Blacksmith - Stating The McCann's Will Settle On Amaral's Terms ........PLUS NEW ***McCanns ask for extrajudicial settlement by Joana Morais**TRIAL NOW SUSPENDED**

still are.......5+ years of carrying on........

Joana added this yesterday re the suspension of the trial....



Joana Morais said... 158


What is an extrajudicial settlement (in Portuguese law)?

An extrajudicial settlement is an agreement in which the parties agree on compensation for lost profits, or for damages, within the framework of civil liability, outside the Court. It is made by the representatives of the parties and must be ratified to have juridical value.

All the bellow answers may vary according to what was specified and requested by the parties and to what was ratified, at the time, by the judge in charge of this process.

If the four defendants refuse to accept settlement with the McCanns, do they have to wait for six months for the Libel Trial?

No, if the four defendants and claimant fail to reach an agreement the case will return to the status of civil action and the decision of when to start the proceedings will be made by the judge.

Or is the 6 months the maximum time the judge has allowed for them to try and reach a settlement?

The six months period is the maximum (in this specific case depends on what was established/see above note); however it can be extended if all parties agree on said extension and if the judge also agrees to that.

Can the McCanns on failure to get the settlement THEY want totally walk away and back out of the case, or can the Judge now order it to continue?

See above for the second question and,

Article 116º of the CP states, in case the claimant “renounces” or “withdrawals” the complaint:

1 - The right of complaining cannot be exercised if the holder (claimants/complainants/plaintiffs) has expressly renounced to it or where if it has practiced acts from where that renunciation can be inferred.

2 - The complainant may withdraw the complaint, as long as there is no opposition from the defendant, until the publication of the 1st instance court ruling. The withdrawal prevents
the complaint to be renewed.

3 - The withdrawal of the complaint concerning one of the co-defendants of the crime [fill with McCann allegations] benefits the remainder, if there is no objection from these, in cases where
they cannot as well be persecuted.

According to the law there is pecuniary liability in certain instances, [Article 515º of the CPC and 83º of the CJC] ex. If the complainant ends the process by forfeiting or by unjustifiably refraining from making the accusation; or if it is defeated in the process that was requested by him/her [in this case the couple]. There are also other punishments regarding the legitimacy of the complaint, ie, if the complaint is manifestly not justified or clearly without foundation.

Further note:

In civil law the right to complaint is of up to three years after the knowledge of the practice of the fact, not of the occurrence/fact itself. A complaint under criminal law has a deadline of six months after the knowledge of the fact [Article 115º CP].

http://joana-morais.blogspot.com/2013/01/mccanns-ask-for-extrajudicial-settlement.html

[quote="candyfloss"]Joana added this yesterday re the suspension of the trial....



Joana Morais said... 158


What is an extrajudicial settlement (in Portuguese law)?

An extrajudicial settlement is an agreement in which the parties agree on compensation for lost profits, or for damages, within the framework of civil liability, outside the Court. It is made by the representatives of the parties and must be ratified to have juridical value.

All the bellow answers may vary according to what was specified and requested by the parties and to what was ratified, at the time, by the judge in charge of this process.

If the four defendants refuse to accept settlement with the McCanns, do they have to wait for six months for the Libel Trial?

No, if the four defendants and claimant fail to reach an agreement the case will return to the status of civil action and the decision of when to start the proceedings will be made by the judge.

Or is the 6 months the maximum time the judge has allowed for them to try and reach a settlement?

The six months period is the maximum (in this specific case depends on what was established/see above note); however it can be extended if all parties agree on said extension and if the judge also agrees to that.

Can the McCanns on failure to get the settlement THEY want totally walk away and back out of the case, or can the Judge now order it to continue?

See above for the second question and,

Article 116º of the CP states, in case the claimant “renounces” or “withdrawals” the complaint:

1 - The right of complaining cannot be exercised if the holder (claimants/complainants/plaintiffs) has expressly renounced to it or where if it has practiced acts from where that renunciation can be inferred.

2 - The complainant may withdraw the complaint, as long as there is no opposition from the defendant, until the publication of the 1st instance court ruling. The withdrawal prevents
the complaint to be renewed.

3 - The withdrawal of the complaint concerning one of the co-defendants of the crime [fill with McCann allegations] benefits the remainder, if there is no objection from these, in cases where
they cannot as well be persecuted.

According to the law there is pecuniary liability in certain instances, [Article 515º of the CPC and 83º of the CJC] ex. If the complainant ends the process by forfeiting or by unjustifiably refraining from making the accusation; or if it is defeated in the process that was requested by him/her [in this case the couple]. There are also other punishments regarding the legitimacy of the complaint, ie, if the complaint is manifestly not justified or clearly without foundation.

Further note:

In civil law the right to complaint is of up to three years after the knowledge of the practice of the fact, not of the occurrence/fact itself. A complaint under criminal law has a deadline of six months after the knowledge of the fact [Article 115º CP].

http://joana-morais.blogspot.com/2013/01/mccanns-ask-for-extrajudicial-settlement.html[/quote]



So, is this what extrajudicial settlement (in Portuguese law) is saying?

The McCanns have asked for a postponement. Six months is the maximum, but if the defendants do not agree with the offer (if there is an offer), then it’s up to the judge to resume the trial at the earliest convenience.

The above tells me that e defendant has the ace card, and it will be up to him/them to call the shots. The McCanns cannot withdraw the complaint without the agreement of the defendant/s

Moreover, if the McCanns withdraw the complaint they cannot, at a later date, reintroduce the complaint.

Furthermore, if it is shown that the McCanns, even if they withdraw the complaint, are still liable for costs etc, if it is shown that they had no grounds to bring the complaint in the first place.



The above is my brief interpretation of what I believe to be the case. However, I am happy to listen to what others have to say about it

The McCann's appear to be up a creek without a paddle

The term 'extrajudicial settlement' is best translated into English as 'out-of-court settlement'.

By the sound of it, then, in Portuguese law just as in English law, then, a person may not withdraw a claim that has been made in the court without (a) the leave (permission) of the court and (almost invariably) (b) the agreement of the defendant(s).

In most cases, if leave of the court is granted, the claimant will have to pay the defendant's legal costs.

Tony Bennett wrote:The term 'extrajudicial settlement' is best translated into English as 'out-of-court settlement'.

By the sound of it, then, in Portuguese law just as in English law, then, a person may not withdraw a claim that has been made in the court without (a) the leave (permission) of the court and (almost invariably) (b) the agreement of the defendant(s).

In most cases, if leave of the court is granted, the claimant will have to pay the defendant's legal costs.

***
That's very clear, thank you.

Could you also explain, what exactly is the "stay" of a trial or court case? And how this "stay" can be lifted?

Châtelaine wrote:

Tony Bennett wrote:The term 'extrajudicial settlement' is best translated into English as 'out-of-court settlement'.

By the sound of it, then, in Portuguese law just as in English law, then, a person may not withdraw a claim that has been made in the court without (a) the leave (permission) of the court and (almost invariably) (b) the agreement of the defendant(s).

In most cases, if leave of the court is granted, the claimant will have to pay the defendant's legal costs.

***
That's very clear, thank you.

Could you also explain, what exactly is the "stay" of a trial or court case? And how this "stay" can be lifted?

A 'stay' means a suspension of proceedings (slightly different from an adjournment). Usually, the proceedings are stayed...i.e. suspended, because there is an agreement of some kind, or for some other procedural reason. The proceedings are 'in suspension'.

If the 'stay' is lifted, it means that the proceedings become 'live' again. In this case, Mr Justice Tugendhat has suggested that the 'stay' be 'lifted' so that my application to revoke three of my undertakings can be heard. Otherwise, he said, my application can't be considered. The effect would be to 'reactivate' the original libel claim made by the McCanns.

I am content with that.

The McCanns oppose it vigorously

I'm sure they do....

Thanks. That's what I thought.

And, of course, they don't want to go to court. They never did [apart from the disastrous hearings in Lisbon 2 years ago] and they never will. They have a very weak case, so to speak, and cannot risk to lose. If they lose against Dr. Amaral, they will lose against you too and v.v.
You both sing from the same hymn sheet ...

ETA: IMO, of course, IMO

Blacksmith has been quite prevalent of late, I've missed him this week!

http://missingmadeleine.forumotion.net/t22853-no-settlement#43387

With acknowledgement to the Missing Madeleine site.

The parents of Madeleine McCann, the British child missing in the Algarve in 2007 and Gonçalo Amaral did not reach court settlement in civil proceedings in which the former Judiciary Police inspector accused of alleged defamation. . Defense source said on Monday Lusa that "the parties have not reached agreement" and has called for "the resumption of proceedings" in 1. Civil Court of Lisbon, which will now have to schedule a new date for the beginning of trial

Have started new thread on this important news.

candyfloss wrote:Have started new thread on this important news.

***
Now, why do I find that excellent news ...?
Under oath in a court room ... maybe ... ?

Will lock this for now so discussion can now carry on on other thread, as this case now not suspended but proceeding.