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It has been shown that as a result of this (ambiguous, likely the media coverage) the claimants Kate and Gerald McCann suffered personal injury that deserves the protection of law (n°s 81, 82 and 83 ) .
The same offence allowed the defendant earn the amount of about 382.000 € of profits (paragraphs 33 and 62, this last value including the profits of the sale of the DVD in a way supposed not to be very rigorous, but should be materially true, because if the DVD was only sold at the end of April 2009, the process for its marketing began on 7 March 2008 with the contract concluded with the defendant VC Filmes, this defendant having paid the 40.000 € documented p. 2095).
In light of these vectors, the compensation requested by the claimants is deemed appropriate and proportionate, being of 250.000 € for each, to which must be added, under paragraph 3 of the article 805º of the Civil Code, default interest at the rate of civil interests, from the date the defendant Goncalo Amaral's was summoned (January 5, 2010 , p.151) until full payment.
The claimants also call for compensation to be paid later for the costs that may incur with legal actions necessary to take away the committed offence (paragraph 4 of demands). Civil law protects the future damage "if predictable". In case that damage is not immediately ascertainable, it will be settled at a later decision (article 564º, paragraph 2 of the Civil Code). This part of the application is not grounded on predictable future damage (nothing has been proven in that respect) but on merely hypothetical or potential damages, so it cannot be proceeded.
Another demand is the publication of the judgement by extract, a measure typical of the violations committed through the press (article 34 of Law n° 2/99 of 13 January ). The application of the press law is not an issue in this lawsuit.
Nevertheless, paragraph 2 of the article 70 of the Civil Code anticipates, regardless of the civil liability that might arise, that the court may order, in situations of offence to personality, "provisions appropriate to the circumstances" in particular in order to "attenuate the effects of the offence already committed". The measure at issue, though suitable in theory, is not, as it appears, necessary in this case. The claimants have, supporting them, a professional structure of communication and press attachés that makes redundant any measure of that kind (n°s 67, 68 , 68, 70, 71 and 77)
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Another demand is the payment, by the defendant Goncalo Amaral, of the fees of claimants' agents (paragraph 6 of demands) .
The system of legal costs provides, in respect of the expenses, the payment by the losing party to the winning one fifty percent of the paid court fees, as compensation for the fees charged by the legal agent [paragraph c) of paragraph 3 of the article 26 of Regulation of Lawsuit Costs]. Apart from this regime only two legal hypotheses consider this requested payment : the litigation in bad faith, without application, obviously, as ground of the demand in question and the pre-existing negotiated agreement forecasting that obligation (as it happens, eg in mutual loan contracts to finance the purchase of housing). Since neither of the two hypotheses is pertinent, the demand will have to be dismissed.
So, in concluding summary, in the lawsuit brought by the claimants Kate, Gerald, Madeleine, Sean and Amelie McCann against the defendant Goncalo Amaral the requests of the first two claimants will partly proceed and, as a whole, the requests of the others will not.
IV. In the attached action the claimants face the same defendant and also Guerra & Paz, Editores, V.C Filmes e TVI with a set of demands that are affiliated, in our view, to the provision of the article 70 paragraph 2 of the Civil Code quoted above.
These three mentioned entities were constituted defendants as vehicles of the illegality committed by the defendant Goncalo Amaral, being then passive objects of the measures that under the referred standard must be ordered, according to the criteria of adequacy and proportionality, to attenuate the effects of this illegality.
It is important to analyse in details each of the demanded measures and check, case by case, whether they are legal, appropriate and proportionate to the case and who are the recipients of those measures :
a) prohibiting the sale and ordering to collect the books to be delivered to the claimants congregate these attributes and must be ordered, not fulfilling this office, which is merely declarative, appoint any trustee. This prohibition and order must address the defendants Goncalo Amaral and Guerra & Paz, Editores, S.A.
The prohibition to sale and the collection of the videos (the claimants refer certainly, in that part, to the DVD) cannot take place, because it has been shown that the first was made through third party companies (Valentim de Carvalho Multimédia, SA and Presselivre, Imprensa Livre, SA - paragraphs 39, 52 and 56) and it was also proven that the documentary was only processed into DVD once, having been distributed for sale 75,000 copies, of which 63.369, not sold, were destroyed (n° 57, 53 and 54),
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b) The prohibition on implementation of new editions of the book or DVD, as well as transfer of editing rights and copyright is adequate and should be directed against the defendants Goncalo Amaral, Guerra & Paz and VC Filmes who is, relative to the first, the owner of the book audiovisual adaptation rights (paragraphs 35 and 36). The court may not, under penalty of a form of prior censorship, adopt any measure concerning "other books and videos on the same theme".
c) The prohibitions required under paragraphs d ), e) and f) of the attached action's demands go beyond the scope of this action and are disproportionate. It is important to keep in mind that it is not illegal to sustain the thesis according to which Madeleine McCann died in the apartment of Praia da Luz and that her body was concealed by her parents. The scope of the lawsuit is the affirmation, by the defendant Goncalo Amaral, in the book, the interview and the documentary, in the concrete terms that he used, of the same thesis.
d) To the requested condemnation to publication of the judgement, are applicable the above considerations, related to equal demand.
e) The mandatory sanction is appropriate, but should be fixed in accordance with the provision in paragraph 1 of the article 829º -A of the Civil Code, only for payments in fact insubstituable, considering proportionate the amount of 50.000 € for each offence to this order (paragraph 2 of article 829º -A of the Civil Code ).
f) A request for payment of fees was discussed above, dismissing new considerations.
To the extent of the above and in short, the claims made in the attached action partly proceed against the defendants Goncalo Amaral, Guerra&Paz, Editores, SA and VC–Valentim de Carvalho–Filmes, Audiovisuais, SA and not against the defendant TVI–Televisão Independente, SA.
V. In the current version of the Code of Civil Procedure remains untouched the scope of bad-faith, also covering the gross negligence litigation [artº 456th, # 2 of the Code of Civil Procedure]. In the same version, however, the responsibility for litigation of bad faith of collective persons lies on the party, and not, as it occurred before the Law n° 41/2013 of 26 June, on the legal representative [artº 544 th of the Code of Civil Procedure].
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Are examples of serious negligence, for that purpose, a reckless or bold dispute (the party, though convinced of their reason, risks gross error in filing the action or the defence disregarding the significant reasons of fact or law which compromised their claim) ; the demand on a whim, with emulation spirit or gross error ; the wanton or reckless complaint ; the serious lack of care duty ; the persistent and forceful opposition, clearly and decisively unfounded, for incorrect interpretation and application of law and maladjustment to the proven facts ; the claim or defence obviously unbearable, constituting the abuse of the right to action; the serious technical failure (this sense, A. GERALDES, Judicial Themes, I Vol).
The behaviour that the law defines as integrating bad faith are:
a) deducting claim or opposition of which the party should not ignore the lack of ground in fact or in law, i.e the party must weigh the reasonableness of the claim, avoiding it if it is not strongly funded ;
b) change the truth of the facts or omit facts relevant to the decision in the case, e.g the lie of the party, presenting a accident version that the party knew to be false ;
c) seriously neglecting the duty to cooperate;
d) exploiting, in a clearly reprehensible way, the process or the legal means in order to prevent the discovery of the truth, obstruct the course of justice or delay, without serious grounds, the final decision with no possible appeal.
Is litigating of bad faith the party who claims, but does not prove, a version that contradicts the one submitted by the counterpart, if it is proved, in return, that this includes facts of which the first had personal knowledge [cf. Judgement of the Supreme Court of 7.10.2004, Laura Leonardo, accessible on
www.dgsi.pt ].
It is therefore bad-faith litigation to deny essential facts that one necessarily has knowledge for being personal [cf. Judgement of Supreme Court of 20.9.2007, Maria Pizarro Beleza, accessible on the same website].
In the assessment of factual assumptions in order to condemn a party as bad faith litigant, the judge can only take into account their conduct through the lawsuit, but not their behaviour before the action started being judged [cf. Judgement of Lisbon Appeal Court of 23.6.2005, Urbano Dias, available on
www.dgsi.pt ].
Considering the premises of bad-faith litigation and beyond what resulted from the incidental condemnation of the defendant Goncalo Amaral in the dispatch of May 20, 2014 (pp. 2024-26), there is nothing to reproach on that basis.
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Given the above, on balance of fact and law, the decision is to :
I. judge remedied the representation irregularity of the claimant MADELEINE BETH McCann in accordance with article 29, paragraph 1 of the Code of Civil Procedure and, therefore, to dismiss the objection raised by the defendant GONCALO AMARAL .
II. declare partly proceeding the claims made in the main action by the claimants KATE MARIE HEALY MCCANN and GERALD PATRICK MCCANN against the defendant GONCALO AMARAL and, to that extent, condemn the second to pay to each of the first the indemnity amount of 250.000 € increased by default interests at the rate of civil interests, since January 5, 2010 until full payment.
III. dismiss the other requests, made in the same action by the claimants KATE MARIE HEALY MCCANN and GERALD PATRICK MCCANN against the defendant GONCALO AMARAL and of those claims acquit the defendant.
IV. fully dismiss the requests, made in the same action, by the claimants MADELEINE MCCANN, SEAN MICHAEL MCCANN and AMELIE EVE MCCANN against the defendant GONCALO AMARAL and of those claims acquit the defendant.
V. judge partly proceeding the demands expressed in the attached action by the claimants KATE MARIE HEALY MCCANN and GERALD PATRICK MCCANN against the defendants GONCALO AMARAL, GUERRA&PAZ,EDITORES,SA and VC–VALENTIM DE CARVALHO-FILMES, AUDIOVISUAIS, SA, and to that extent :
a) prohibit the defendants Goncalo Amaral and Guerra&Paz Editores, SA of selling the book Maddie – A Verdade da Mentira and condemn them to collect, for delivery to the claimants, within sixty (60) days after the res judicata (definitive sentence), the copies of this book that still remain in book-stores, other retail outlets, and warehouses.