Slater explains Craig’s appeal problem

Bill Hodge, expert on defamation, has called the award of $1.27 million in damages against Colin Craig as “breathtaking, eye-watering and mind-boggling” and that it is potentially a landmark moment in New Zealand defamation history.

NZH: Craig’s ‘breathtaking’ $1.3m defamation damages could set New Zealand record, says legal expert

A Kiwi defamation expert says the $1.3 million in damages former Conservative Party leader Colin Craig has been ordered to pay Jordan Williams is “breathtaking” and could make legal history.

In what could end up being the largest sum ever paid in a Kiwi defamation case, Auckland University Associate Professor of Law Bill Hodge says yesterday’s decision is a landmark moment.

Describing the $1.3m sum as incredible, Hodge predicts legal experts around the globe will be tracking the case – which he thinks is far from over.

“It’s breathtaking, eye-watering and mind-boggling. These are all the adjectives I would use to describe the amount,” Hodge said.

Hodge says he expects the Craig decision will also be appealed in a notoriously complex and expensive area of New Zealand law.

“There will be an appeal,” Hodge said. “The legal issues are extremely significant because it’s the equivalent of a self-defence response.

“It’s a difficult area, defences in defamation particularly. It needs further examination as to the extent that someone can ‘hit back’.

“My personal opinion is that the jury decided Craig went over the top with his response. He might have had a legitimate response if it was measured and in the appropriate form.

“It’s a bit like he was slapped by Jordan and he pulled out an automatic weapon and fired all his shots.”

Cameron Slater, who is lining up his own defamation case against Craig and I think has attended the whole of the proceedings in Williams v Craig, has posted a number of times on it since the jury announced their finding.

One of his best explanations of the problems Craig face with appealing the jury decision was actually in a comment on one of these posts, Why Colin Craig is pissing in the wind.

Here is the problem. The jury was given what is called a Question Trail. That is a trail of questions they need to answer in a logical manner to step them through the legal complexity of defamation law. The judge spent two hours summing up and directing the jury on how to use this Question trail to come to their decisions.

The Question Trail was drafted by Craig’s lawyer, then approved by Jordan’s lawyer and then finally by the Judge. Mills drafted the Question Trail to start with the defence if Qualified Privilege, then move to truth when that failed and then to honest opinion after that.

The Question trail contained 14 questions, and there were two counts so the jury had to step through 28 questions and write up their reasoning beside each one and hand that tot eh judge after the verdict was given.

The first few questions stepped through qualified privilege. They would not have been required to step through any more questions if the jury had considered qualified privilege and decided it applied. They clearly passed through those questions after quite some time…they deliberated for 10 hours.

They also stepped through the truth and honest opinion and came to the conclusion that Colin Craig HAD defamed Jordan Williams.

Further they considered the defamation to so extreme, so outrageous and so deliberate that they decided to award punitive damages against Craig.

When this gets to the Court of Appeal Craig is going to find the judges will look at the punitive damages and decided accordingly. Same with the qualified privilege argument. Mills knows they considered it, he would have known that after the jury retired for the night the first day. After that he would have been counselling his client to prepare for a loss.

Why?

Because in his closing argument he spent precisely two and half minutes explaining to the jury the truth defence, 5 minutes on honest opinion and a massive 40 minutes on qualified privilege. Craig was totally and utterly relying on qualified privilege.

For those who don’t know qualified privilege can be lost. Firstly if you were motivated by ill will in your response. The evidence was clear on that. Colin was motivated by ill will and the jury must have agreed.

I think ill will is still debatable. The jury does seem to have agreed that it was ill will, and I haven’t heard all the evidence, but I think Craig’s motivation is possible more complex than simple ill will.

The second was to lose qualified privilege is the breadth of the response. Jordan Williams spoke to about 5 people about Craig, Craig thought an appropriate response was to call him a liar in 1.6 million booklets delivered nationwide. Now you can see why the jury decided he lost qualified privilege.

While Hodge and a number of others have agreed that the 1.6 million pamphlets look like an inappropriate response – I have always thought they were an inappropriate response since they were sent out – I think the key is whether it was disproportionate enough to justify a massive award.

Slater understates Williams actions – “Jordan Williams spoke to about 5 people about Craig” omits a key detail, one of those who Williams spoke to and gave evidence to was Slater, and that is almost certain to have been in the knowledge that Slater would post about it on Whale Oil. In court it was claimed that Williams threatened exposure via Whale Oil when asking Conservative Party officials to dump Craig.

So the comparison is “1.6 million booklets delivered nationwide” versus “speaking to “about 5 people” plus publication on Whale Oil, which has a significant readership and Williams and Slater will have known and probably hoped that mainstream media would pick up what was posted about Craig and give it wider publicity.

“1.6 million booklets delivered nationwide” is still greater than posting on line and getting widespread news coverage, and Craig also sought news coverage through his press conference, but is quite a bit closer than Slater implies. Still inappropriate, over the top and quite possibly still over the legal line as far as defamation goes, but the degree of excessiveness could be debated in Court of Appeal, along with the amount of the damages.

That left truth as a defence, which was gone the moment you examine the Mr X interview. And honest opinion was forlorn as well.

Colin Craig will likely appeal this, but he is also likely to lose that appeal.

It sounds like Craig intends to appeal. If he does I think it’s quite likely it won’t be fully successful, but I think the chances of an adjustment in the amount of damages are quite high.

But Williams advantage is that he will start an appeal process from a very high point. Even if the award was halved or even quartered it would still be substantial, especially if costs are also awarded against Craig.

Also up for debate, although I don’t know whether this will be covered in any appeal, is what sort a reputation Williams had and how much it could be reduced by Craig’s actions. How much was Williams’ reputation damaged by what Craig published, versus how much his reputation was confirmed by what was revealed in Hager’s ‘Dirty Politics’ (which has never been tested in court) and what was revealed in court.

Both the legal actions and the debate on this are probably far from over.

12 Comments

  1. A difference between criminal law and civil law has pointed out by various people.

    If Craig had punched Williams and then stomped on his head he may have been discharged without conviction as a conviction may have affected his career.

    At worst he presuming it would have been a first offence he would have received a non-custodial sentence as long as he wasn’t facing manslaughter or murder charges.

    • Alan Wilkinson

       /  October 2, 2016

      Time more of these thugs were prosecuted for civil damages then.

      • Kitty Catkin

         /  October 2, 2016

        CC can defame me for $1,27.000 if he likes. It would be like winning Lotto.

        • Klik Bate

           /  October 2, 2016

          First he’d have to want to kiss you Kitty o_O

          • Kitty Catkin

             /  October 2, 2016

            He can kiss me for that amount-only on the hand or the cheek, of course, nowhere else.

            If he wanted to kiss you for $1,270,000 would you let him ?

            • Gezza

               /  October 2, 2016

              I heard on Q&A today that Her Honour can yet decide to reduce the amount (I doubt she would increase it), so there may be further fun to come from the judge.

            • Gezza

               /  October 2, 2016

              Correction, I think it might have been on The Nation that I heard that.

            • Klik Bate

               /  October 2, 2016

              Well….okay, you got me there.
              But NO French kissing!
              You’d just never know where Col’s tongue had been 😛

            • Kitty Catkin

               /  October 3, 2016

              Hand or cheek only, not the lips-unless it was specified that there’d be NO FRENCH KISSING. If there was ‘by mistake’, the amount would be doubled.

              How much would you have to be given to let Donald Trump French kiss you ? 😀

            • Klik Bate

               /  October 3, 2016

              Would you be keen on making it a threesome? 😮

  2. Joe Bloggs

     /  October 2, 2016

    Much as I value Slater’s deep and broad knowledge of the law (snort), I’m inclined to give more credence to those with formal training, qualifications, and professional standing in the law.