‘Qualified privilege’ unresolved after defamation case

What ‘qualified privilege’ allows and doesn’t allow politicians to say outside Parliament remains unresolved after the Hagaman v Little defamation case.

There are questions about whether the judge should have instructed the jury to allow qualified privilege for Labour leader Andrew Little.

While the jury found that Little had made a defamatory statement affecting Earl Hagaman they couldn’t decide whether Little was protected by qualified privilege. And the jury couldn’t decide whether four other statements constituted defamation or not.

Little’s April 2016 statement Auditor-General must investigate Niue deal for donor that I presume is the one the jury found to be defamatory said:

John Key must come clean on how a donor who gave more than $100,000 to his party during a tender process, won a hotel management contract which led to a Government-funded, $7.5million upgrade to the resort, Leader of the Opposition Andrew Little says.

“Today’s revelations about the Scenic Hotel Group and its resort contract in Niue stink to high heaven following its dodgy deals with SkyCity and the Saudi sheep deal.

“It is why I have today written to the Auditor-General asking her to investigate whether Earl Hagaman – who was the largest living financial donor to the National Party – giving money to the party at the same time his company was tendering for the Niue contract was above board.

In May 2016 the Hagamans asked for an apology from Little.  Stuff: Andrew Little refusing to apologise over his comments about a Niue resort deal

Little looks set to face defamation proceedings after ignoring an ultimatum and failing to apologise to the Hagamans.

In a statement from Lani Hagaman she said she would “see Mr Little in court” after he failed to retract and apologise his comments that a Niue resort deal they were awarded “stunk to high heaven”.

Little has written to Hagaman’s lawyers saying he has a “constitutional duty to challenge the actions of the Government over the expenditure of public funds”.

He will address the issues with the Hagamans once the Auditor-General has dealt with his request, either by “concluding an investigation or declining to conduct one” regarding a Niue resort deal.

In September 2016 the Auditor-General found nothing wrong with the awarding of the contract. Stuff: AG clears contract at centre of political donations row

The Auditor General has found there was nothing unusual about the selection of Scenic Hotel Group as the operator of a Niue tourism resort at the centre of a political row over a six figure donation to National.

Auditor General Lyn Provost said from the available information her office had found there was a standard procurement process with reasoned and documented analysis for the selection of Scenic Hotel Group to operate the resort, and for the subsequent investment of New Zealand international development assistance funds in expanding the resort.

Little is now being sued for defamation by the Hagaman’s after refusing to apologise and retract a statement that the deal “stunk to high heaven”.

Little said in a statement the limits to Provost’s mandate meant she was unable to address the key issues he had raised.

“I have a duty as Leader of the Opposition to raise questions in the public interest and respond to media stories on the use of public funds.”

He would not comment further as the matter was before the courts.

No apology, in fact Little questioned whether the Auditor-General had addressed the issues he raised.

Then just over a week before the defamation was due to go to court Little issued via a media a statement an apology of sorts – Statement re Earl Hagaman

It was a matter of public record that Mr Hagaman had donated $101,000 to the National Party in that same month. This generated considerable media interest. As Leader of the Opposition, I considered I had an obligation to respond to media questions on the issues which related to government actions. I referred the matter to the Auditor-General because I believed the public was entitled to be reassured. My focus was, and has always been, on holding the Government to account.

Throughout, the Hagamans have vigorously maintained there was no connection between the award of the contract to Scenic and Mr Hagaman’s donation. The Auditor-General did not establish any connection.

In those circumstances, I thought the matter should be resolved. Over the last three months, I have made a serious effort to do that. Today I want to publicly apologise unreservedly to Mr Hagaman for any hurt, embarrassment or adverse reflection on his reputation which may have resulted from my various media statements. I have offered that apology to the Hagamans. I have also offered to make a substantial contribution towards the Hagamans’ costs; an amount I am advised, was greater than would likely have been awarded by the Court.

I want to make it clear that the object of the criticism was the actions of the National government and that I intended to reflect no impropriety on the part of Mr Hagaman. I accept that no connection has been established between the donation and the award of the management contract and the hotel upgrade.

So Little accepts that no connection was found between the donation and the contract – in other words, his accusation was unfounded. And he apologised unreservedly “for any hurt, embarrassment or adverse reflection on his reputation”.

In court Little also apologised – RNZ: Andrew Little defends efforts to settle defamation case

Mr Little told the court he accepted the Hagamans were entitled to an apology, and letters were exchanged between his lawyers and the Hagamans about that.

“As I’ve said, once the Auditor-General did her inquiry, I accepted her conclusion there was no impropriety and I was happy to give them a public apology.

I can find no indication that Little accepted the A-G’s finding, in fact he said “she was unable to address the key issues he had raised”.

Mr Little said he was sorry for any hurt he had caused the Hagamans, and apologised to Lani Hagaman in person in court today.

“I apologise for the words … causing you hurt and I stand by the efforts I’ve made to resolve this matter,” he said.

So Little acknowledged causing hurt and apologised.

Despite this the jury found that Little had not defamed Lani Hagaman, but they did agree he had defamed Earl Hagaman. Little’s defence was that he had qualified privilege.

In summing up Judge Karen Clark had said that qualified privilege was a defence that Little could use – from Stuff:

The onus was on the Hagamans to prove that Little’s comments had the meaning they claimed and that they were defamatory.

…the Hagamans were only required to prove their case on the balance of probabilities, not beyond reasonable doubt as in a criminal case.

The “crucial first step” to identify the meanings of Little’s words, as ordinary, reasonable person would understand them.

If they agreed with the Hagamans’ interpretation of the phrases, they then had to decide whether they were defamatory and had lowered their reputation in the eyes of right-thinking people.

Clark said she had ruled that Little’s comments were protected by qualified privilege as he had a duty, “whether legal or social or moral”, to comment.

However, that defence could be “defeated or effectively negated” if the jury found his comments were predominantly motivated by ill will targeted directly at the Hagamans, or if he had taken improper advantage of his privilege.

This could be legally contentious. Nick R, who I believe may be a lawyer, stated at Kiwiblog:

Earl Hagaman might yet be able to appeal the decision to allow the qualified privilege defence to go to the jury.

This is common law qualified privilege, and it is far from clear that the Judge was correct to allow it in this case. But whether Mr Hagaman appeals that is another question.

Defamation actions against politicians are not common, and this may be without precedent.

Asher Emanuel sat through the trial and wrote at The Spinoff in Watching the Hagaman-Little defamation trial, it felt like everybody lost:

Throughout the trial both sides hinted or at times plainly stated the other side was politically motivated. But wasn’t this Little’s job, as an opposition politician, to be critical of the government and its supporters?

Actually, that’s sort of what the Judge ruled, allowing Little to raise a defence which hadn’t been applied before in a similar situation in New Zealand or, as far as I am aware, in countries with comparable defamation law.

So it may be a legal first.

Little couldn’t be liable for defamation when speaking as leader of the opposition on a matter of public interest and on which questions were being put to him. (With the condition that he could be liable if he took improper advantage of the occasion or was mainly motivated by ill-will towards the Hagamans, both of these being questions for the jury.) In the arcane language of defamation law, he was speaking on “an occasion of qualified privilege”.

In summary, Little made at least one statement making unfounded allegations that he concedes hurt the Hagamans, and he has apologised for that.

The jury found that one statement was defamatory (they also found that one wasn’t and couldn’t agree on four others). A jury majority couldn’t decide whether the defamatory comment was covered by qualified privilege.

This was not a clear conclusion.

And the judge broke new legal ground allowing qualified privilege.

Lawyers often like to test new precedents in higher courts to get a definitive ruling on it.

However it was said in court that Earl Hagaman is dying, so he may not want to take this matter any further. He may not survive long enough to see it through if he did.

But if it did go to another trial or an appeal it may bring some clarification to what is currently a confusing situation on qualified privilege.

It would be beneficial for potential targets of defamatory comments, and for politicians, to know where the law stands on qualified privilege. At this stage it remains unresolved.

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85 Comments

  1. Tipene

     /  April 11, 2017

    If the case against Little couldn’t even make the shallow puddle-depth civil threshold of “balance of probabilities”, then I’m surprised it took 13 hours for the Jury to deliberate anything.

    Whose probabilities are attempting to be balanced?

    The subjective perspective of each jury member?

    Another reason why Defamation cases should be in the exclusive realm of Judge-alone trials.

    Reply
    • duperez

       /  April 11, 2017

      Are the subjective perspectives of each jury member pertinent to every trial?

      You have already said the complexities in such as the Little case are beyond lay people.

      While the decisions in cases like this are finite and may be significant, the perspectives of the great unwashed, illiterate, lay people are applied to many of the complexities of life. They are measured by public clamour and polls and subsequently acted on. Ignorance is no handicap in ruling the world or being used by others seeking to do that.

      Reply
    • Absolutely. No way can juries be realistically expected to leave political affiliations aside.

      Reply
      • Personally, I find down ticking most gratifying.

        On this subject, I’d be prepared to bet that the most likely to use their jury position politically, would also vehemently disagree with the assertion of political animals being unable to leave their feelings aside.

        Reply
        • Kitty Catkin

           /  April 11, 2017

          It’s a gross insult to say that lay people qua lay people are unwashed and illiterate. Most of us are not lawyers, most of us are neither unwashed not illiterate..

          Also that juries can’t be expected to leave political affiliations aside. These statements were either defamatory or they were not. The language was intemperate and we were given to understand that the Hagamans had bought a contract with a donation, or at least paved the way to it. If juries can’t possibly be expected to judge something on merit, there is little point in having them.

          Reply
          • Blazer

             /  April 11, 2017

            I can confirm that you are not…illiterate.

            Reply
          • duperez

             /  April 11, 2017

            Of course I agree with your sentiments about lay people not being unwashed and illiterate. I was having a dig. We’re experts an everything, from problems of the Middle East and how to solve them, American politics and how to sort that out, education, and organising our own society to best advantage. The simple matter of listening to the sides and angles of the Hagaman/Little business and coming up with what we think according to the rules is small beer.

            Reply
        • Conspiratoor

           /  April 11, 2017

          Trav, I have a delightful story about the downticking fetish on this blog. I have warmed the late night audience up with a brief teaser and now need to deliver the sequel. Believe me it will be worth the wait…

          Reply
          • Blazer

             /  April 11, 2017

            nothing like …true confessions….I ..guess.

            Reply
            • Kitty Catkin

               /  April 11, 2017

              Is this a confession from the PDT ?

            • Kitty Catkin

               /  April 11, 2017

              The PDT has no sense of humour.

            • Conspiratoor

               /  April 11, 2017

              I think even you will enoy a quiet chuckle my dear old thing. And No, not in any way a confession. I don’t do downticks, except for that very rare occasion known only to the late night audience. More a reflection on where we stand on the evolutionary scale

            • Gezza

               /  April 11, 2017

              Shit, I can’t find my ticket❗️ The bloody show’s been postponed for so often. They might be under the unpaid bills. I’ll have to look.

            • patupaiarehe

               /  April 11, 2017

              Something like this C???

            • Conspiratoor

               /  April 11, 2017

              G, have you ever considered a career…oh never mind. You know full well the sequel demands the presence of your good self, pat and moi …and the clock must have struck 10 – a rare combination of events

            • patupaiarehe

               /  April 11, 2017

              Guess I’ll have to stay up late then, for a change 😉

            • Conspiratoor

               /  April 11, 2017

              Very good pat. And G, I sense you are being a little …mischievous tonight

            • Gezza

               /  April 11, 2017

              C, not at all, just being me. There are *some people* who seem to think if I say good morning I’m being provocative. 😕❓

            • Conspiratoor

               /  April 11, 2017

              There is a lot of power in the emoji G. Use them wisely

            • Gezza

               /  April 11, 2017

              👍 ☯

            • Anonymous Coward

               /  April 11, 2017

              If you right click the emoji and “open image in new tab” their power is greatly magnified.

  2. Bill Brown

     /  April 11, 2017

    Regardless of the outcome the trial has highlighted issues of credibility for Little. In a year where the election stakes are high and the race is looking tight, being caught on this sort of stupidity does Labour no favours – he looks arrogant. Little already suffers not being a true inspirational type of guy and who would want that as a PM. Not me.

    The Hagamans have always been an interesting lot as I recall some years back in the NBR Rich List that Earl Hagaman was annoyed they got his worth a little low and offered up the books show he was worth more. He’d be the only man ever to do that I suspect

    Reply
    • Blazer

       /  April 11, 2017

      so do you find English….inspiring?If you do,you may be in a minority…of…one.

      Reply
      • We dint all want inspiring blazer. Some of us prefer the think before you mouth off model though. We’ll all see which one we want soon enough won’t we.

        Personally and unsurprisingly, I’ll be constituency voting Seymour and very optimistically party ticking for the Bill English Nats.

        Reply
        • Just had to tick myself to make up for the imbalance. Blazer, how many ticks do you allow yourself per post😬?

          Reply
      • Bill Brown

         /  April 11, 2017

        @blazer – no Bill I don’t find inspiring either but perhaps a steady hand on a rocky ship, but the jury is out on that to so far. When Labour lost Helen they slumped and I’d say no John will hurt the Nats. Love or hate either of their politics they both knew the game and for the most part had the respect of the country which I believe was evident when voters changed sides when it became more about who was better suited to lead – I voted for Helen once as I simply did not see National as viable at that point

        Reply
        • Blazer

           /  April 11, 2017

          ‘Rocky ship ‘ so not a rockstar economy. ..then?

          Reply
          • Bill Brown

             /  April 11, 2017

            Not to rock star at the moment that’s for sure. That’s in my view of course.

            Reply
  3. Blazer

     /  April 11, 2017

    defamation cases are rarely clear cut.You only need to look at the Karam cases and the Lange case.In reality they are the sole domain of the wealthy,who use them as threats and to silence detractors who cannot afford the contest.

    Reply
    • Largely agree there..especially the dreadful man you mentioned that wasn’t Lange.

      Reply
    • Bill Brown

       /  April 11, 2017

      The bar is set pretty high on defamation- it’s hard to get over the line – especially with honest held belief

      Reply
      • Kitty Catkin

         /  April 11, 2017

        I dunno-if I said that X was a pervert who downloaded kiddyporn, isn’t that obviously defamation ?

        Reply
        • Anonymous Coward

           /  April 11, 2017

          Said like that it is a “statement of fact” and therefore defamation (if it’s not true). If you said ” in my opinion…” or some such thing it probably wouldn’t be.

          Reply
        • Gezza

           /  April 11, 2017

          – Media Release –
          Gezza
          Leader of the Sewdish Party

          “In my opinion, X is a pervert who downloaded Kiddie porn.”

          Nope, AC, I reckon I’d still be pushing my luck & likely to end up in Court if I didn’t have the evidence.

          Reply
          • Blazer

             /  April 11, 2017

            what about the entity responsible for disseminating the information,are they ..liable..too?

            Reply
            • Gezza

               /  April 11, 2017

              In X’s case, I expect the publisher’s lawyers & mine would be meeting in the editor’s office & sweating a bit, yes.

          • Anonymous Coward

             /  April 11, 2017

            read that site i’ve linked to elsewhere.

            Reply
            • Kitty Catkin

               /  April 11, 2017

              Yes,, I wonder how far ‘In my opinion/I believe that…..’ would go towards ameliorating the ‘pervert who has downloaded kiddyporn’. It’s quite possible that that loophole has been closed up, but it would be interesting to know.

              If Gezza told me that X had done this, and I said that I had heard that…I suspect that X might still have a case against me.

          • Gezza

             /  April 11, 2017

            To be safe, from what I see, AC, I would have to have the evidence. My scurrilous media release naturally made in the public interest because X has a few beers with the PM on a regular basis, has to be supported by a sufficient basis of provable facts. So if X has taken umbrage, & I have nothing to prove he downloaded kiddie porn, I would be expecting to receive a letter from his solicitor requesting an abject publc apology at my earliest possible convenience, or more likely, at X’s earliest possible convenience – or accept X’s invitation to place the matter of whether I have defamed him before a Court for consideration as to whether I should be given a whack about the neck & ears (metaphorically speaking) & possibly have to pay X for the privilege.

            Reply
            • Kitty Catkin

               /  April 11, 2017

              I have had a quick look online, and it seems to come down to erring on the side of discretion. Even eliipses can count. ‘X download kiddyporn ? Never…..of course not…..would X do that ?’

              Poor X.

              A music teacher in Palmerston North was defamed-the usual thing-and every person who’d repeated it was made to publish an apology in the paper.

  4. Gezza

     /  April 11, 2017

    So, the situation seems to be that Little has been found to have defamed Earl Hagaman.

    What needs to be now established is whether “qualified privilege” permits a politician to defame someone. Have I got this right?

    Reply
    • Blazer

       /  April 11, 2017

      not quite,the specific defamation referred to only stands if qualified privelege is not an allowable defence…..if it is,there is no ..defamation.

      Reply
      • Gezza

         /  April 11, 2017

        To me, it highlights the difference sometimes between legal & logical.

        Reply
      • Gezza

         /  April 11, 2017

        Don’t see why someone downticked Blazer for that reply. It’s correct as I understand the law.

        Reply
        • Don’t you worry about blazer – his very own down ticking has nothing of the 😇
          objective about it.

          I prefer down ticks myself. There is a coterie here, or maybe one or another, or perhaps a primary school child with a lot of time on their hands, who down ticks everything I say. I love it. I’d probably never come here but for the constant disapproval Gezza.
          😈😈😈

          Reply
          • Gezza

             /  April 11, 2017

            👍 I only ever downtick you when you thoroughly deserve it trav. ❤️

            Reply
            • Onya Gezz. That’s almost daily for moi. I’m more the occasional decently constructed and thoughtful post, versus a plethora of unadulterated crappolata.

            • Gezza

               /  April 11, 2017

              I’m not a great fan of pasta either trav.

            • Anonymous Coward

               /  April 11, 2017

              crappolata isn’t pasta G. It’s a small sausage made of poo.

            • Gezza

               /  April 11, 2017

              Looking forward to a Nelly recipe for that one.

            • Anonymous Coward

               /  April 11, 2017

              “c**t marinated crappolata with condensed milk sauce”

            • Corky

               /  April 11, 2017

              I just gave Kitty one. Well deserved in my opinion.

            • patupaiarehe

               /  April 11, 2017

              Good god AC! I’m surprised that survived moderation! Perhaps I just have a dirty mind. There is a name for what you’re alluding to, but I think I’d best be keeping it to myself… 😀

        • maybe it’s the use,of,commas,or, lack, thereof, that, confused the tickererdownerer

          Reply
          • Kitty Catkin

             /  April 11, 2017

            The Phantom Down Ticker must have worked out some way to set their computer to automatically down tick some names.. I have had down ticks for totally innocuous remarks.

            Reply
            • Couldn’t help that downtick kitty 😀😀😀

            • patupaiarehe

               /  April 11, 2017

              Me too Kitty. Makes me look around sideways, & wonder who is responsible…. 😉

            • Kitty Catkin

               /  April 11, 2017

              Well, we know who it isn’t 😀

  5. Maggy Wassilieff

     /  April 11, 2017

    PG.
    I think you have done the public a great service with keeping us updated on this Trial and with your attached commentary. I haven’t found better coverage on other blogs or in the MSM.

    Reply
  6. Alan Wilkinson

     /  April 11, 2017

    I’m surprised that Little’s refusal to withdraw and apologise in a timely manner did not void his entitlement to qualified privilege. Frankly I think this judge got it wrong.

    Reply
    • Gezza

       /  April 11, 2017

      I think the issue is a bit trickier than that. As I understand it one of Andy’s arguments was that he was suggesting the government’s award of the management contract to the Hagamans’ company might have been influenced by the donation – without necessarily implying that the Hagamans expected their donation to secure the contract – i.e. that they had *done a deal*.

      Reply
      • Alan Wilkinson

         /  April 11, 2017

        Hard to take that seriously when Little had ample opportunity to clarify if that was his intended meaning and didn’t take it. I think the judge bent over backwards to rescue Little.

        Reply
    • Alan Wilkinson

       /  April 11, 2017

      If you compare this case with the Katy Hopkins case in the UK recently it is hard to believe they are applying the same common law.

      Reply
    • Kitty Catkin

       /  April 11, 2017

      You’re JOKING.

      The delay in the Claytons withdrawal and apology would surely weaken the QP defence.

      Reply
  7. Anonymous Coward

     /  April 11, 2017

    “And the judge broke new legal ground allowing qualified privilege.”
    Did he?
    Qualified Privilege is a fairly common defense.
    If you flick through the cases here it pops up a lot. In 2 out of 2 cases for 2017, and even in Williams v Craig in 2006.

    http://www.defamationupdate.co.nz/2017

    Reply
  8. Patzcuaro

     /  April 11, 2017

    This from Andrew Geddis at Pundit sums the issue up well:

    http://pundit.co.nz/content/in-qualified-praise-of-the-andrew-little-defamation-verdict

    Reply
    • It merely proves my ping that nobody can remain the political fence. I’ve never seen anything much about Geddia that says anything but ” friend of Labour” .

      “But when the story first emerged, it looked like it could be the sort of cash-for-policy exchange that we shake our heads at in other countries that do not enjoy our low-corruption reputation. The sort of arrangement that we take great pains to ensure cannot happen in our governing practices.”

      What tosh and piffle. The parliamentary and party wings of National have NEVER shown or illustrated anything of the sort he talks about and people know this; he’s been watching too much West Wing. A prudent person would have done a lot more investigation before shooting his angry mouth off, and one of integrity would have apologized unreservably. He is clearly neither. I didn’t have a particularly bad opinion of him, ( I respect his music choices), but he’s not a man I could trust now. Interesting to see how others feel in the next Preferred PM poll

      Reply
      • Blazer

         /  April 11, 2017

        Do behave Trav.He touches on the SKC deal and Murry’s Saudi sheep deal.They both raise the eyebrows of ….objective scrutiny.

        Reply
      • patupaiarehe

         /  April 11, 2017

        Interesting to see how others feel in the next Preferred PM poll

        SNORT! You mean he might be the least popular choice, Trav? 😀 😀 😀

        Reply
        • Hell no P, he might have gone up in estimations. People like naughty boys who get off – er, well you know what I mean 😣😣😣

          Reply
    • Gezza

       /  April 12, 2017

      “Having read all of this, can I now suggest you have a listen to Ursula Cheer’s discussion of the legal issues in the case on Morning Report?)”

      I clicked on Geddis’s link mistakenly thinking Ursula was Urzila Carlson.It was still worth a listen anyway, & even Ursula seemed to be disappointed with the case in some ways.

      Reply
      • I think lawyers without political leanings will have been disappointed because it was very inconclusive.

        I suspect that Cheer and Geddis would love this to go to appeal so the Court can look more closely at when qualified privilege can be used as a defence.

        Reply
  9. Blazer

     /  April 12, 2017

    one thing that is conclusive-,the right and all those baying for Littles blood are …extremely…disappointed.

    Reply
  1. ‘Qualified privilege’ unresolved after defamation case – NZ Conservative Coalition

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