There's a lot of misinformation flying around about this. Kimmage is not suing Pat and Hein in any sense. And it's really quite wrong to call it a "counter-suit" as
CyclingNews are calling it.
The now-dormant lawsuit of
UCI, McQuaid and Verbruggen v. Kimmage is a private civil action seeking damages (money) for losses to reputation - i.e. one set of private parties suing another private party for losses arising from that party's wrongdoing. In contrast, what Kimmage's lawyer's letter announced today is simply that he is filing a complaint of criminal activity with the nearest office to Aigle (home of the UCI) of the Swiss prosecution service in the canton of Vaud. His complaint is intended to spur the Swiss state to investigate what he says is criminal activity.
Each canton in Switzerland (there are 26 in total) sets its own criminal procedure. So I can't really say anything about what the prosecution service is obliged to do in response to this letter. Or even whether the activities complained of have any chance of resulting in criminal charges. Frankly, I'd be pretty surprised if anything sticks, criminally, as Switzerland is a signatory to the European Convention on Human Rights which protects the freedom of speech.
The real benefit to this step, is that it's cheap and Kimmage risks virtually nothing in taking it. If he had filed a true counter-suit, seeking money from Hein and Pat, he would have risked having to pay their legal fees if he lost and his defence fund would have been burned through pretty fast. Here, he's only paid for his lawyer's time to assemble whatever evidence he could and paid postage on the letter - the prosecution service will have to undertake the rest of the work to prove the charge. Kimmage also obtains a huge boost to his image among the broader cycling fan community as he's seen as sticking up for the little guys and the whistleblowers, David fighting the proverbial Goliath.
From the limited information available through the media, if I were Kimmage's lawyer, and I thought he could pay my bills, I'd suggest instead that he do everything he can to press forward the other lawsuit brought by the UCI etc. Truth is an absolute defence to defamation in Switzerland, which means Kimmage's defence could very effectively put the UCI's role in all this on trial. He would be given a golden chance to prove corruption, with the powers of subpoena and compelling witnesses like Verbruggen to testify under oath. That's why I've donated my $20 to the fund, and
you should too.
The fact the UCI has backed off on the case in face of Kimmage's defence fund is pretty good support for
the theory that its lawsuit is an example of a Strategic Lawsuit Against Public Participation (SLAPP). It also explains why they didn't sue the
Sunday Times or the websites (
Cyclismas, NYVelocity) that published Kimmage's journalism that Pat found so hurtful. For more on SLAPPs, I highly recommend the introduction to
this extremely well-researched paper [links to PDF].
