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Post by aquila on 12.12.11 23:07

[quote="Xavier"]Aquila. NIce idea. But the concept of punitive damages does not exist in Portugal. Damages and costs are limited to actual pecuniary loss, and in most cases each party will meet their own costs.

Similarly Amaral does not face financial ruin. If the McCanns were to win their case, in all probability each party would meet their own costs. Amaral et al may find that the concept of "unjust enrichment" is invoked, which involves returning or paying over "what he unjustly earned" (Article 473 (1) of the Civil Code). Therefore he and his co defendants would be in effect in the same position as they would have been had a libel not been committed, but no more.[/quot

Thank you Xavier.

Will the McCanns costs whatever the outcome be paid from their private purse? or is the McFund paying for that? Will the costs be published?
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Post by Xavier on 12.12.11 23:09

@pauline wrote:Xavier, is the Feb court case the end of the line? or can there be more appeals?

if the McCanns lose for the third time in a row, they must have substantial legal bills to pay. (Uncle) Brian Kennedy says in a video in 2007 that most of the funds are likely to go on legal expenses. How true! the directors report in the audited accounts refers to the case against Sr Amaral and its quite clear to me that the Fund is paying for this case.

the McCanns will also have to pay Sr Amaral's costs and presumably some sort of damages (even if not punitive)

Candyfloss is right. There are possibilities of appealing so no final verdict in the forseeable future!
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Post by aquila on 12.12.11 23:13

@Xavier wrote:Aquila. NIce idea. But the concept of punitive damages does not exist in Portugal. Damages and costs are limited to actual pecuniary loss, and in most cases each party will meet their own costs.

Similarly Amaral does not face financial ruin. If the McCanns were to win their case, in all probability each party would meet their own costs. Amaral et al may find that the concept of "unjust enrichment" is invoked, which involves returning or paying over "what he unjustly earned" (Article 473 (1) of the Civil Code). Therefore he and his co defendants would be in effect in the same position as they would have been had a libel not been committed, but no more.

How was the reported 1.2m euros arrived at?
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Post by Gillyspot on 12.12.11 23:28

@Xavier wrote:
@pauline wrote:Xavier, is the Feb court case the end of the line? or can there be more appeals?

if the McCanns lose for the third time in a row, they must have substantial legal bills to pay. (Uncle) Brian Kennedy says in a video in 2007 that most of the funds are likely to go on legal expenses. How true! the directors report in the audited accounts refers to the case against Sr Amaral and its quite clear to me that the Fund is paying for this case.

the McCanns will also have to pay Sr Amaral's costs and presumably some sort of damages (even if not punitive)

Candyfloss is right. There are possibilities of appealing so no final verdict in the forseeable future!

Xavier are you comfortable with the McCanns using donations to the fund supposedly for searching for Madeleine for this libel trial as they did with the book injunction?

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Post by aquila on 12.12.11 23:52

@Gillyspot wrote:
@Xavier wrote:
@pauline wrote:Xavier, is the Feb court case the end of the line? or can there be more appeals?

if the McCanns lose for the third time in a row, they must have substantial legal bills to pay. (Uncle) Brian Kennedy says in a video in 2007 that most of the funds are likely to go on legal expenses. How true! the directors report in the audited accounts refers to the case against Sr Amaral and its quite clear to me that the Fund is paying for this case.

the McCanns will also have to pay Sr Amaral's costs and presumably some sort of damages (even if not punitive)

Candyfloss is right. There are possibilities of appealing so no final verdict in the forseeable future!

Xavier are you comfortable with the McCanns using donations to the fund supposedly for searching for Madeleine for this libel trial as they did with the book injunction?

Couldn't have put it better. McCanns Get Court Date For £1m Cop Lawsuit - Page 2 3711883763
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Post by aquila on 13.12.11 0:02

@Gillyspot wrote:
@Xavier wrote:
@pauline wrote:Xavier, is the Feb court case the end of the line? or can there be more appeals?

if the McCanns lose for the third time in a row, they must have substantial legal bills to pay. (Uncle) Brian Kennedy says in a video in 2007 that most of the funds are likely to go on legal expenses. How true! the directors report in the audited accounts refers to the case against Sr Amaral and its quite clear to me that the Fund is paying for this case.

the McCanns will also have to pay Sr Amaral's costs and presumably some sort of damages (even if not punitive)

Candyfloss is right. There are possibilities of appealing so no final verdict in the forseeable future!

Xavier are you comfortable with the McCanns using donations to the fund supposedly for searching for Madeleine for this libel trial as they did with the book injunction?

Xavier, do you think it is moral to spend public donations and not report in precise details of your reason for that and the exact costs regardless of the legal financial requirement to do so?
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Post by aquila on 13.12.11 0:09

I, and I believe the majority of people on this site care for Madeleine. Madeleine isn't a trademark or a business. I can find little to justify her parents' behaviour in all of this. I've recently read GM's blogs up to day 50. I wanted to vomit. It's good to go back and review things.
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Post by scotclogs on 13.12.11 4:19

@Me wrote:
@scotclogs wrote: what McCanns describe Amaral as 'self-obsessed' wft pot - Kettle - black WHAT A CHEEK they have
daft1 daft1

Self-obsessed?? Well if the gruesome twosome had tried to break me from my wife, my family, my job, my right to free speech, my right to make a living and to destroy me financially, for doing nothing more than my job and reporting on the conclusions and summaries I came to in carrying out my occupation, I think I’d be a bit self-obsessed as well. And with good reason.

How about the obsession the Team themselves have with Amaral? They are the ones who have sought not to rebut his allegations using facts and evidence. They are the ones who have misappropriated monies donated by the public to find a missing child to commence legal action (that they would no doubt have been unable to afford without the fund behind them) in order to prevent free speech, the reporting of the findings of the official investigation and for Amaral to defend the scurrilous allegations levelled against him in the Uk media, fed by the Team and their cronies.

All so they can keep him and his theories quiet and cynically massage the narrative so that only their version of events is allowed to be discussed and debated.

Now that’s not only obsession, but far worse, obsession purely out of cynical self-interest and desperate self-preservation.




Well said Me clapping1 clapping1
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Post by scotclogs on 13.12.11 4:41

@aquila wrote:I, and I believe the majority of people on this site care for Madeleine. Madeleine isn't a trademark or a business. I can find little to justify her parents' behaviour in all of this. I've recently read GM's blogs up to day 50. I wanted to vomit. It's good to go back and review things.

I was thinking to TRY and read GM blogs again, first time I did not get as far as day 50 I had to give up :puke: it is so SELF-OBSESSED nothing much about Maddie the poor we soul 😢
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Post by Xavier on 13.12.11 6:51

Gillyspot and Aquila. You seem to think I am an apologist for the McCanns. It would be nice if you could phrase your questions is a slightly less agressive and peremptory way.

I am simply trying to bring a little informed legal perspective to this forum. Perhaps from your tone you would rather I didn't?
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Post by pauline on 13.12.11 9:07

More appeals!!!!!

Surely at some point there has to be a final showdown, though obviously it isn't the February hearing.

Whatever we might think about the Fund paying the legal bills, the company is set up in such a way as to be able to make any payments the Board decides on behalf of the McCann family.

The 'justification' for paying these legal bills is that Sr Amaral's book has adversely affected the search for Madeleine. Take him out of the equation and you can search away!
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Post by Xavier on 13.12.11 9:11

@pauline wrote:More appeals!!!!!

Surely at some point there has to be a final showdown, though obviously it isn't the February hearing.

Whatever we might think about the Fund paying the legal bills, the company is set up in such a way as to be able to make any payments the Board decides on behalf of the McCann family.

The 'justification' for paying these legal bills is that Sr Amaral's book has adversely affected the search for Madeleine. Take him out of the equation and you can search away!

Yes Pauline. MOre appeals. It depends on how far each party wishes to take it.

There is quite a lot at stake, and in the end will probably end up with negotiations and a compromise between the respective legal teams. Decisive court battles make good TV, but the reality tends to be more boring.
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Post by pauline on 13.12.11 9:20

Xavier, do you think the McCanns do 'compromise' ?

Obviously negotiation is the logical way to sort this out. Amaral has won the last two hearings and this Feb hearing seems to me shouldn't be happening.

My feeling is that the McCanns will keep appealing as long as the system permits. Remember the legal costs are not being paid by them personally.

Will the Feb court give an immediate ruling or will we have to wait?
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Post by tigger on 13.12.11 9:29

@Xavier wrote:Gillyspot and Aquila. You seem to think I am an apologist for the McCanns. It would be nice if you could phrase your questions is a slightly less agressive and peremptory way.

I am simply trying to bring a little informed legal perspective to this forum. Perhaps from your tone you would rather I didn't?

I read your posts with interest, Xavier, I don't think either Gillyspot or Aquila think you are an apologist. Imo they are reacting to your statement with new questions. Perhaps you are really necessary to a forum such as this, because your neutrality sharpens and defines our questions. By now the whole case is so convoluted that it is hard not to wander off topic or simply misunderstand actions taken by the courts.
But I cannot see any aggression in their questions, in fact they are asking your opinion which can only lead to healthy discussion. Don't forget that many on this forum have been watching in disbelief as the laws of two countries were blatantly ignored for over four years now!

To repeat, I think we need a cautious voice like yours. But the McCanns are all grown up so they are responsible for their actions. Their pursuit of Amaral is nothing short of vindictive. As one poster recently researched the fund's finances, it seems the fund primarily makes money from legal actions. Besides, the 3.4 million which is being spent on reviewing the case must be a first in legal history. It also means the fund should spend all their resources to find Madeleine, apart from a Facebook page, little seems to be happening in that direction.


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Post by aquila on 13.12.11 11:25

@tigger wrote:
@Xavier wrote:Gillyspot and Aquila. You seem to think I am an apologist for the McCanns. It would be nice if you could phrase your questions is a slightly less agressive and peremptory way.

I am simply trying to bring a little informed legal perspective to this forum. Perhaps from your tone you would rather I didn't?

I read your posts with interest, Xavier, I don't think either Gillyspot or Aquila think you are an apologist. Imo they are reacting to your statement with new questions. Perhaps you are really necessary to a forum such as this, because your neutrality sharpens and defines our questions. By now the whole case is so convoluted that it is hard not to wander off topic or simply misunderstand actions taken by the courts.
But I cannot see any aggression in their questions, in fact they are asking your opinion which can only lead to healthy discussion. Don't forget that many on this forum have been watching in disbelief as the laws of two countries were blatantly ignored for over four years now!

To repeat, I think we need a cautious voice like yours. But the McCanns are all grown up so they are responsible for their actions. Their pursuit of Amaral is nothing short of vindictive. As one poster recently researched the fund's finances, it seems the fund primarily makes money from legal actions. Besides, the 3.4 million which is being spent on reviewing the case must be a first in legal history. It also means the fund should spend all their resources to find Madeleine, apart from a Facebook page, little seems to be happening in that direction.


Thank you tigger. That's exactly what I think.
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Post by aquila on 14.12.11 0:53

Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.
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Post by aiyoyo on 14.12.11 5:47

@tigger wrote:
@Xavier wrote:Gillyspot and Aquila. You seem to think I am an apologist for the McCanns. It would be nice if you could phrase your questions is a slightly less agressive and peremptory way.

I am simply trying to bring a little informed legal perspective to this forum. Perhaps from your tone you would rather I didn't?

I read your posts with interest, Xavier, I don't think either Gillyspot or Aquila think you are an apologist. Imo they are reacting to your statement with new questions. Perhaps you are really necessary to a forum such as this, because your neutrality sharpens and defines our questions. By now the whole case is so convoluted that it is hard not to wander off topic or simply misunderstand actions taken by the courts.
But I cannot see any aggression in their questions, in fact they are asking your opinion which can only lead to healthy discussion. Don't forget that many on this forum have been watching in disbelief as the laws of two countries were blatantly ignored for over four years now!

I second that.
Me, too, I don't see any aggressive tone in Gillyspot and Aquila perfectly valid questions, just xavier accusing them in lieu of answering their questions.

Quoting xavier : "I am simply trying to bring a little informed legal perspective to this forum". I take that to infer he's legal background, so, since xavier is a legal-wise-owl can we respectfully ask him to at least TRY to bring us his informed legal perspectives on the upcoming libel in positive lights bearing in mind the purpose of this forum, that is, Justice for Madeleine? It would be interesting to hear xavier legal view on the Amaral upcoming libel trial.








To repeat, I think we need a cautious voice like yours. But the McCanns are all grown up so they are responsible for their actions. Their pursuit of Amaral is nothing short of vindictive. As one poster recently researched the fund's finances, it seems the fund primarily makes money from legal actions. Besides, the 3.4 million which is being spent on reviewing the case must be a first in legal history. It also means the fund should spend all their resources to find Madeleine, apart from a Facebook page, little seems to be happening in that direction.

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Post by Xavier on 14.12.11 7:32

@aquila wrote:Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.

Aquila - There is a general principle in Portuguese law of not profiting from a wrongdoing. I posted the reference on another thread and now I am damned if I can find it. But the figure for "damages" would have been based on the profits from the book.

Bear in mind that Amaral is not the only defendant in the libel case. That is both a strength and also possibly a weakness.
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Post by uppatoffee on 14.12.11 7:44

Well if Isabel Duarte still has all the copies of the book and has refused to hand them back along with the fact that they have banned it from sale in England at least, I am not sure how current sales would make 1.2 million's worth of damages.
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Post by aquila on 14.12.11 8:08

@Xavier wrote:
@aquila wrote:Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.

Aquila - There is a general principle in Portuguese law of not profiting from a wrongdoing. I posted the reference on another thread and now I am damned if I can find it. But the figure for "damages" would have been based on the profits from the book.

Bear in mind that Amaral is not the only defendant in the libel case. That is both a strength and also possibly a weakness.

Thank you Xavier. Who exactly is a defendant in the libel case? If recent headlines are anything to go by it suggests only Amaral. It's still not clear to me how the figure of 1.2M is arrived at. Where is the breakdown of this figure?
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Post by aquila on 14.12.11 8:16

@uppatoffee wrote:Well if Isabel Duarte still has all the copies of the book and has refused to hand them back along with the fact that they have banned it from sale in England at least, I am not sure how current sales would make 1.2 million's worth of damages.

Hi uppatoffee...perhaps I haven't read enough but I read somewhere on this forum that the books weren't returned. If that's the case why weren't they returned? If a judge in Portugal ruled Amaral's book could be published, I'd have thought the books are his/his publisher's property. Any info?
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Post by Xavier on 14.12.11 9:59

@aquila wrote:
@Xavier wrote:
@aquila wrote:Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.

Aquila - There is a general principle in Portuguese law of not profiting from a wrongdoing. I posted the reference on another thread and now I am damned if I can find it. But the figure for "damages" would have been based on the profits from the book.

Bear in mind that Amaral is not the only defendant in the libel case. That is both a strength and also possibly a weakness.

Thank you Xavier. Who exactly is a defendant in the libel case? If recent headlines are anything to go by it suggests only Amaral. It's still not clear to me how the figure of 1.2M is arrived at. Where is the breakdown of this figure?

I understand that 1.2m euros was the amount ringfenced at the original injunction hearing, and was I assume calculated as the profit from the book.

The case is complicated by there being three defendants - Amaral, Guerre e Pais and TV1.

The books will almost certainly be owned by Guerre et Paix, and it would be up to them to request their return.

If they have not done so, or have not pursued the matter, then it begs the question "why not".

Having three defendants is a possible advantage as costs of defense can be shared.

However, it could be a serious weakness if G&P and TV1 take a commercial decision not to fight the case and seek to settle out of court prior to the trial. That could leave Amaral isolated.
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Post by Xavier on 14.12.11 10:04

yo
[color=blue]I second that.
Me, too, I don't see any aggressive tone in Gillyspot and Aquila perfectly valid questions, just xavier accusing them in lieu of answering their questions.

Quoting xavier : "I am simply trying to bring a little informed legal perspective to this forum". I take that to infer he's legal background, so, since xavier is a legal-wise-owl can we respectfully ask him to at least TRY to bring us his informed legal perspectives on the upcoming libel in positive lights bearing in mind the purpose of this forum, that is, Justice for Madeleine? It would be interesting to hear xavier legal view on the Amaral upcoming libel trial.



[/quote][/quote]

Aiyoyo - you do seem to have a problem with me, and I am sorry that you do. May I respectfully suggest that you either get whatever it is off your chest, and we clear it up or that you put me on ignore.

What questions am I not answering?
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Post by aquila on 14.12.11 10:16

@Xavier wrote:
@aquila wrote:
@Xavier wrote:
@aquila wrote:Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.

Aquila - There is a general principle in Portuguese law of not profiting from a wrongdoing. I posted the reference on another thread and now I am damned if I can find it. But the figure for "damages" would have been based on the profits from the book.

Bear in mind that Amaral is not the only defendant in the libel case. That is both a strength and also possibly a weakness.

Thank you Xavier. Who exactly is a defendant in the libel case? If recent headlines are anything to go by it suggests only Amaral. It's still not clear to me how the figure of 1.2M is arrived at. Where is the breakdown of this figure?

I understand that 1.2m euros was the amount ringfenced at the original injunction hearing, and was I assume calculated as the profit from the book.

The case is complicated by there being three defendants - Amaral, Guerre e Pais and TV1.

The books will almost certainly be owned by Guerre et Paix, and it would be up to them to request their return.

If they have not done so, or have not pursued the matter, then it begs the question "why not".

Having three defendants is a possible advantage as costs of defense can be shared.

However, it could be a serious weakness if G&P and TV1 take a commercial decision not to fight the case and seek to settle out of court prior to the trial. That could leave Amaral isolated.

There is STILL no breakdown. Three defendants (not what the public understand given the title of this thread) and no figure allotted to their individual role in the complaint. I am grateful for your law knowledge but don't understand why it isn't clear who pays for what in this lawsuit. You say that defence costs can be shared if all three go to court and there isn't an out of court settlement by the G&P and TV1 leaving Amaral isolated. So, exactly what are they suing each individual for? Civil cases stink...so do cadavers (forgive me, I couldn't help that remark).
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Post by Guest on 14.12.11 10:43

@aquila wrote:
@Xavier wrote:
@aquila wrote:
@Xavier wrote:
@aquila wrote:Xavier, can you tell me how a figure for libel (not sure if I've even got the correct legal term here - is it slander/libel) damages is arrived at? I read in the papers that it is 1.2M Euros for the McCann's lawsuit against Amaral.

Is it laid out in accounting fashion? i.e. 20,000 for this or that?

Would appreciate your expertise in this.

Aquila - There is a general principle in Portuguese law of not profiting from a wrongdoing. I posted the reference on another thread and now I am damned if I can find it. But the figure for "damages" would have been based on the profits from the book.

Bear in mind that Amaral is not the only defendant in the libel case. That is both a strength and also possibly a weakness.

Thank you Xavier. Who exactly is a defendant in the libel case? If recent headlines are anything to go by it suggests only Amaral. It's still not clear to me how the figure of 1.2M is arrived at. Where is the breakdown of this figure?

I understand that 1.2m euros was the amount ringfenced at the original injunction hearing, and was I assume calculated as the profit from the book.

The case is complicated by there being three defendants - Amaral, Guerre e Pais and TV1.

The books will almost certainly be owned by Guerre et Paix, and it would be up to them to request their return.

If they have not done so, or have not pursued the matter, then it begs the question "why not".

Having three defendants is a possible advantage as costs of defense can be shared.

However, it could be a serious weakness if G&P and TV1 take a commercial decision not to fight the case and seek to settle out of court prior to the trial. That could leave Amaral isolated.

There is STILL no breakdown. Three defendants (not what the public understand given the title of this thread) and no figure allotted to their individual role in the complaint. I am grateful for your law knowledge but don't understand why it isn't clear who pays for what in this lawsuit. You say that defence costs can be shared if all three go to court and there isn't an out of court settlement by the G&P and TV1 leaving Amaral isolated. So, exactly what are they suing each individual for? Civil cases stink...so do cadavers (forgive me, I couldn't help that remark).


According to a poster on MCF in Portugal a libel case is a criminal case not a civil case.
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