Committal - Breach of undertaking

McCann and another v Bennett: Queen's Bench Division: 21 February 2013

The claimants were the parents of a child who disappeared at the age of three years old when she was on holiday with her family in Portugal in May 2007. The defendant was a former social worker and solicitor who had written at very great length about that affair. In August 2009, the claimants wrote to the defendant, stating that he had been engaged in a course of conduct that constituted harassment and that he was liable for the publication of numerous grave and actionable libels, from which they asked him to desist.

In October 2009, the defendant offered undertakings and assurances to the claimants. In November 2009, the claimants complained that the defendant had, in spite of his undertakings and assurances, directed people to other websites which continued to publish a leaflet that the claimants had complained of (the leaflet). They required the defendant to give his undertakings to the court, to which the defendant agreed. The claimants issued a claim form for damages for libel and an injunction to restrain the defendant from further publishing the words complained of or similar words defamatory of them.

An order set out the undertakings given by the defendant: (i) to deliver up all hard copies and to destroy any electronic version of a booklet and the leaflet; (ii) to use his best endeavours to delete or otherwise prevent access to any and all defamatory allegations about the claimants published on websites; and (iii) not to repeat the same or similar allegations about the claimants (the undertakings). In December 2011, the claimants issued an application notice, alleging that the defendant was guilty of contempt of court in that he was in breach of the undertakings and sought the imposition of such penalty as the court thought appropriate. They originally relied on 153 publications as constituting breaches of the undertakings, but made a selection of 13 for the purposes of the instant application.

The claimants contended that the 13 publications bore the meanings that the claimants were: (i) guilty of causing the child's death; and (ii) guilty of disposing of her body, lying about what happened and covering up what they had done or, in the alternative (iii) to be suspected of each of those acts. The defendant had never disputed responsibility for the publications. He contended that: (i) he did not intend the meanings alleged; (ii) his statements should go unpunished because they were honest comment and/or it would be a violation of his right to freedom of expression under article 10 of the European Convention on Human Rights, and access to the courts and justice under article 6 of the Convention; and (iii) the court should have regard to the occasions on which he had complied with the claimants' requests to take down or cease distribution of material.

It fell to be determined: (i) whether the defendant had breached the undertakings; (ii) whether the defendant had the requisite mental element of contempt; and (iii) whether the defendant's rights had been infringed. The application would be allowed.

(1) It was settled law that, in an application for an order that a defendant be committed to prison for contempt of court, the claimant had to prove that: (i) the defendant had had proper notice of the undertakings which he was alleged to have breached and that the order was in the proper form; (ii) the defendant was responsible for one or more of the publications alleged to have been a breach of the undertakings; and (iii) the publications for which the defendant had been responsible had made one or more of the allegations which the defendant had undertaken not to make (see [16] of the judgment).  

On the facts, breach of the undertakings had been proved with respect to the 13 publications which had born the meanings that the claimants: (i) had actually been guilty of causing the death of their daughter; (ii) had actually been guilty of disposing of her body, lying about what had happened and covering up what they had done; and, in the alternative that they were (iii) to be suspected of each of those acts in any event (see [88], [94], [96], [98], [100], [102], [104], [106], [108], [110], [112], [114], [116], [118] of the judgment). Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan) considered.

(2) It was an established principle that the power of the court to ensure obedience to its orders for the benefit of those in whose favour they were made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he had done had been a breach of the order, particularly when a belief that it had not been a breach might have rested on the slenderest of foundations or on convenient advice which had plainly been wrong (see [127] of the judgment).

In the instant case, there could be no doubt that the defendant had had the required knowledge. He had intended to allege that the claimants were to be suspected of causing the death of their daughter and had, in fact, disposed of her body, lied about what had happened and covered up what they had done. He had intended his words to bear the other meanings which the court had held they bore. The words were too clear and the repetitions too numerous for any other interpretation to be put upon what the defendant had done. Further, the point that the defendant had complied with the undertakings some of the time might be relevant to penalty, but it could not be relevant to the breaches which had been proved (see [128], [129] of the judgment). Masri v Consolidated Contractors International SAL [2011] All ER (D) 78 (May) applied.

(3) The court had endeavoured to ensure that the defendant had had a fair hearing. Further, the right to freedom of expression, whether at common law or under article 10 of the Convention, was not an absolute right that prevailed over all others. In the instant case, it was subject to the claimants' rights under the judgment that they obtained in November 2009, which had incorporated the undertakings, and to the need to uphold the authority of the court which had made that order (see [138], [142] of the judgment). XY v Facebook Ireland [2012] NIQB 96 adopted.

Adrienne Page QC and Jacob Dean (instructed by Carter-Ruck) for the claimants; The defendant appeared in person.

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