Slater awarded costs v Craig, but well short of actual costs

Cameron Slater has been awarded substantial costs in the defamation case between him and Colin Craig, but the amount awarded is well short of actual costs claimed. As Slater is now bankrupt his lawyers may be the ones to suffer the shortfall. Craig will also be substantially out of pocket.

Slater had been found to have defamed Craig, but as Craig had been found to have then ruined his only reputation no damages were awarded.

Summary

Costs judgment in defamation proceeding Craig v Slater [2018] NZHC 2712. 3B costs allocated to Slater as the successful party. Craig succeeded only in proving that he did not place his press secretary, Rachel MacGregor, under financial pressure to sleep with him and that he did not sexually harass another woman. Craig failed on all other significant pleaded causes of action, including particularly the principal allegation that he had sexually harassed Ms MacGregor. Costs award to Slater reduced by 10 percent to reflect Craig’s limited success.
The Court held that costs should lie where they fall in respect of the counterclaim. Craig protected by response to an attack privilege, but Slater succeeded in proving the statements about his journalistic integrity were not true. Because it is difficult to identify precisely those costs incurred by Slater in respect of the counterclaim, a discount of 10 percent applied to reflect those costs lying where they fall.

Mr Slater’s claim for indemnity costs failed because the Court accepted that Mr Craig did not know he had sexually harassed Ms MacGregor when bringing the proceeding, due largely to his oblivious and self-involved perception of their professional and personal relationship. He therefore did not bring the proceeding vexatiously or frivolously.

Final disposition of costs awards as follows: first, Slater shall not receive costs for any interlocutory steps taken in respect of the counterclaim; costs in respect of pretrial preparation and trial appearances reduced by 10 percent to reflect the aspect of those costs expended in relation to the counterclaim lying where they fall; 90 percent of the remaining sum payable by Mr Craig to reflect the limited success he had on the substantive claim.

The judgment details who succeeded and who failed in the defamation claim and counter claim, and then explained the costs calculations.

Claim for indemnity costs

[56] Mr Slater seeks indemnity costs of $564,730 or, in the alternative, scale costs of $356,400 on a category 3C basis.

Indemnity costs were turned down because Craig didn’t think he was guilty of harassing MacGregor.

[75] It follows that I do not consider Mr Slater is entitled to indemnity costs against Mr Craig. Regardless of what I have said about his relative lack of success in the proceeding overall, I do not think Mr Craig acted vexatiously or improperly in pursuing his claims or resisting the counterclaim. He did not believe that he was guilty of sexually harassing Ms MacGregor. That position may seem wholly unreasonable to many, but it needs to be considered in the light of Ms MacGregor’s failure to protest, as explicable as that may have been.

Category C scale costs are the largest scale costs that can be awarded, although substantially less than indemnity ()actual) costs. But the judge awarded category 2 costs, which are about two thirds of category 3 – because of the lack of detail given in the lawyers’ invoices.

[83] For Mr Slater, Mr Henry has not explained why each, or indeed any, of the steps involved in the proceeding took a comparatively large amount of time. Rather, he asks the Court to undertake a blanket assessment for banding. As has been made clear by the Court of Appeal, that approach is not desirable. Mr Slater has provided the Court with the monthly invoices charged to him by Mr Henry. However, the invoices simply set out the total hours of work completed by Mr Henry (and Ms Foster) in each month. They do not specify how much time was spent on which steps in the proceeding. I am unable, therefore, to assess whether the time allocated to a particular step by band C might be reasonable by reference to the actual time spent by counsel for Mr Slater on that step.

So due to invoicing laxness that cuts the scale costs back by something like a hundred thousand dollars.

There were more deductions.

[85] The saga that is this case needs to be brought to an end. I do not think it is desirable to add more delay by requesting further information from Mr Slater. The principles I have discussed should be applied as well as they can be to the material provided. On that basis, I direct that the award of costs to Mr Slater is to be calculated as follows:

(a) Mr Slater shall not receive costs for any interlocutory step taken in pursuing the counterclaim against Mr Craig.

(b) Because of the difficulty in identifying from the information provided how much of the preparatory work for which costs are sought under item 33 in Schedule 3 related to the counterclaim, I direct that the costs claimed under item 33 shall be discounted by 10 per cent.

(d) Because of the difficulty in identifying with precision how much of the trial time was occupied by the counterclaim, I direct that the costs of both counsel under items 34 and 35 in Schedule 3 shall be discounted by 10 per cent.

(e) A further deduction is to be made to reflect the limited success that Mr Craig enjoyed on the substantive claim. On that account, the amount of costs payable by Mr Craig shall be reduced to 90 per cent of all costs and disbursements.

I don’t know how that all works out but it looks to be much less than half the $564,730 claimed.

There are still substantial costs for Craig to pay  (he could appeal them). But the shortfall from actual costs will be greater. As Slater is bankrupt that may be bills that his lawyers cannot recover (I don’t know how the timing of the award and the bankruptcy affects things).

Everyone seems have lost here, after several years of litigation after a very public online spat.

Decision

PDF document icon SCC_0.pdf — PDF document, 196 KB (201019 bytes)

 

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10 Comments

  1. Tipene

     /  7th June 2019

    Slater wont be seeing a cent of the costs order, because he won’t be able to fund a defence to the (likely) appeal.

    Gotta love those wheels of justice……………

    Reply
    • He could represent himself. He’s been hopeless at that in other cases, but he could have learned something.

      Reply
      • Tipene

         /  7th June 2019

        After the “Whaleoil” book release?

        Most unlikely I would imagine.

        Reply
      • Loki

         /  7th June 2019

        He is too busy driving around in his disability Ute, hunting, shooting and living large. Another failing court case would be so boring.
        This is a great result.
        The fact that the lawyers are getting some and he isn’t will enrage the poor wee thing.

        Reply
  2. Horace

     /  7th June 2019

    The court costs levels are public information, Slater claims $350k on Cat C basis. Roughly the B category is $2200 a day and category C is roughly $3300 a day. Hence there is about 110 days and based on the adjustments, between the indemnity costs (ie actual costs are $500k odd) and the amount actually awarded is at least $300k! That is Craig is to pay abiout $200k.

    Reply
    • Tipene

       /  7th June 2019

      Unlikely, but even if so – Lawyers get payment, Slater gets nothing.

      Reply
  3. Patzcuaro

     /  8th June 2019

    “Slater had been found to have defamed Craig, but as Craig had been found to have then ruined his only reputation no damages were awarded.”

    Seems to me they have both ruined their own reputations.

    Reply
    • Alan Wilkinson

       /  8th June 2019

      I liked the ruling that Craig was not malevolent because he was too stupid.

      Reply
  1. Blomfield may benefit from Craig costs v Slater | Your NZ
  2. High Court awards more costs against Slater, SMCL | Your NZ

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