McCann & Anor v Bennett

A person who gives an undertaking to the court must obey it unless and until it is discharged or varied. In committal proceedings, the claimant must prove, to the criminal standard, proper notice, responsibility for the relevant publication, and publication of an allegation prohibited by the undertaking. The court determines meaning objectively, applying the approach used in defamation cases, but must be sure that the publication breached the undertaking. The alleged contemnor’s intention to breach the undertaking is unnecessary if the person knew the order, knowingly engaged in the conduct, and knew the facts making it a breach. Freedom of expression does not authorise disobedience to an extant court order. The court found thirteen breaches proved.

The claimants, parents of a missing child, obtained undertakings from the defendant in November 2009 in stayed libel proceedings. The defendant undertook to destroy specified publications, prevent access to defamatory allegations published by him, and refrain from repeating allegations that the claimants had caused their daughter’s death, disposed of her body, lied about what happened, or covered it up.

The claimants later applied to commit the defendant for contempt, relying on thirteen selected publications made through websites, social media, letters published online, and sales of publications. The defendant accepted responsibility for publication but argued that the undertakings were given under duress, that the publications were honest comment or factual discussion, and that committal would infringe his Convention rights. The central issues were the meaning of the publications, the mental element of contempt, and whether those arguments provided a defence.

1. Applicable requirements. The claimants had to prove that the defendant had proper notice of the undertakings and order, that he was responsible for the publications, and that the publications made allegations prohibited by the undertakings. Each element had to be proved so that the court was sure.
2. Continuing obligation. An undertaking given to the court is as solemn, binding and effective as an order. It must be obeyed unless and until discharged or varied. Alleged duress, irregularity, or invalidity did not justify unilateral disobedience.
3. Meaning. The court assessed the publications objectively, applying the principles governing natural and ordinary meaning in defamation proceedings. The defendant’s intention was irrelevant to meaning. The publications, read in context and as a whole, conveyed that the claimants had caused their daughter’s death, disposed of her body, lied about what happened, or covered it up, or were to be suspected of those matters. Repetition and the production and sale of supporting publications showed that the material was intended to be taken seriously.
4. Mental element. Contempt required knowledge of the order, conduct involving breach, and knowledge of the facts making the conduct a breach. It was unnecessary to prove that the defendant knew his conduct legally constituted contempt or intended to breach the order. In any event, the defendant knowingly and deliberately flouted the undertakings.
5. Convention rights and other arguments. Article 10 freedom of expression and Article 6 fair-trial rights were engaged, but they did not permit disobedience to the order or override the claimants’ rights and the authority of the court. Truth, honest comment, qualified privilege, and the fact that other persons had published similar material were irrelevant to whether the undertakings had been breached.
6. The thirteen selected breaches were proved. The question of penalty was adjourned and the case was re-listed for determination of the appropriate penalty and remaining issues.