Difficulties for Williams

A damning post by Peter Aranyi on the Judge’s setting aside of the jury award of ‘excessive damages’ in the Jordan Williams v Colin Craig defamation case: About that Jordan Williams damages award…

This highlights how damning Judge Katz’s ruling was.

Williams nor has some difficult decisions to make. Craig has indicated that he won’t agree to allowing the judge to determine damages, so this leaves three options (that I can think of):

  • A new trial
  • Walk away
  • Appeal Judge Katz’s ruling

Williams and his legal team have incurred large costs that I presume cannot be claimed off his opponent in the trial already held, unless Craig agrees to the judge deciding damages (he understandably doesn’t agree to that) and also costs, or if Williams wins an appeal and gets a substantial damages award plus costs.

If the new trial option is taken then I presume no costs can be sought on the case that has been set aside, so Jordan has an unrecoverable big bill before he starts a new case.

In a new trial a number of claims by Williams can’t (surely) be repeated after Katz pointed out that they were false and that Williams had lied.

So a new trial would have less material to claim on.

And Judge Katz has set a benchmark indication of appropriate costs that are far less than what the last trial jury awarded.

There’s a chance that Williams would lose altogether. Or he could win small – and not get anything like a recovery on his costs over the two trials.

Obviously walking away would also be costly for Williams.

He and his legal team have some decisions to make. The risks of losing are higher, and the chances of coming out ahead financially are doubtful.

And Williams’ reputation has been severely damaged, more so from his own actions than Craig’s.

I expect he will be watching Craig V Slater with interest – and possibly trepidation – before making a decision on what to do.

Dirty politics may have succeeded in killing off Craig’s political ambitions, but it has also resulted in self inflicted wounds on Williams too, in both the political and legal worlds.

Would another Hagaman trial be conclusive?

The defamation case taken by Earl and Lani Hagaman against Labour leader Andrew little ended in a very inclusive verdict.

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.

Lani Hagaman has indicated that they would like to have a new trial to sort out the uncertainties over the case and over qualified privilege generally, but that may be dependent on a very sick Earl living long enough.

And NZ Herald editorial says Andrew Little’s defamation action has resonated

Judges and philosophers would struggle to resolve the conflicting principles that faced the jury in the defamation action brought against the Labour Party leader, Andrew Little, by donors to the National Party, Earl and Lani Hagaman.

The jury had to decide not just whether the Hagamans’ reputation was damaged but if so, whether Little’s comments were permissible for someone in his public position. In other words they had to decide which was more important: a person’s right to be recompensed for a false personal slight, or the ability of MPs to raise matters they believe to be in the public interest.

Add to that what responsibilities are involved for politicians.

Something has come out of the inconclusive case so far.

By taking the case as far as she has, Lani Hagaman has stood up strongly for her scruples and those of her ailing husband. She has received a fulsome public apology from Little on the witness stand.

The Labour leader, and perhaps others who are too quick to suppose political donations bring material rewards, ought to be chastened by the lengths the Hagamans have gone to defend their good name.

It is to his credit that he accepted the costs of defending the case and the possibility of damages he might not have been able to afford without mortgaging his home.

It’s difficult to judge what impact the case has had on Little politically. He has been criticised and also supported.

The case has left open the possibility his comment could even be permissible under the privileges of Parliament. MPs have an absolute privilege when speaking in the chamber to impugn the reputations of individuals outside at no risk of a defamation suit. When their words are reported outside the chamber they carry the same privilege on condition the report is accurate and published in the public interest, not malice. Little invoked that “qualified privilege” for his comments outside the House.

The jury has not rejected his defence out of hand. If the Hagamans go back to court for a conclusive ruling, a jury could give MPs greater licence to speak outside Parliament in the public interest.

A jury could give MPs greater license to speak without legal risk, but a different jury could clamp down on loose political lips too.

Given the indecision of this jury, and the setting aside of the excessive award by a jury in the Jordan Williams v Colin Craig case, and the ruling by a judge that the Colin Craig v Cameron Slater trial would be judge-alone, if the Hagamans get to court again their may be no jury involved.

A judge-alone decision is probably the only way of getting a conclusive legal ruling.

This could be tested to an extent next month in Craig v Slater, but Craig used a different type of qualified privilege for his defence in Williams v Craig, the right to ‘ counter-punch’, or to fight back against attacks on him by Williams.

So that will be limited to the lengths people can legally go in waging general political attacks.

If Earl Hagaman dies before going to trial we may not get a conclusive ruling on how protected politicians are against ‘collateral damage’ from them attacking the Government with unfounded accusations.

Williams v Craig – the ‘Dirty Politics’ connection

On 12 April 2017 Judge Katz J delivered a judgment in the defamation case brought by Jordan Williams against ex leader of the Conservative Party Colin Craig.

Judge Katz put aside the jury award of a record amount of damages of $1.27 million, ruling that it was excessive and would have amounted to a miscarriage of justice.

Unless Williams decides to walk away from the case it looks like it will have to go to another trial.

The full decision is here (PDF, 528KB)

Law Professor Andrew Geddis has a good summary of key legal points here: How to lose when you win. This explains Judge Katz’s reasoning well.

However Geddis avoids naming a person and a blog closely involved in the case – Cameron Slater and Whale Oil. Judge Katz describes how Williams used both to attack Craig, which prompted Craig’s retaliation that the jury ruled ill willed enough and/or took improper advantage of the occasion.

So I’ll have a look at the blogging aspects aspects of the case and connections made to Dirty Politics that are mentioned in the judgment.

Some background:

[16] Ms MacGregor appears to have had little or no knowledge of what Mr Williams was doing. However, she had, by this time, become suspicious that Mr Williams may have taken copies of the letters Mr Craig had sent her, which she had stored in his office safe. On the morning that Mr Williams was scheduled to meet with Messrs Day and Dobbs she sent him an email requesting that he return the letters to her. She further stated in her email:

Do not copy them. I do not want them to be used against Colin. I want this whole thing to go away and for there to be no more trouble.

Mr Williams disregarded Ms MacGregor’s request.

[17] Mr Day met with Mr Craig on 19 June 2015 (the morning after he and Mr Dobbs had met with Mr Williams) and told him what an “informant” had told them. Mr Craig, by this time, was fairly sure who the informant was. Mr Craig agreed to stand down to enable the Board to undertake a full investigation of the issue.

Slater and Whale Oil get involved.

[18] That same morning Mr Williams, using the nom de plume “Concerned Conservative”, sent a draft blog post to blogger Cameron Slater for publication on the Whale Oil website. The draft blog post made allegations against Mr Craig of sexual harassment, a pay-out to a former staff member, and inappropriate touching. Mr Williams attached (without Ms MacGregor’s knowledge or consent) a photo of a poem Mr Craig had sent to Ms MacGregor, entitled “Two of Me”, and a photograph of Mr Craig’s signature at the bottom of a letter to Ms MacGregor.

[19] The Whale Oil website published the blog post immediately prior to (or possibly simultaneously with) a press conference called by Mr Craig to announce he was stepping aside. Over the course of the next three days, Whale Oil published a number of further articles containing allegations about Mr Craig and speculating about the leadership of the Conservative Party. Mr Williams was involved in instigating or drafting most of that material. These actions contributed to (but were not the sole cause of) what was described at trial as a subsequent “media firestorm.”

Those familiar with Whale Oil may recognise this modus operandi – providing Whale Oil with material that is either posted anonymously or under the authorship of ‘Cameron Slater’ as part of a sustained campaign against someone.

Similar tactics were described in Nicky Hager’s 2014 book Dirty Politics, including involvement of Williams with Slater, and the use of Whale Oil.

[20] On 29 July 2015 Mr Craig called a press conference, during which he read out the Remarks to the media. The Remarks included a number of statements about a group referred to as the “Dirty Politics Brigade”, identified as including Mr Williams, Mr Slater and Mr Stringer. Some of the key passages from the Remarks (with the words Mr Williams specifically complained of in italics) are as follows:

Today is a good day because this is the day we start to fight back against the Dirty Politics Brigade who have been running a defamatory strategy against me.

The first of the 2 major announcements today is the publication of a booklet that outlines the dirty politics agenda and what they have been up to in recent weeks. There is a copy here for each of you to take away after the statements today.

Although I was broadly aware of the dirty politics agenda, I have after all read Nicky Hager’s book, I had not expected to have such close and personal attention from them.

In our booklet we reveal that there has been a campaign of defamatory lies to undermine my public standing, a campaign that in the Dirty Politics Brigade’s own words they describe as a “strategy that is being worked out”. I shall briefly cover some of their lies so you have a taste of what the booklet contains.

The first false claim is that I have sexually harassed one or more persons. Let me be very clear, I have never sexually harassed anybody and claims I have done so are false.

The second false claim being bandied about by the Dirty Politics Brigade is that I have made a pay-out (or pay-outs) to silence supposed “victims”. Again this is nonsense. Take for example the allegations around my former press secretary. Let me be very clear, the only payment I have made to Miss MacGregor since her resignation is an amount of $16,000 which was part payment of her final invoice. It was a part payment because I disputed her account which I had every right to do. Claims of any other amounts being paid and especially the suggestions of large sums of hush money being paid are utterly wrong and seriously defamatory.

Again in a similar vein is the false allegation that I have sent sexually explicit text messages or “SEXTs” as they are known. Once more this is not true. I have never sent a sexually explicit text message in my life.

We identify in the booklet 3 key people in the campaign against me. Each of these will be held to account for the lies they have told. Formal claims are being prepared and I expect these persons will have formal letters from my legal team within the next 48 hours. Due to the serious, deliberate and repetitive nature of the defamatory statements I will, for the first time, be seeking damages in a defamation claim.

The first defamation action is against Mr Jordan Williams. I will be seeking damages from him of $300,000.

The second defamation action is against Mr John Stringer. I will be seeking damages from him of $600,000

The third defamation action is against Mr Cameron Slater. I will be seeking damages from him of $650,000.

Today the line is drawn. Either the dirty politics brigade is telling the truth or I am. The New Zealand public need certainty about the truth of these claims. This is about who is honest. Is Colin Craig telling the truth or is it the Dirty Politics Brigade. Let the courts judge this matter so we know whom to trust.

[21] The Leaflet was made available at the press conference and subsequently distributed nationwide to letterboxes. Key passages included the following (the words of specific complaint are again emphasised):

We are a nation that believes in a fair go. We want our referees to be fair and every game to be played in a sportsmanlike way. We do not like corrupt people, and honesty is one of our core values. We must therefore reject the “Dirty Politics Brigade” who are seeking to hijack the political debate in New Zealand.

This booklet details the latest action by the Dirty Politics Brigade, this time in an attack on Conservative Party leader, Mr Colin Craig. […]

Williams is a well-known member of the Dirty Politics Brigade having already been identified in the “Dirty Politics” book as “acting as an apprentice to … Slater”. He is a lawyer and currently works full time as a political lobbyist.

It was Williams who gathered the initial information and accusations against Craig. His source was Craig’s former press secretary Rachel MacGregor with whom Williams had a romantic relationship.

Using the information he had gathered, Williams built a compelling story of MacGregor’s alleged harassment which he supported by an “attack dossier” of information. His presentation of events was in part her story (as he says she told it to him), some personal notes by MacGregor regarding the matter, and selected details of alleged correspondence from Craig to MacGregor.

The allegations presented by Williams included claims that (a) Craig had sent MacGregor “SEXT” messages, (b) MacGregor had resigned due to harassment but was lured back by big money, and (c) Craig stopped paying MacGregor for 6 months and put sexual pressure on her with requests she stay the night.

These are false allegations and easily proved so. Sexually explicit texts, resignations, and invoicing/payment records are by nature documented events.

Once Williams had put together the “attack dossier” he provided the details to Cameron Slater [Whaleoil] which ensured that there would be a media agenda at work against Craig.

Williams however did not stop there. He also had confidential meetings/discussions with people including some of Craig’s key supporters and Board members. In these “confidential” discussions Williams would attack Craig’s character undermining support for him. Williams was always careful that Craig did not know of the meetings, that no copies of the supposed “evidence” were taken, and that his [Williams’] involvement was kept secret.

Later the judge details examples of where Williams was not successful in his claims, with a number of things proven to be true (and therefore not defamatory).

[53] In my view the fact that the jury awarded the full amount of damages sought by Mr Williams strongly supports the inference that the jury must have concluded that Mr Williams was entirely successful in his claim, or almost entirely successful. He was not. Several of the defamatory imputations he pleaded were proved to be true at trial. For example, the allegation that Mr Craig had sent sext messages to Ms MacGregor was a key plank of Mr Williams’ attack on Mr Craig’s reputation. Mr Williams pleaded that Mr Craig defamed him by saying that he (Mr Williams) had lied when he told people that Mr Craig had sent sext messages to Ms MacGregor. The undisputed evidence at trial, however, was that Mr Williams did tell a number of people that Mr Craig had sent Ms MacGregor “sext” messages and that this was not true. This information had a significant impact on those who heard it and was a key factor in the pressure on Mr Craig to step down as leader of the Conservative Party.

[54] It was open to the jury to conclude that, initially at least, Mr Williams may have been mistaken as to the existence of sext messages from Mr Craig to Ms MacGregor. The over whelming weight of the evidence at trial was inconsistent with any continued mistaken belief, however, as pressure mounted on Mr Williams to produce evidence of the sext messages, which he was unable to do. Further, Mr Williams told at least one witness that he had seen copies of sext messages, when he had not.

[55] Mr Williams also pleaded that Mr Craig had defamed him by saying that he (Mr Williams) had lied by falsely alleging that Mr Craig had made a pay-out (or pay-outs) of large sums of money to silence Mr Craig’s victim(s) of sexual harassment. The evidence established that Mr Williams did tell people that Mr Craig had paid large sums of money to settle Ms MacGregor’s sexual harassment claim. Mr Williams acknowledged, however, that he knew that any settlement sum was likely to be small, not the large figure he had mentioned.

[56] There was also undisputed evidence at trial that provided at least some support for a number of the other defamatory imputations pleaded, such as imputations that Mr Williams had been dishonest, deceitful, and could not be trusted.

Examples of undisputed evidence at trial that supported such imputations included

  • Mr Williams’ admitted breach of his undertaking to Ms MacGregor to keep her information and documents as confidential as if he were her lawyer,
  • his disclosing of her confidential documents to Messrs Day and Dobbs within hours of Ms MacGregor requesting their return,
  • his lying to Ms MacGregor about going to Hamilton to meet with Messrs Day and Dobbs,
  • his claims that he had seen copies of “sexts” from Mr Craig to Ms MacGregor when he had not,
  • his creation of the nom de plume “Concerned Conservative” to provide confidential information and a draft blog post to Cameron Slater for publication on the Whale Oil website,
  • and his subsequent denials to Ms MacGregor when he was confronted regarding this.

[Paragraph separated into points – Ed]

That list isn’t very complimentary about Williams’ behaviour and trustworthiness.

It shows how Whale Oil was used in a similar way as described in Dirty Politics. More may be revealed about this in the Craig v Slater defamation case due to be heard in a judge-alone trial set down for next month.

One interesting point – “…as pressure mounted on Mr Williams to produce evidence of the sext messages, which he was unable to do. Further, Mr Williams told at least one witness that he had seen copies of sext messages, when he had not. ”

I think there has been a number of claims made on Whale Oil in relation to this and in relation to Dirty Politics of evidence that I believe has never been produced.

And it reminds me of another sustained campaign at Whale Oil to oust a politician – just after the 2013 local body election when Len Brown was re-elected mayor of Auckland. At one stage claims were made that there was evidence of ‘lewd text messages’ sent by Len Brown.

That actually resulted in a post at 2:30 pm, 15 October 2013 – EXCLUSIVE: Len Brown’s lewd text messages – that showed some texts claimed to have been sent by Brown. I think there may be doubt about that they were written by Brown (note that I have no reason to believe that involved Williams at all, someone else with some history of fabricating evidence trying to hide their identity could have done that).

In December 2013 Whale Oil post Sex Sells that was listed that as third on a list of their top 50 posts for the year. This post included this image:

cartoo1

Since then Slater (or posts under his name, there’s no guarantee who wrote them) has kept bragging about being dirty and has promised to carry this on in 2017.

screen-shot-2016-12-12-at-9-52-14-pm

Still (as of now) on Whale Oil on Twitter:

whaleoiltwitter2

Coincidentally or not this post appeared at Whale Oil yesterday:

Whaleoil Code of Ethics? You’re kidding, right?

by Pete

Our critics would have you believe that it is a free-for-all in blog land, and that we destroy lives at will and without any sense of restraint.

When I started helping out with Whaleoil some years ago, I had to decide where I was going to draw the line.  And where I ended up drawing it is exactly the same as the way Cam operates.

I suspect that line but be drawn a bit more carefully over the next couple of months. The ongoing promotion of ‘Dirty Politics’ as what they are might not help in several possible court cases that I can think of.

Our interest does lie with news and current affairs.  If you are the subject of our attention, it may feel intense and extremely personal.  But if it was personal, we wouldn’t stop when you stop.

An example would be Colin Craig.  His public and private dealings were intensely followed due to his unorthodox political style.  This was then exacerbated as stories developed around him such as his press secretary quitting 2 days before the election.  And his subsequent media appearances, publications and court appearances have kept him “on the field”.

Yet Colin is no longer offering himself to the public as a public servant to be elected.  So our attention has pretty  much gone away.   Apart from the court cases, which are of personal interest to us, we don’t really talk about Colin anymore.

That’s not how it has sounded at WO, but they have to be careful what they say now because of pending court cases.

What we are doing now, is having a hard look at the new leader of the Conservative Party, his strategies, communications and background.   To the new leader, this may appear quite personal.  But it is clear Whaleoil was never personally interested in Colin Craig.  Because our attention shifts along as Colin has, for now, left politics.

I know for a fact that Whaleoil has changed lives.  Bringing things to the public’s attention has destroyed careers.  Marriages.  Businesses.  Relationships.

How do we sleep at night?

We sleep because we know that we didn’t make the mistakes.  We simply bring them to the public’s attention.  And we sleep because as soon as the person withdraws from the public eye, we move on too.

That’s an odd way of making excuses for destroying people’s careers.

And given what Judge Katz has written “we know that we didn’t make the mistakes” looks like it should be treated with scepticism, if not scorn.

As Judge Katz said the defamation trial found evidence that Williams disguised his identity on Whale Oil and supplied material for Slater to post in a sustained attack against Craig and the Conservative Party.

When I see a familiar looking political activism post on Whale Oil some of the first things I wonder are a) who actually wrote it or supplied the material to be written up, b) is this part of a wider campaign against someone and b) is there money involved?

Whale Oil still fills an online niche for people who like their style and content, but if they keep promoting a dirty style of political activism they will struggle to be seen as serious or credible media.

And most people with any ambition in politics will not want to be associated with the Dirty Politics gang at Whale Oil.

 

Craig v Slater defamation trial to be judge-alone

Slipping beneath my radar yesterday was this news that the Colin Craig v Cameron Slater defamation case would be a judge-alone trial.

NZ City: No jury in Craig, Slater defamation case

A defamation claim by former Conservative Party leader Colin Craig and Whale Oil blogger Cameron Slater won’t be heard before a jury.

Mr Craig is suing Slater and co-publisher Social Media Consultants Ltd over 18 statements made on radio, television and on the blog about Mr Craig’s relationship with his former press secretary Rachel MacGregor.

Slater is counter-suing Mr Craig for two statements made in a press conference and booklet alleging he and the Whale Oil blog were involved in a campaign to force his resignation from the Conservative Party.

A jury had already been summoned for the trial, which is scheduled to begin on May 8, but Justice Christopher Toogood on Tuesday ordered the case be heard by a judge alone.

Slater had sought a jury hearing, while Mr Craig wanted judge-alone.

In his judgment, Justice Toogood said Mr Craig believed the question trail to assist the jury decide the issues could run as long as 100 pages and “the time, effort and expertise required to follow it should not reasonably be required of a jury”.

But Slater’s barrister Brian Henry said the case was not nearly as complex given the direction on legal matters was not controversial and the facts fell within a narrow compass.

Justice Toogood disagreed.

“Arising out of the allegations, 50 possibly defamatory meanings are asserted,” he said.

“The factual background to each of the publications is extensive.”

He said it would be unreasonable for a jury to work through the complex legal background of the case and ordered it be heard by a judge alone.

This is of particular interest because the decision was released on the same day that Katz J released her judgment in Jordan Williams v Craig that ruled that the jury award of damages was excessive and would amount to a miscarriage of justice. Katz J outlined a number of issues that the jury had had problems with or ignored despite her summing up alerting the jury to them.

Craig has said that he won’t choose to allow Katz J to decide on damages, so the only options for Williams appears to be to walk away from the case, to appeal, or to go to a new trial.

If it goes to a new trial then Craig may apply for judge-alone there too. Given the problems with the jury in the first trial, and the decision to order judge-alone in Craig v Slater, there may not be a jury second time round.

Williams will need to weight these things up when deciding what to do from here.

Craig’s and Slater’s legal teams are likely to be reassessing their approach to their cases now.

The jury in the defamation case Hagamans v Andrew Little had problems deciding on complex legal questions a week ago, resulting in a hung verdict. That case may also go to a second trial.

In that case the judge referred to the difficulties with dealing with the overlapping responsibilities of judge (on law) and jury (on facts) over deciding on whether qualified privilege could apply (judge’s decision) and whether there were sufficient grounds (ill will will or unfair advantage) for qualified privilege to be removed as a defence.

Williams v Craig: lawyer response

A judgment released by the High Court on Wednesday found that  the jury awarded ‘excessive’ damages (a record $1.27 million) against Colin Craig v Jordan Williams.  Judge Katz ruled:

The consequence is that a miscarriage of justice has occurred. The jury’s verdicts must therefore be set aside and a retrial ordered, unless both parties are willing to consent to my substituting a new damages award in place of the jury’s award. It is not possible to have a new trial solely on the issue of damages, as any assessment of damages must necessarily be based on the jury’s overall factual findings.

Just after that RNZ reported Craig’s reaction in $1.27m Colin Craig defamation damages ruled excessive:

Mr Craig said he was relieved at the miscarriage of justice finding and the judge’s ruling was “bang on”.

“The only correct course coming out of that trial last year was to in fact rule it as a mistrial.

“The law has been properly exercised in this particular case.”

Mr Craig said what happened now was up to Mr Williams, as he would not be agreeing to any new damages.

“The fact of that matter is Mr Williams simply hasn’t made his case against me yet. He is entitled to take this matter back to court. If he does I will defend myself.”

“This is really his decision to make. For me, I’m happy where things are right now.”

RNZ: Colin Craig relieved defamation case a miscarriage of justice

Colin Craig: In civil cases it’s straight forward, you have to pay for your legal defence and if you’re successful then you get costs against the other party.

But this is really up for him to decide. I mean he can also I guess appeal the judgment of the court.

So he has decisions to make, I’m sure he’ll let me know what those decisions are in due course.

These cases are very expensive to run. I think both Mr Williams and I have spent about a million dollars on this, so it’s a very big deal and we both see it as very important.

RNZ: Could you both just walk away from this though now?

Colin Craig: Well in terms of this case against me that’s a decision for Mr Williams, if he wishes to walk away he’ll walk away.

From my perspective now there are a couple of judgments that really do set out what happened, I feel that I’ve got most of the way there in what I’m trying to achieve.

RNZ: But would you and your family actively want to see this go further, to have a retrial?

Colin Craig: I would like to determine the final details, I mean we’ve got a lot of very helpful decisions from the court now on undisputed facts. There do remain some disputed facts.

I would like to get a final ruling on those, but not enough to want, absolutely demand there be a retrial. If Mr Williams walks away he walks away. I would accept that.

RNZ: Has this judgment given you pause for thought regarding a return to political life, to a political career?

Colin Craig: Well there’s a lot of, as you could imagine, a lot of positive feedback flowing in at the moment, you know, emails, texts, phone calls. And a lot of people are very keen that I should re-stand or put my name forward.

For me that would be premature at the moment. I think we still have to get tot the end of establishing the truth or otherwise of things that have been said, and at that point I think I can consider my options, and we’re not there yet.

 

Craig made it clear he wasn’t interested in the judge’s offer “to consent to my substituting a new damages award in place of the jury’s award” and that it was now up to Williams to decide what to do from here.

In response Jordan Williams’ lawyer was interviewed on RNZ: Williams’ solicitor responds to Craig defamation case

– “Jordon William’s solicitor says they won’t be going away and a re-trial is an option that the team are considering. John Langford says its not all about money, but it would be nice to get something out of what has been a very expensive piece of litigation.”

RNZ: So your client won’t get the $1.27 million. I hope he hasn’t spent it already.

[No damages will have been handed over yet.]

John Langford: I hope not. Well we don’t know what he’ll get.

Let’s just get this straight. Mr Craig was talking about getting to the truth of the matter. The decision yesterday really had nothing to do with the truth of of what was said at the trial, because the judge didn’t take away in any way the jury’s finding that Colin Craig defamed Jordan Williams.

It’s correct that the judge didn’t take away the finding that defamation did occur, but the judgment also made it clear that undisputed and established facts showed that Williams had attacked Craig over a period of time, and…

  • “There was also undisputed evidence at trial that provided at least some support for a number of the other defamatory imputations pleaded, such as imputations that Mr Williams had been dishonest, deceitful, and could not be trusted.”
  • “Mr Williams’ admitted breach of his undertaking to Ms MacGregor to keep her information and documents as confidential as if he were her lawyer”,
  • “his claims that he had seen copies of “sexts” from Mr Craig to Ms MacGregor when he had not”,
  • “Some of the allegations that Mr Williams made about Mr Craig, or that Mr Craig understood that he had made, were untrue, based on undisputed evidence at trial”,
  • “the jury failed to take into account that several of the more serious defamatory imputations were true”,

and these were significant factors in finding that the jury award excessive to the extent of constituting a miscarriage of justice.

John Langford: The decision was mainly about the level of damages awarded, and having been at the hearing on the fifth of December. I could see that the judge was concerned about the level of damages and we were always at risk of losing that.

RNZ: Yes but the two things are linked though from the ruling. It says that in my view that fact that the jury awarded the full amount of damages sought by Mr Williams supports the inference that concluded that Mr Williams was entirely successful in his claim, or almost entirely successful, and it goes on to say he was not, and that several of the defamatory imputations he pleaded were proved to be true at trial. So there was some connection…

John Langford: …I think you mean untrue at trial. Anyway carry on.

RNZ: So there is a link between the degree of success and the damages awarded.

John Langford: Well we’ve been too successful. We were awarded a record level of damages. We were awarded…about the price of a house in Auckland. So now if you are plaintiff in a defamation case if you’re going to follow this decision you might be prudent not to claim a very large sum at all, or to tell the jury at the trial that you don’t want a big award, or otherwise you risk having the award set aside.

Any good defamation lawyer would know that claiming about 50% more then the current record when your case is unlikely to be seen as serious as that one by either an ordinary person or a judge, and that your client had acted quite poorly as well, then you risked having the claim overturned. If Judge Katz hadn’t ruled it excessive an appeal court is quite likely to have.

RNZ: You put it in the context of an Auckland house price, but the other context that was used in the ruling is that the previous highest ruling was $825,000 awarded to Michael Stiassny back in 2008, which was found to be the worst case of defamation it could find in the British Commonwealth, this is what the Court of Appeal said, yet this award was almost 50% higher. So perhaps your comparison with Auckland house prices isn’t quite as useful as that.

John Langford: I don’t know, I think back in the days of that Stiassny case the Auckland house prices were substantially lower, but anyway that’s just a…

RNZ: …the next step here is what is your client going to do.

John Langford: We’re going to have to decide but I’ll tell you one thing we’re not going to do, we’re not going to go away, so we’re in it for the long haul. His legal team are all experienced litigators, we’re all used to having setbacks, and it’s not for the faint hearted so we’re not going away, we’ll make some decisions in the next few days I’m sure.

RNZ: So you’re going to go for a retrial?

John Langford: We’d have a retrial if that proves necessary. But I’ve heard Mr Craig, I don’t know what his attitude is to having the judge decide the damages, that’s an option but it’s an option that we we’ll need to consider.

Craig had already made it clear that he wasn’t interested in having Judge Katz decide damages (but she strongly hinted with supporting reasons that if she did they would be substantially lower).

Craig also has a recent history of not conceding anything on legal matters and fighting to the point of vexatiousness (not in this case).

RNZ: And so what is it about now, is it about money now?

John Langford: Well, it’s an expensive piece of litigation and it would be nice to get something out it, but I don’t think it’s al about money at all.

See the trouble is with this, what we’ve had really is a setback based on what the judge considered was an excessive award of damages, but no doubt Mr Craig will be claiming complete vindication and claiming a victory.

So we’d like a verdict that sticks, we’d like a verdict where we get judgment entered and if we get the money or don’t get the money that’s another issue.

It’s one thing to get a judgment and it’s another thing to get the money.

You need to get a favourable judgment to get money from damages, and it looks like for that to happen it will have to go to another trial. Both sides will have learnt a lot from the first trial.

And you probably also need to get a favourable judgment to get any costs awarded.

We will have to wait and see what Jordan Williams decides to do from here. He currently has nothing apart from presumably a sizeable legal bill, and his reputation has also been significantly compromised by what was revealed in the trial and what Judge Katz pointed out in her judgment.

Going through a public trial again will be a further challenge, with the certainty of clocking up substantially more costs and exposing his reputation further – any defence is likely to make sure of that – and with a risk of getting less than has been outlayed, or nothing monetary at all.

The full decision is here (PDF, 528KB)

A very good summary from Law Professor Andrew Geddis: How to lose when you win

 

Craig: decision on new trial up to Williams

After Justice J Katz ruled that a miscarriage of justuice had occurred in the defamation case between Jordan Williams and Colin Craig – see Williams v Craig – costs judged excessive, may be new trial.

Craig has responded saying that it was up to Williams as to whether he wants a new trial as he wouldn’t agree to accept a new damages award from Justice Katz.

RNZ: $1.27m Colin Craig defamation damages ruled excessive

In reviewing the case, Justice Katz said the damages were well outside any reasonable range, by a significant margin.

“Viewed objectively, Mr Craig’s statements cannot be said to have been markedly worse than the statements made in all of the previous defamation cases that have come before the court.

“The damages award is well outside of the range that could reasonably have been justified in all the circumstances of the case. The consequence is that a miscarriage of justice has occurred.”

The highest previous amount was the $825,000 awarded to Auckland accountant Michael Stiassny in 2008.

“The Court of Appeal described the case as the worst case of defamation it could find in the British Commonwealth. Mr Craig’s conduct falls far short of that… yet the jury’s total damages award is almost 50 percent greater.”

One could guess from that indication that if the damages award was closer to 50% of the Stiassny award rather than an excessive 50% more that the judge would not have ruled a mistrial.

That would still have been a substantial award for Williams.

This is one of the risks with having a jury in unusual and complex cases – going overboard with their award gave Justice Katz little choice but to throw the case overboard.

Justice Katz said there would either have to be a retrial or the two parties could agree to accept a new damages award.

But Craig has already said that he doesn’t agree with accepting a new damages award.

“The only correct course coming out of that trial last year was to in fact rule it as a mistrial. The law has been properly exercised in this particular case.”

Mr Craig said what happened now was up to Mr Williams, as he would not be agreeing to any new damages.

“The fact of that matter is Mr Williams simply hasn’t made his case against me yet. He is entitled to take this matter back to court. If he does I will defend myself.”

“This is really his decision to make. For me, I’m happy where things are right now.”

Williams has issued a statement:

Statement from Jordan Williams

Responding to this afternoon’s judgment by Her Honour Justice Katz in relation to the Williams v Craig defamation claim, Jordan Williams, says, “The Judge has offered the choice of her resetting the damages, having another jury trial, or we can go to the Court of Appeal. Over the coming days, my lawyers and I will be making those decisions.”

Craig has said that he won’t agree to resetting the damages, so that leaves an appeal or a new trial or leaving it as it is.

This is a tricky situation for Williams. He will already have a substantial legal bill, reportedly hundreds of thousands of dollars. He could double that by going to a new trial and risk coming out with nothing.

And claiming all costs may be difficult, given that Williams had attacked Craig first and over a period of time, and was found to have lied when giving evidence in the trial.

 

Williams v Craig – costs judged excessive, may be new trial

After the jury awarded record costs against Colin Craig in the defamation case taken against him by Jordan Williams Judge J Katz deferred entering judgment on request of Craig’s counsel.

She has now released her judgment – she has ruled that the costs and damages awarded were “well outside the range that could reasonably have been justified in all the circumstances of the case” (they were easily a record) so the defamation could go to a new trial.

[105] Viewed objectively, Mr Craig’s statements cannot be said to have been markedly worse than the statements made in all of the previous defamation cases that have come before the Courts in New Zealand. Yet the damages awarded in this case are significantly higher than any previous award.

[109] Taking all of these matters into account, I am satisfied that the damages award is well outside the range that could reasonably have been justified in all the circumstances of the case. The consequence is that a miscarriage of justice has occurred. The jury’s verdicts must therefore be set aside and a retrial ordered, unless both parties are willing to consent to my substituting a new damages award in place of the jury’s award. It is not possible to have a new trial solely on the issue of damages, as any assessment of damages must necessarily be based on the jury’s overall factual findings.

[110] In relation to Mr Craig’s second ground of challenge to the jury’s verdicts, I reject the submission that there was no evidence, or insufficient evidence, to support the jury’s finding that he had lost his qualified privilege.

Result

[112] The parties are to file memoranda by 3.00 pm on Wednesday 26 April 2017 advising whether they consent to the Court substituting its own award of damages for the jury’s award, pursuant to s 33 of the Act. If confirmation is not received by that date that both parties consent to such a course, then I order that the jury’s verdicts be set aside and the proceedings be set down for a re-trial on the first available date that is convenient to senior counsel.

http://www.courtsofnz.govt.nz/cases/williams-v-craig/@@images/fileDecision

There are interesting points and explanations made in Judge Katz’s judgment regarding qualified privilege.

Whale is prudently not commenting much at this stage due to a pending trial of Craig v Cameron Slater – Williams v Craig developments

I realise this is of supreme interest to all of us, but as we are only weeks away from the Craig v Slater defamation trial in Auckland, we will not comment, and to keep things safe, we ask you not to comment and speculate on this blog.   We are not bystanders able to comment freely, and therefore we also can not provide you with a platform to do so.

Judge Katz’s ruling will be very pertinent to this trial.

Stuff: High Court throws out Colin Craig $1.27m damages order

In a just-released judgment Justice Katz said a miscarriage of justice had occurred, and that jurors appeared to have failed to follow her directions.

“I am satisfied that the damages award is well outside the range that could reasonably have been given in all the circumstances of the case,” she said.

NZ Herald coverage: Verdict may be set aside in Colin Craig v Jordan Williams defamation case

The judge presiding over the Colin Craig defamation case says a “miscarriage of justice has occurred”.

Justice Sarah Katz said in a decision released today that damages awarded against former Conservative Party leader Craig were “well outside the range that could reasonably have been justified in all the circumstances of the case”.

In an emailed statement, Jordan Williams said: “The judge has offered the choice of her resetting the damages, having another jury trial, or we can go to the Court of Appeal. Over the coming days, my lawyers and I will be making those decisions.”

Craig told the Herald this afternoon that Justice Katz had “got it right”.

“It clearly was a mistrial and a retrial is the next step.”

 

Colin Craig: more court stuff

Auckland High Court daily List – Friday 7 April

NO 5 COURT BEFORE THE HON. JUSTICE TOOGOOD
Ground Floor 9.00am
CIV2015-404-1923
COLIN GRAEME CRAIG v CAMERON JOHN SLATER
(In Person)                                      (B Henry, C Foster)
Application for an order that the case be tried Before a Judge without a jury

Previously:

  • September 2016: a jury awarded Taxpayers’ Union founder Jordan Williams $1.27 million in damages after he sued Mr Craig over comments made at a news conference.
  • December 2016: a copyright lawsuit Mr Craig brought against WhaleOil blogger Cameron Slater and Mr Williams over the publication of a poem by Mr Craig was thrown out as “vexatious”.
  • February 2017 a defamation claim by Mr Craig against former party board member John Stringer was settled out of court.

Today from Newshub: Colin Craig suing again

Former Conservative Party leader Colin Craig is involved in another defamation case.

This time he’s suing a former employee for $240,000.

His claim alleges a defamatory publication was posted by Jacqueline Stiekema on a Facebook page and that she made other defamatory publications to a third person.

It will be heard in the District Court rather than the High Court, according to a recent decision by High Court Associate Judge Roger Bell.

If you want to post derogatory comments about Craig please do it somewhere else.

Colin Craig wins defamation case

In contrast to some significant legal losses Colin Craig has had a win in a defamation case against ex-Conservative Party board member John Stringer. The case has been settled out of court prior to a scheduled hearing in March.

1 News: Colin Craig celebrates win in defamation case against former Conservative Party board member

Former Conservative Party leader Colin Craig is celebrating winning a defamation case against a former member of the party’s board, John Stringer.

The High Court in Christchurch yesterday issued a judgement confirming that Mr Craig had been defamed by Mr Stringer.

Mr Stringer was found to have defamed Mr Craig in various statements that alleged Mr Craig had sexually harassed his former press secretary Rachel McGregor and one or more other women, and in various statements that alleged Mr Craig had committed business or electoral fraud.

Mr Stringer has retracted his statements, apologised to Mr Craig and settled the matter by payment of a confidential sum.

Mr Craig’s statement said that in 2014 he came under attack from two bloggers, Mr Stringer of CoNZervative Blog and Whaleoil blogger Cameron Slater.

Both Craig and Stringer have had previous court setbacks in this case.

Slater may now be reviewing his optimistic predictions. He had a major win against Craig when a judge ruled a copyright claim by Craig to be vexatious – see The judgement arrives: Colin Craig cops another one in the chook. Craig is appealing that but he is at real risk there of being seen to be doubling down on vexatiousness.

As well as that there is more to come. Craig is appealing the massive award against him after Jordan Williams one his defamation case.

Also Stringer has a counter claim against Craig for defamation, and Slater also has a claim of defamation against Craig.

NZ Herald: Confidential financial settlement in defamation case between Colin Craig and former Conservative Party board member John Stringer

The former Conservative Party leader sued a board member for defamation. So why is another trial still going ahead?

Stringer confirmed the defamation case against him had been settled, with a confidential financial payment, by consent yesterday.

However, Stringer added his counter-defamation claim against Craig was still going ahead.

He said this is scheduled for June, shortly after another defamation trial between Craig and Whale Oil blogger Cameron Slater.

It’s quite possible Craig could be found to have also defamed Stringer in what was an ugly tit for tat public spat.

There seems to be a lot of money and ego involved in all of this.

It will be interesting to see how Whale Oil reports on this settlement.

The decision does not appear to be online yet. Here are previous decisions in the case:

Craig comeback as likely as second coming

Colin Craig is talking about being open to political comeback. Is he that out of touch with reality?

Barry Soper at NZH: Colin Craig open to a political comeback

Former Conservative Party leader Colin Craig has taken a hammering over the past week but if he is feeling the heat, he is not letting on – and is even considering a possible comeback.

“My concern has always been about conservative causes and serving conservative people. That’s something that matters to me … nothing has changed in that respect.

“If I got a chance to serve people, I’d be very happy to do that.”

Craig said the legal issues surrounding the defamation appeal will be considered before next year’s election and a comeback is possible.

Sounding chipper, he said if he can work with the party he founded, but spectacularly fell out with, he would be very happy to.

“My wife and I poured years of savings and time and energy into it and our love for the party and love for the members and supporters hasn’t changed.”

Earth to Colin: It. Is. Not. Going. To. Happen.

Craig’s political career is in non-resurrectable  tatters. This is in large part due to his own actions, but willingly aided and abetted by Jordan Williams and Whale Oil, who have made sure there is no chance of any comeback.

Leighton Baker, acting spokesman for the Conservatives, was last night cold on the idea Craig might get back into politics with the party.

“The Conservative Party aren’t offering Colin any positions. He’s never made any request to us for a position … and he does not hold a position with us, so no.”

When asked if Craig had damaged the Conservative Party brand, Baker said there was no doubt he had.

“It’s a struggle. The focus is on personalities and Colin Craig rather than the policies we stand for. So that’s a bit sad,” he said.

“Am I feeling positive? I’m not terribly encouraged today to tell you the truth, it’s been a rough day. But we’re Kiwis, we never say die, we’ll hang on for the next breath so we’ll keep on going.”

The Conservative Party can’t take back Craig, nor can they take any more of Craig’s money, without looking even worse than they are now.

Craig is finished in politics.

The Conservative Party currently appear to have no chance of coming back from this debacle, unless they inherit another rich ambitious person who doesn’t have the baggage or risks that Craig has.

A proper Conservative Party could establish a sizeable niche in New Zealand’s political mix.

An improper Colin Craig conservative party has crashed, burned and all that’s possible now is residual smouldering.

UPDATE: Newshub – Conservative Party doesn’t want Colin Craig back

“It’s not happening.”

With those words, the Conservative Party has perhaps dealt a blow to what remains of Colin Craig’s political ambitions.

The party’s founder and former leader hasn’t ruled out returning to politics once the dust from his legal battles settles. But it probably won’t be with the party he spent millions of dollars bringing to life.

“Colin Craig is not a member of the party, he has no position in the party, he hasn’t been offered a position in the party and he hasn’t asked for one, so it’s not happening,” board chairman Leighton Baker told Paul Henry on Tuesday.

“Colin resigned as a member of the party, so he’s got nothing to do with the party anymore.”

The party is struggling and may need to rebrand.

There’s a chance when the next election rolls around, they won’t even be calling themselves the Conservative Party anymore, the brand is so damaged.

“A lot of people have put that to us in the last couple of days, and as a board we’ll sit down and definitely have a look at that,” says Mr Baker.

“But at the end of the day New Zealand still needs a conservative voice, and at this stage we’re going to be it.”

With the election only about a year away, Mr Baker admits there’s even a chance they may not contest it.

“We haven’t sat down as a team yet and discussed it.”

Potential candidates are also a bit thin on the ground, with Mr Baker saying only a “few” of the 50 who stood in 2014 have expressed an interest in having another go.

Not surprising there is a lack of interest.