Wednesday, August 17, 2011

#McCann #Smethurst's LIbel Claim hits a snag - he hasn't followed the Defamation Protocol

 Post  Tony Bennett Today at 7:13 pm

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:-

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
CM17 0DJ

Tel: 01279 635789

e-mail: Essex
Mobile: 07835 716537

Wednesday 17 August 2011

6 St. Andrew Street

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.


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:


I trust your client will treat this information with appreciation; as a parent myself, I would certainly appreciate others giving me such a Iwarning.

Yours faithfully

Tony Bennett [size=18]!/annabel.smethurst.xx

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 offactual 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?

Annabel Smethurst

Finally, and in the light of what we have said in this letter and elsewhere about Mr Smethurst’s former ‘Facebook Friend’ Ben Murphy, it might be a concern for your client that his daughter Annabel and Ben Murphy are ‘Facebook Friends’, which you and he can check by visiting these two links:

Last edited by Tony Bennett on Wed Aug 17, 2011 7:18 pm; edited 3 times in total