Thursday, 6 September 2018
Four Days Before Christmas, 2017 - Part 5
As soon as the Christmas and New Year festivities were behind us, I set about finding a lawyer; I needed to find one fast. Because of the jurisdiction issues, the lawyer I employed really needed to be in Australia. I managed to find a lawyer who agreed to handle the matter for me, but the distance meant there were additional issues with time-differences, currency exchange, etc. The stress just never left me. Not even in my sleep. I had nightmares about stepping off a plane, going straight to court and then being handcuffed and marched to the cells, sobbing and protesting my innocence. I woke in a panic from my nightmares each time and realised I was actually in the middle of a real-life nightmare. I would feel my heart lurch and then hammer in my chest each time reality hit me, and the fear and stress would flood my body afresh. It was relentless.
My lawyer and I discussed me sending an initial letter to the Plaintiff’s lawyer, making it clear that I was not the person the Plaintiff was seeking, to see if this resulted in the Proceeding being discontinued.
I wrote to the Plaintiff’s lawyer on 2 January 2018. I advised that I was first alerted to the Plaintiff’s allegations upon receipt of the lawyer’s letters, and that I knew nothing about, nor was I responsible for, publishing any defamatory material about him. I confirmed that I was not aware of the Plaintiff’s address and had no interest in it, or in the Plaintiff. I went on to say that the Plaintiff’s allegations were misdirected and that, had the Plaintiff (or the lawyer himself) written to me prior to issuing proceedings and provided me with an opportunity to respond to the Plaintiff’s allegations, the Plaintiff might have reached the same conclusion himself.
I pointed out that the defamatory material, if, in fact, it was actually published, could have been prepared by anyone with access to the internet. That the alleged author appeared to have referred to my name and to material published on the internet by others, including by me, did not determine the alleged authorship of the material. In any case, there was no link between the alleged defamatory material and my blog.
I advised that in my view there were a number of steps that the Plaintiff could have taken in order to ascertain the identity of the party responsible for the alleged conduct, which ought to have taken place prior to issuing a legal proceeding. In particular, I suggested that the Plaintiff could ask the owner of the internet domain to identify the IP address of the computer that was allegedly used to complete the Contact Us form entry.
I concluded the letter, politely suggesting that the Plaintiff refrains from wasting their money pursuing the wrong person, and I requested that the Proceeding be immediately discontinued.
On 10 January 2018, I received an email response from the Plaintiff's solicitor, in response to my letter. The lawyer requested that I provide a sworn Affidavit, deposing to the matters raised in my letter. He attached a draft Affidavit to his email and advised, “This may resolve the matter as far as you are concerned.” He instructed the Affidavit had to be witnessed by a Notary Public, here in the United Kingdom.
At this point, I parted with a large sum of money to my Australian lawyer for his assistance. He liaised with the Plaintiff’s lawyer in terms of agreeing the wording of the Affidavit. Its basic content had to include that whilst I was the named Defendant in the Proceeding, I had no knowledge of, nor had I published or authorised publication of any defamatory material about the Plaintiff.
The draft of the Affidavit prepared by the Plaintiff’s lawyer included a clause, which read: “I do not, and have never, believed or accused the plaintiff (either privately or publicly), of any conduct as referred to in the Email or the Letter.”
Of course, I have never accused the Plaintiff (either privately or publicly) of any conduct as referred to in the Email (meaning the Contact Us entry) or the Letter (meaning the posted material). I don’t know why they included a clause like this, because “belief” is subjective. As I understand it, an affidavit must be factual. I have no personal knowledge about the Plaintiff, including anything related to the allegations. I cannot say that I believe either way, as I have no idea. Some may say: “there’s no smoke without fire”, but I cannot comment as I don’t know. What was important, and necessary for the affidavit to include, was that I didn’t do it myself, nor authorise it, nor have any knowledge of it.
Finally, the Affidavit wording was agreed and the clause about belief was removed from the final document.
I then parted with more money to a lawyer here in the UK, and on 31 January 2018, I affirmed the Affidavit before a Notary Public, as requested.
My Affidavit was submitted via my Australian lawyer, and I then had the stress of waiting to hear what the next move would be. I had gone to the trouble and expense of affirming the Affidavit, as requested by the Plaintiff’s lawyer, but there was absolutely no guarantee that that would be the end of the matter. As I understood it there was no legal obligation for the Plaintiff to cease the Proceeding against me if he chose not to. What if he decided to pursue me anyway?
On 1 February 2018, my lawyer notified me that the Plaintiff proposed to provide me with a release from participating in the Proceeding and for consent orders to be filed, which removed me from the Proceeding in the following form:
1. Leave for the Plaintiff to amend the Statement of Claim to show the address of the Defendant as “unknown”
2. The court to note that Marion Evans [from my address] is not the Defendant, Marion Evans
3. The Proceeding to be deferred until 18 May 2018
So, bizarrely, the Defendant remained named as “Marion Evans”, but my address was removed, and the address of the Defendant was recorded as “unknown”. Thus, apparently leaving the Plaintiff to pursue another person using the name Marion Evans; although he had no idea who this was. Presumably, this would mean that anyone else on the planet named Marion Evans was now in the frame!
I had great difficulty in absorbing this; it just seemed ludicrous! I couldn’t understand why the Plaintiff couldn’t simply admit that he had made an error and pursued the wrong person. I’m sure the case could have been discontinued there and then. Instead, as I understood it, the Plaintiff was apparently considering proceeding with the case against the “correct” Marion Evans, the Marion Evans who had allegedly attacked him with defamatory material, the Marion Evans from an unknown address, not the Marion Evans from my address. I wondered how on earth he was hoping to find this other “Marion Evans”. In essence, it seemed he was proceeding with the case against an UNKOWN DEFENDANT. How on Earth could papers be served on someone unknown? I wondered if anything as bizarre as this had ever taken place in a court of law before. It seemed so unorthodox! If they ever did locate the author of the defamatory material, I am certain their name would not be Marion Evans!
On 16 February, the date of the hearing, my lawyer emailed me, advising that the Court had adjourned the Proceeding for three months. He advised he had provided my affidavit directly to the Plaintiff's solicitor, who had supplied a Deed of Release for execution. I never signed the Deed of Release.
On 17 May, my lawyer emailed me with an amended Statement of Claim. My lawyer confirmed that I was no longer identified as the Defendant in the proceeding, and the relief that was being sought was not being sought against me. Instead, it was being sought against "a Marion Evans", whose address is "unknown" and the relief they were seeking was being sought against that person of unknown address, and not me, whose address they did know.
In June 2018, still with no idea what the exact position was, or what had transpired at the hearing on 18 May, I emailed the court to try to establish this. The court then responded with a copy of the court order that had been filed, which stated that the proceeding had been discontinued. Seemingly, the Plaintiff had not even deemed it necessary to notify me of this fact.
........Tomorrow: Medical diagnosis that turned my world upside down.