Summary: Hagamans v Little

Asher Emanuel has good coverage of the Hagaman v Little defamation proceedings in Watching the Hagaman-Little defamation trial, it felt like everybody lost.

It does feel like a lose-lose, except for the lawyers who won some big fees.

Emanuel concludes:

This is only the latest unseemly defamation parade of which New Zealand has had a few. Do you remember when Jordan Williams sued Colin Craig for defamation, won, and was awarded $1.27 million in damages?

That was a ridiculously high award. I presume that is still to be challenged on appeal.

Williams (who showed up to the Little verdict, spectator this time) is the director of an organisation founded on the idea that waste of public funds is immoral, and surely it is, but are these private wastes any more defensible? Are these really reputations worth protecting with bonfires of money?

In litigation, two sides tell two stories from which a judge or jury tries to piece together the truth. So Lani Hagaman told the jury she did not intend to bankrupt Little; that this was not about humiliating him. It wasn’t even about the money because they would give the award to charity. It was, she said, about dignity for Earl before he dies.

Earl did not get his dignity, if that’s what you could call it. And Little has escaped financial ruin, at least for today.

We will find out in about six months whether it has helped ruin Little’s chances of upgrading from Leader of the Opposition to Leader of the Country.

Andrew Geddis also covers it well in In qualified praise of the Andrew Little defamation verdict. He says:

“The defamation case against Andrew Little did not result in his having to pay any damages. All in all, I think that is a good thing for the country as a whole.

I agree. The $2 million+ claim by the Hagamans was far too high and I think a tactical mistake as well.

So Andrew Little is absolutely right when he says he had a “constitutional obligation” to make a song and dance about the issue. As leader of the opposition, it is his job to “speak out fearlessly” on matters like this – not simply because he wants to take the PM’s job for himself, but rather because the whole system of governing accountability and clean public processes depends upon him (and other opposition MPs) doing so.

I agree generally with this, but I don’t think Little handled it well, either initially or for months afterwards. He could have easily made the point without getting dragged into court.

Of course, when it turns out that the claim is wrong and that actually there was no untoward relationship between the donation and the subsequent contracting decisions, the use of this sort of language leaves egg on their maker’s face. His (or her) political judgment can and should be questioned.

And the maker really ought to put their hand up, say they got it wrong, and apologise for any wrong imputations (as Andrew Little eventually did – a bit too late, in my opinion, but there you are.)

I agree with this too. See my next post which suggests how Little could have done it effectively without the risks.

Geddis concludes:

But saying all that … yes, the bullet must be bitten. Insofar as there is any tradeoff between public accountability and private reputational interests, my sympathies lie with the former. And so I’m happy that Andrew Little walked out of court without any liability for his statements on this matter.

Yeah, but Little went too far, either deliberately causing (his initial language suggests at least a bit of this) or not caring about collateral damage (if we are to believe his claims his sole target was the Government and not Earl Hagaman and Scenic Circle).

RNZ interview: Law professor discusses Andrew Little defamation case

The dean of the University of Canterbury Law School, Ursula Cheer, analyses the outcome of the defamation case against Andrew Little. “This has turned out to be the most complicated case I’ve seen in defamation in a while.”

A case that the jury couldn’t deal with. One of the primary problems was the arguments had little guidance from previous court cases, appeals or precedents.

Guyon Espiner: So in terms of what we learnt from this and what it may set down, It’s another small step for the protection to discuss these matters of public interest, but perhaps also less protection for those possibly for those who get caught up in the collateral damage this.

Ursula Cheer: I think it doesn’t tell us a great deal actually that we haven’t already built up from other various High Court cases.

And the defence is still developing, we’re still waiting for a higher court like the Court of Appeal or the Supreme Court to look back over all the cases and say yes, we have it and it looks like this, and this is what ill will looks like and so on.

We’re still waiting for that which is partly why this case was so complicated.

And also because this was a jury decision, and jury decisions are about the facts, so it doesn’t really tell us much more about that in relation to other cases.

Guyon Espiner: So why do you think they had such a struggle with whether he was entitled to use qualified privilege if that is accepted and established?

Ursula Cheer: Well I think the evidence was borderline and it was a case of them looking at the evidence to see what Andrew Little had done in order to be responsible enough, in order not to be seen as motivated by ill will.

There can be a fine line in politics between holding to account and wishing ill will on opponents – the more illness one can associated with an opponent the greater ones chances of succeeding and winning in politics.

Ursula Cheer: But another part of that is if a person takes advantage of their opportunity to publish, in other words if they are reckless or even careless about whether the matter is true or not.

And that depends very much on the facts, and here it just wasn’t black or white.

The words were not so bad that you could say well that means there was ill will.

And then you’ve got, there was plenty of evidence in the case of Andrew Little’s genuineness.

That was in court nearly a year after it started. It is difficult now to judge how genuine Little was about wishing no ill will on the Hagamans last year, especially taking into account his refusal to qualify his accusations or offer an apology for most of the year.

Ursula Cheer: I think they just struggled with weighing that evidence up and seeing if the legal definition fitted what existed in this case.

As a result the outcome so far is quite unclear, legally and politically.

It is likely to have been difficult for some at least of the twelve jurors to put aside completely any political preferences.

When you see polarised political and legal positions in comments here, and more starkly the difference between comments on Kiwiblog (see Little wins) versus The Standard (see A basic primer on the law of defamation), it was hard to escape the political biases and potential ramifications.

Claire Trevett at NZ Herald: Andrew Little defamation trial a win for future Opposition leaders – and the lawyers

“This case is not about politics,” Earl and Lani Hagaman’s lawyer Richard Fowler said on the first day of the hoteliers’ defamation trial against Labour leader Andrew Little.

It was a rather optimistic plea in a case which was always going to be about politics.

With both sides trying to show political motivation on the part of the other, it was not so much a case of wrong and right as left and right, of political power versus personal wealth.

Yes. Political leanings ideologies were prominent in public discussions on the case, and I can imagine that personal political preferences could have had some influence in the jury room.

The jury sat impassive and infuriatingly inscrutable through most the trial, scrabbling their way through screeds of files.

When they were sent to make their decision, they were asked not to let either personal or political sympathies affect their decisions.

The reason for the inscrutable faces became clear when the string of decisions was read out – the jury found Lani Hagaman was not defamed at all, but was unable to decide on almost all of the claims by Earl Hagaman.

In the one case it did find defamation, it was unable to decide whether Little had acted in abuse of the ‘qualified privilege’ he had claimed so no damages were awarded.

As is often the case in such matters, the only winners in monetary terms were the lawyers.

It should be remembered that most people do not have anywhere near the financial resources to attempt defamation proceedings.

The other winners in the case were future Leaders of the Opposition.

Little’s present to them was Justice Karen Clark’s ruling that as Leader of the Opposition he met the criteria for the defence of qualified privilege.

The ruling acknowledges Little had a moral or legal duty to make the statements he had, in the course of holding the Government to account. It offers some protection in defamation suits, unless the person claiming it was motivated by ill-will or otherwise abused the privilege.

I don’t think the outcome as it is at the moment will have helped much, it is still unclear where the legal boundaries are.

But even if this case doesn’t go to another trial or to appeal Little and other politicians should have been able to learn something from this expensive and inconclusive exercise.

I offer some suggestions in the next post: Avoiding defamation: lessons for Little