Hagaman v Little appeal rejected by Supreme Court

The defamation case Hagaman v Andrew Little has reached a conclusion in the Supreme Court, where an appeal on behalf of Earl Hagaman has been rejected.

In April 2017 a jury could not decide on some claims in a defamation case brought by Earl and Lani Hagaman against then Labour Party leader Andrew Little. The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

An appeal was filed, but not long after the trial (25 May) Earl Hagaman died.

Since then Lani Hagaman has tried to argue that an appeal should survive Mr Hagaman’s death, but has failed.

The Supreme Court ruling follows a Court of Appeal judgment in November:

[1] Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.

Background

[2] Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to
upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six
public statements.

[3] The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege. The jury were agreed that
Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.

[4] The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.

[5] The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5. Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?
[YES]
6. If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?
[YES]
7. If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the first named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?
[NO ANSWER]
8. If the answer to issue 7 is “Yes”, then assess:
(iii) General damages $
(iv) Exemplary damages $
[NO ANSWER]

[6] The practical question we must decide is whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. We will now explain why this point matters.

When does an appeal in a defamation claim survive death?

[7] The old common law rule was that personal actions in tort (including defamation) abate upon the death of the plaintiff (or the defendant): actio personalis moritur cum persona. The rationale for the rule is that such an action is personal to the victim and his or her tortfeasor, and should not devolve to their estates. Professor Pollock called it a “barbarous rule”. The effect of the rule, as we will see, rather depended on the stage the claim had reached.

[8] The rule was abolished in part by statute in 1936, permitting the continuation of an action despite the death of a party.

[9] Defamation is excluded from the reforming effect of s 3(1). That simply means that the reform (creating a new statutory survival rule for other torts) does not apply to it. For defamation the old common law rule continues.

[10] Whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached.

Does Mr Hagaman’s appeal survive his death?

[14] We are concerned only with the second cause of action. Mr Tizard for Mr Little submits there is neither verdict nor judgment on that cause of action. It follows it has abated and the appeal must be dismissed. Mr Fowler QC for Mr Hagaman’s representatives submits that although there is no judgment, the cause of action does not abate because there is at least a verdict. He submits that the jury answers constitute a special verdict finding that Mr Hagaman was defamed by Mr Little.

[15] A special verdict is one where the jury is asked to respond with answers to a series of questions rather than simply stating whether they find for the plaintiff and in what amount.

[16] But an incomplete set of answers will not amount to a verdict for one party or the other. A verdict is a conclusive determination of all factual issues within a cause of action, for one party or the other. The verdict can then be perfected by entry of judgment. In defamation a verdict for the plaintiff must include the jury’s award of damages; otherwise it is incomplete and void.

[17] It is evident that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. This produced verdicts for Mr Little on the causes of action alleged by Mrs Hagaman. It also produced verdicts for Mr Little on the fifth and sixth causes of action alleged by Mr Hagaman. Here the jury, asked questionse, answered either that the words did not bear the meaning alleged or that the meaning was not defamatory. That meant, as the question trail makes clear, that the jury had no more work to do. The answers were complete, even though not all questions had been answered.

[18] The same cannot be said of the second cause of action. The jury’s work was incomplete. Having answered the first two questions affirmatively, they had to go on and answer the third. But they could not agree on it. That is not a special verdict, because there is no conclusive answer on that cause of action. No judgment upon it could be pronounced.

[19] It follows that no verdict was given on the second cause of action. It therefore abates with the death of Mr Hagaman. No appeal may now be advanced upon it. As the whole of the appeal is confined to that cause of action, it also follows that the appeal itself must be dismissed.

Result

[20] The appeal is dismissed.

[21] The appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

This decision was appeared in the Supreme Court. RNZ: Little defamation appeal rejected by Supreme Court

A bid by the late Earl Hagaman’s estate to continue a defamation case against former Labour leader Andrew Little has been dismissed by the Supreme Court.

Mr Hagaman – who died in May last year – and his wife Lianna-Merie sued Mr Little for statements made about a hotel contract.

A jury was not able to reach a conclusive verdict.

Mr Hagaman’s widow tried to continue the case, taking it to the Court of Appeal.

It ruled the case could not continue after Mr Hagaman’s death and the decision was taken to the Supreme Court.

The Supreme Court decision today said the arguments by Mr Hagaman’s representatives were not sufficient to warrant a retrial.

Mr Little has been awarded costs.

So a win and costs award for Little, but it will have (hopefully) been a lesson to him. He will obviously not want to be taken to Court again, especially now he is Minister of Justice and Minister for Courts.

Leave a comment

46 Comments

  1. Blazer

     /  February 14, 2018

    the right verdict…a few here will be very disappointed.Hagemann gave 6 figure donations to National,merely because he…liked them…apparantly.

    Reply
    • Kitty Catkin

       /  February 14, 2018

      If you think that a donation of 6 figures will achieve anything, especially when it’s openly given, you are very ignorant about NZ politics.

      Reply
  2. PDB

     /  February 14, 2018

    Little finally finds someone to beat….a dead man.

    Reply
    • Blazer

       /  February 14, 2018

      Blame the wife ,for continuing the action.As you know Hagemann was still alive when the first trial was decided.How desperate are you…these..days?

      Reply
    • alloytoo

       /  February 14, 2018

      The moral here, is if you’re going to defame, defame a dying man.

      Reply
    • lurcher1948

       /  February 14, 2018

      That’s a low blow

      Reply
      • Kitty Catkin

         /  February 14, 2018

        It’s law that one cannot defame the dead-in the legal sense.

        I dislike this law and think that it should be repealed. Why should someone have scurrilous lies told about them when they cannot refute these ?

        Reply
        • Gezza

           /  February 14, 2018

          What is a dead-in? Is it like a sit-in or a sleep-in?

          Reply
          • Kitty Catkin

             /  February 14, 2018

            Oh, don’t you start.

            What about Maggie and ‘check-out’ ?

            Reply
            • Gezza

               /  February 14, 2018

              See below. Went in wrong place.
              Dunno who Maggie is. Irrelevant. We are discussing your continual misuse of hyphens.

            • Kitty Catkin

               /  February 14, 2018

              YOU HAVE MADE YOUR POINT.

              I would hope that nobody would be so stupid that they would think that two unrelated words were being hyphenated.

              Change the record, the needle’s stuck on this one.

              In other words, get off my bloody back about this. You must have made at least ten posts about it, for Heaven’s sake let it drop.

            • Kitty Catkin

               /  February 14, 2018

              It’s hardly irrelevant when someone who hyphenates ‘check out’ in a sentence beginning ‘Personally I have….’ criticises someone else.

            • Gezza

               /  February 14, 2018

              No need to thank me. Glad to have been of assistance.

            • Kitty Catkin

               /  February 14, 2018

              I’m not thanking you, I am requesting that you stop trying to goad me. I am surprised at you, of all people, nit-picking for so long and being so maddeningly persistent, nagging smugly on and on. It’s worse than Blazer. I really did not expect you to be like this , it’s very disappointing. It’s worse than Corky, even.

            • Kitty Catkin

               /  February 14, 2018

              As I said, GET OFF MY BLOODY BACK.

          • Gezza

             /  February 14, 2018

            You are playing a silly game, aren’t you? You are not as thick as you are pretending to be. I conclude you are deliberately hyphenating words because it’s your weird “thing” to make a deliberate error.

            A dash and a hyphen are two different things in punctuation & typography. You cannot use a hyphen with no space between the words to substitute for a dash. Doing so is a punctuation & typographic error & makes your first sentence in this case a nonsense.

            If you wish to make a dash & cannot create an em dash you must put a space either side of the hyphen. That’s all there is to it.

            Reply
            • Gezza

               /  February 14, 2018

              @ Kitty. Please stop prolonging this nonsense with unnecessary abuse.

  3. robertguyton

     /  February 14, 2018

    “So a win and costs award for Little”
    It just gets better and better for Labour while her critics lose over and over again.

    Reply
    • PDB

       /  February 14, 2018

      Little must’ve been right after all – Jacinda’s dad is a crook! I hope she launches an investigation into ‘dodgy deals’ her father was involved in.

      One news: “It emerged today that the father of Jacinda Ardern, Ross Ardern, is a trustee owner of the resort, and would have helped appoint the hotel’s board of directors, who organised the contract tender.”

      “Mr Little was asked repeatedly by ONE News if his accusations reflected badly on Mr Ardern, but he wasn’t biting, giving the same stock answer every time”

      Embarrassing!

      Reply
      • robertguyton

         /  February 14, 2018

        Bill’s gone, John’s gone, the Government benches have gone; National Party sycophant “PDB” has snapped and spouts tripe and bile with every comment – happy days!

        Reply
        • PDB

           /  February 14, 2018

          So you’ll not be joining me in asking for an official investigation into the matter including Ross Ardern’s involvement? Funny that…

          Reply
          • robertguyton

             /  February 14, 2018

            Go ahead, ask away, PDB, ask and ask till everyone recognises your disfunction – why should I and a handful of commenters here be the only ones to know?

            Reply
      • Blazer

         /  February 14, 2018

        according to your fellow right wingers that post here,you have exposed this blog to defamation proceedings…’Jacinda’s dad is a crook’

        Reply
    • I think it seriously damaged Little’s credibility as leader, added to the pressure he was under last year, and likely contributed to him stepping down.

      Reply
      • Blazer

         /  February 14, 2018

        can’t see the damage.Funded his own defence and was exonerated.Nothing whatsoever to do with him…stepping..down.He had no cut thru,no charisma,and succumbed to star power and ratings.

        Reply
        • Gezza

           /  February 14, 2018

          He was all over the place. He came across as an ineffective humourless whiner. Nobody knew what he stood for – it was all barking at cars.

          Reply
  4. Gezza

     /  February 14, 2018

    Done & dusted. Forgettable now.

    Reply
    • High Flying Duck

       /  February 14, 2018

      Just another squirrel story distracting from politics.
      It’s amazing how many stories like this get the headlines whereas actual policies and decisions made just flow over everyone’s heads.
      Don’t know whether the media is to blame or the public…

      Reply
      • Gezza

         /  February 14, 2018

        It’s the media’s fault. If we want more than worthless opinions from unqualified muppets, trivia, & rehashed press releases we have to go looking for it ourselves & it’s so time-consuming few can be bothered.

        Reply
  5. Blazer

     /  February 14, 2018

    there were a number of contributors here wetting their pants in expectation..Little would ..lose.Suck it up….

    Reply
    • High Flying Duck

       /  February 14, 2018

      He didn’t come out smelling of roses Blazer. But as soon as he stepped down as leader…who cares?

      Reply
  6. Ray

     /  February 14, 2018

    The first and most important rule of law is “justice must be seen to be done”
    The Supreme Court have badly broken this when they give the Minister of Justice a “get out of jail card”

    Reply
    • Blazer

       /  February 14, 2018

      how do you figure that..Ray?

      Reply
    • Gezza

       /  February 14, 2018

      The Supreme Court has applied the law. In this case, as I read it, the Common Law. The jury concluded on one count that Mr Little’s remark was defamatory of Mr Hagaman but could not answer whether Little was motivated by ill-will towards Hagaman, nor whether Little took improper advantage of the occasion of publication. Without an affirmative answer to at least one of those it cannot be defamation.

      The problem is a classic one in this case where the law might appear to some to be an ass, but so was the present Minister of Justice. It was a close shave.

      I think the beard suits him though.

      Reply
    • duperez

       /  February 14, 2018

      So it would only have been justice being done and being seen to be done if it had gone against Little? Because he is now the Minister of Justice, because it was him or because the decision wasn’t right?

      Reply
      • Ray

         /  February 15, 2018

        The present Minister of Justice admitted he had defamed a now dead man, and he gets off because you can’t defame a dead person.
        On the other hand there was the important legal principle of qualified privilege that need defining, the Supreme Court dropped the ball on not getting that defined.
        To an ordinary person (not a Labour supporter) seeing the Minister of Courts getting an “get out of jail ” card doesn’t look like Justice.

        Reply
        • Blazer

           /  February 15, 2018

          I think Barclay refusing to speak to the Police is…worse,and Bill English’s behaviour over the matter was shady…to say the least.

          Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s