MacGregor found not to have breached confidentiality agreement

The Human Rights Review Tribunal decision (MacGregor v Craig [2016] NZHRRT 6) has determined that Rachel MacGregor did not breach the confidentiality agreement made with Colin Craig in a Human Rights Commission mediation process.

The decision found that Craig seriously breached the confidentiality agreement a number of times and made a record award of damages against Craig totalling $128,780.

The Tribunal acknowledged that it wasn’t unreasonable for Craig to assume MacGregor was involved in breaching the confidentiality agreement he later conceded that she hadn’t breached it herself, that had been done against her express wishes by Jordan Williams.

[7] A few weeks after the settlement Mr Craig became aware evidence relating to Ms MacGregor’s sexual harassment claim had apparently come to the attention of some of the members of the Conservative Party Board. On 8 June 2015, in a media interview held in a sauna, Mr Craig was asked whether he had had an affair with Ms MacGregor. Other media enquiries in similar terms followed and a poem written by Mr Craig and sent by him to Ms MacGregor appeared on the Whale Oil blog.

[8] Believing Ms MacGregor was, contrary to her obligations under the settlement, leaking confidential documents sent to her by Mr Craig, Mr Craig decided to correct the information which had thus been made public. Rather than cancelling the settlement agreement Mr Craig embarked on a course of action which he knew would result in himself breaching the agreement. That course of action included calling a press conference on 22 June 2015, media interviews on the days which followed (23 and 24 June, 30 June and 10 July 2015) and distributing a letter to almost every member of the Conservative Party. In addition, on 29 July 2015 he held a further press conference to launch a booklet denouncing dirty politics and announcing legal action against Mr Cameron Slater (proprietor of the Whale Oil blog), Mr John Stringer (a member of the Conservative Party Board) and Mr Jordan Williams. The booklet was distributed widely throughout New Zealand.

[9] Mr Craig accepts that on each of these occasions he breached the confidentiality obligation in one way or another but claims justification for doing so on the grounds Ms MacGregor made misrepresentations during the mediation meeting and that Ms MacGregor herself, post 4 May 2015, disclosed confidential documents covered by the settlement. On 31 August 2015 (a month after the present proceedings were filed) Mr Craig purported to cancel the settlement agreement pursuant to s 7(3) of the Contractual Remedies Act 1979.

[47] In these circumstances we conclude the confidentiality stipulated in the “Mediation meeting confidentiality agreement” signed by Ms MacGregor and Mr Craig on 4 May 2015 and reinforced by s 85 of the Act covered all of the matters discussed and agreed to at the mediation meeting, specifically the sexual harassment claim, the financial issues, the settlement and the two components of that settleme

[53] It was against this background that Mr Craig at least initially argued (prior to Mr Jordan Williams giving evidence) that both prior to and during the mediation Ms MacGregor had not been truthful about what she had already disclosed to others about her sexual harassment claim and the persons to whom such disclosure had been made. In addition Mr Craig believed she and Mr Williams had been working in unison in leaking the confidential documents to the Board, media and others.

[54] However, in closing submissions it was conceded by Mr Craig there was no basis on which the Tribunal could find on the evidence given by Ms MacGregor and Mr Jordan Williams that Ms MacGregor had consented to the release of the documents relating to her sexual harassment complaint against Mr Craig. In our view this concession was properly made. Ms MacGregor was an honest witness whose evidence was largely supported by the evidence given by Mr Bevan and none of the witnesses who gave evidence claimed they had received confidential information from her. Indeed she declined to speak to the Board or to the media about the sexual harassment allegations and the circumstances of her resignation. We accept her evidence in its entirety.

[119] It is difficult to see any basis for criticising Ms MacGregor’s conduct. With the exception of the single tweet of 22 June 2015 (of which Mr Craig made nothing) she has at all times adhered to the settlement and confidentiality obligation. It was conceded by Mr Craig in closing there was no evidence to support his initial allegation that she consented to or assisted in the release to third parties of highly confidential documents relating to Mr Craig and her sexual harassment complaint. Even when provoked by the 22 June 2015 media conference, the responsible step taken by her was to issue (through Mr Bevan) a media release to the effect that because she was bound by the confidentiality agreement she would be unable to correct factual inaccuracies in Mr Craig’s statement until Mr Craig confirmed that should she do so he would not take legal action under the agreement.

[122] In mitigation his main points were:

[122.1] He did not cause the leak of confidential information which turned unsubstantiated rumour into what was purported to be documented fact. Mr Craig was the target of the leak and tried to defend himself in an unprecedented situation.

[122.2] The leak put him under enormous pressure as his political career and many friendships unravelled.

[122.3] His belief that the confidential material could not have ended up where it did without Ms MacGregor’s consent or at least tacit approval was understandable.

So while it is understandable that Craig was suspicious of MacGregor being involved in breaching the confidentiality agreement the Tribunal stated “We accept her evidence in its entirety”. 

Craig jumped to an incorrect conclusion, and his actions in response were inappropriate, they seriously breached the confidentiality agreement, and caused significant harm to MacGregor as a result.

MacGregor was a victim of this and was awarded record damages as a result.

 

 

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