of the Portuguese Court that will be taken into account.

Which is why the emphasis from TB's perspective should centre both on the investigation team as a whole and his successor's similar findings.

Plus of course the validation from the Portugese appeal judges on Amaral's theories which TB takes a lot of his material from.

You need however to consider what this case is about.

It is not about whether or not GM and KM are innocent or guilty. They are not the ones on trial, and any attempt to turn this into some sort of trial of the McCanns will be seen as grandstanding.

It is about whether TB has breached the undertaking he gave to the high court. And in particular
On 27 August 2009, Carter-Ruck sent legal letters to myself and our
former Chairman Debbie Butler making the following demands:
1) the permanent suspension of our website
2) to cease selling and distributing ‘60 Reasons’
3) to cease distributing ‘10 Reasons’
4) to refrain from alleging that the McCanns knew what had really
happened to Madeleine
5) to use our best endeavours to remove from the internet any
posts where we had accused the McCanns of knowing what
really happened to Madeleine.
In particular 4 and 5.
This is what TB will need to provide a defence to.
From the courts point of view, and in law, the McCanns are innocent. Period. The conclusions reached by a police investigation, or written in a book, are irrelevant to this.
TB has continued to alledge that the McCanns know what really happened to Madeleine, and that they are guilty of a criminal offence.
CR are arguing that he has therefore breached the undertaking that he gave to the high court. This is a something that the court will take very seriously.
This is why emotional arguments about tavares statements, Amarals book and whether Hudson has been libelling Amaral by referring to him as discredited will not work.
TB will need to present a defence to CRs actual complaint.
Stella - I have just seen you post. I think it is mostly answered above. I hear what you say about drafting errors - I did see notes on the oroginal undertaking and it is to my mind unlikely that there are any technical grounds for overturning it.

Xavier

I posted my last post around the same time as you posted this one.

I wanted to add that further to my post i agree with you that he has to overcome the binds of that undertaking before he can then defend the other allegations on his posts surrounding Amaral and the investigation.

That's his big problem. The undertaking appears to be fairly all encompassing in relation to his claims that the McCann's knew what really happend to Maddie.

Where Tony has gone wrong is in stating that the McCann's KNEW what really happened to Maddie. How can he prove that at this stage? There simply isn't enough evdience to state that with certainty.

Instead he should have concentrated simply on the information in the files and cast doubts on their stories rather than claiming the McCann's really know what happened.

We may all think that but to state it on record when there isn't the clear evidence to back it up was and remains a huge risk and gamble.

Me wrote:TB has to defend this on the basis of either the undertakings being unfair against him or that there was a technicality in them that he can use to his advantage.

"Unfair against him", precisely !!! if this has happened, it is the McCann's who will be footing the bill.

We have seen extracts of a letter from CR to TB, but how do we know that this was the final draft, the actual one signed by TB and he received a copy of?

As for those initial undertakings.

4) to refrain from alleging that the McCanns knew what had really
happened to Madeleine
5) to use our best endeavours to remove from the internet any
posts where we had accused the McCanns of knowing what
really happened to Madeleine.


As far as I know TB has only ever discussed theories, which everyone in this country is legally allowed to do. I cannot remember him ever claiming that the McCann's knew what happened.

Stella wrote:

Me wrote:TB has to defend this on the basis of either the undertakings being unfair against him or that there was a technicality in them that he can use to his advantage.

"Unfair against him", precisely !!! if this has happened, it is the McCann's who will be footing the bill.

We have seen extracts of a letter from CR to TB, but how do we know that this was the final draft, the actual one signed by TB and he received a copy of?

As for those initial undertakings.

4) to refrain from alleging that the McCanns knew what had really
happened to Madeleine
5) to use our best endeavours to remove from the internet any
posts where we had accused the McCanns of knowing what
really happened to Madeleine.


As far as I know TB has only ever discussed theories, which everyone in this country is legally allowed to do. I cannot remember him ever claiming that the McCann's knew what happened.

I guess that the case will rest upon the definition of "alleging that the McCann's knew what really happend to Madeleine" in context against the PJ / Amaral's theories which were subsequently validated in a Portugese court and TB's interpretation and comment on those theories.

For example could TB claim that the posts CR object to are simply repitions of court validated theories from the offical investigation, and therefore do not constitute reckless, willful or baseless allegations in breach of his undertaking? Could he claim he's not making unfounded allegations, simply repeating what the investigation and Amaral have stated which has, in Amaral's case, been validated by a court in Portugal.

Exactly.

[quote Me]

For example could TB claim that the posts CR object to are simply repitions of court validated theories from the offical investigation, and therefore do not constitute reckless, willful or baseless allegations in breach of his undertaking? Could he claim he's not making unfounded allegations, simply repeating what the investigation and Amaral have stated which has, in Amaral's case, been validated by a court in Portugal.

Me wrote:

Stella wrote:

Me wrote:TB has to defend this on the basis of either the undertakings being unfair against him or that there was a technicality in them that he can use to his advantage.

"Unfair against him", precisely !!! if this has happened, it is the McCann's who will be footing the bill.

We have seen extracts of a letter from CR to TB, but how do we know that this was the final draft, the actual one signed by TB and he received a copy of?

As for those initial undertakings.

4) to refrain from alleging that the McCanns knew what had really
happened to Madeleine
5) to use our best endeavours to remove from the internet any
posts where we had accused the McCanns of knowing what
really happened to Madeleine.


As far as I know TB has only ever discussed theories, which everyone in this country is legally allowed to do. I cannot remember him ever claiming that the McCann's knew what happened.

I guess that the case will rest upon the definition of "alleging that the McCann's knew what really happend to Madeleine" in context against the PJ / Amaral's theories which were subsequently validated in a Portugese court and TB's interpretation and comment on those theories.

For example could TB claim that the posts CR object to are simply repitions of court validated theories from the offical investigation, and therefore do not constitute reckless, willful or baseless allegations in breach of his undertaking? Could he claim he's not making unfounded allegations, simply repeating what the investigation and Amaral have stated which has, in Amaral's case, been validated by a court in Portugal.

I agree with your comment that TB might have been wise to apply to the court to have the undertaking set aside prior to resuming posting. However, this would have attracted the attention of CR and would be seen to breach the original agremeent. Which if my memory serves me correctly was that the McCanns, via CR, had issued defamation proceedings. Having taken advice from Kirwans, that he was unlikey to win in court and could have been financially devastating. He was offered a deal whereby the defamation action would be dropped provided that he signed an undertaking.

It is pretty clear that TB has breached the undertaking and this places him a weak position.

Arguing validation of Amarals thesis by a Portuguese court could work if the action were in Portugal. But not certain, as the judgement seemed to turn more on Amarals right of expression and the McCanns rights to privacy having been forfeit by their relationship with the press than on validation of Amarals thesis.

UK law is rather more plaintiff friendly, and given that the McCanns are innocent in the eyes of the law, and have been accused of committing a crime. The onus will be on TB to justify his breach of the undertaking he signed.

Just a further thought. Clearly it's upto CR to produce evidence of these alleged breaches. Have these been published by TB?

It would be interesting to see which posts / articles they are citing and why. Having just read the August 12th CR letter they appear to be clutching at straws with their evidence of alleged breaches they produced in that letter, where on one occasion they falsely attributed general comments made as a direct claim that TB stated the McCann's caused the death of Maddie.