Williams breached trust and confidentiality agreement

Last week a jury awarded Jordan Williams $1.27 million in his defamation  case against Colin Craig. Williams successfully claimed that Craig had lied about him in a press conference and a booklet that was delivered to most homes around the country.

However in evidence it was alleged that Williams had breached a confidentiality agreement made in mediation between Craig and Rachel MacGregor through the Human Rights Commission.

Yesterday a decision released by the Human Rights Review Tribunal (MacGregor v Craig [2016] NZHRRT 6) detailed the breaches of trust and confidentiality by Williams.

[50] On or about 22 May 2015, approximately three weeks after the 4 May 2015 mediation, Mr Craig was told by a member of the Conservative Party Board (Ms Christine Rankin) there were rumours Mr Craig had paid off Ms MacGregor to cover serious misbehaviour. Ms Rankin added she was in possession of information sent to her by an informant. This information turned out to be a poem taken from a letter Mr Craig had sent to Ms MacGregor on 24 December 2013. That letter was part of the material relied on by Ms MacGregor in support of her sexual harassment complaint. At about the same time as his discussion with Ms Rankin Mr Craig was told attempts were being made to remove him as leader of the Conservative Party.

[51] By 30 May 2015 it appeared to Mr Craig other Board members (including the Chairman, Mr Brian Dobbs) had been given details about the mediation as well as confidential information. On 16 June 2015 Mr Craig received an anonymous text quoting from the 24 December 2013 letter and on 19 June 2015 the Whale Oil blog published extracts from the confidential documents. On the same day Mr Craig felt compelled to stand down as leader of the Conservative Party. 14

[52] By this time Mr Craig was certain the source of the information was Mr Jordan Williams. His suspicions were confirmed when Mr Williams gave evidence to the Tribunal that it was he (Mr Williams) who had provided the information to members of the Board and to Mr Slater of the Whale Oil blog. He explicitly acknowledged he did not have Ms MacGregor’s permission to disclose the information and indeed had been expressly instructed by her not to disclose the information to anyone. The disclosure was also contrary to an express assurance given by Mr Williams to Mr Bevan that the information relating to Ms MacGregor’s sexual harassment claim and in relation to which Ms MacGregor had, prior to the mediation, confided in Mr Williams would be kept confidential.

So Williams distributed confidential information to members of the Conservative Party and to Cameron Slater at Whale Oil despite being “expressly instructed by her not to disclose the information to anyone”, and despite an express assurance that Williams gave to lawyer Mr Bevan that the information would be kept confidential.

Ms MacGregor and Mr Jordan Williams

[56] Ms MacGregor met Mr Jordan Williams through her work with the Conservative Party. After her resignation she confided in Mr Williams because she knew he was a lawyer and someone who understood politics. She thought he would understand her situation and be able to provide good advice. She showed him the correspondence from Mr Craig but did not give him copies or permission to make copies of any of that correspondence. Mr Williams helped Ms MacGregor to put her claim in chronological order and to prepare a file note which was then sent to Mr Bevan.

[57] Some time later, prior to the mediation, Ms MacGregor and Mr Williams began a romantic relationship. At the time Mr Williams allowed Ms MacGregor to store certain documents, including correspondence between Ms MacGregor and Mr Craig, in the safe at his (Mr Williams’) work place. Mr Williams assured Ms MacGregor only he had access to the safe and that the material would be secure.

[58] At the time Ms MacGregor confided in Mr Williams she was under no obligation of confidentiality to Mr Craig (the mediation had not yet been agreed to and had consequently not taken place) and Mr Craig accepted in evidence she was entitled to speak to whomsoever she wished prior to the mediation confidentiality agreement being signed.

[59] When in November 2014 Ms MacGregor told Mr Bevan she had sought advice and counsel from Mr Williams, Mr Bevan decided to speak to Mr Williams about the importance of confidentiality, believing such discussion justified in the light of Mr Williams’ mention by Nicky Hager in his Dirty Politics: How Attack Politics is Poisoning New Zealand’s Political Environment (Craig Potten Publishing, Nelson, 2014). Mr Bevan contacted Mr Williams by telephone on 26 November 2014. Mr Bevan (inter alia) stressed the importance of Mr Williams keeping confidential the information Ms MacGregor had shared with Mr Williams. Mr Williams told Mr Bevan that he (Mr Williams) was a lawyer holding a practising certificate, but working in-house. He made it clear he was not acting for Ms MacGregor but that he was treating (or would treat) information he obtained from her on the same confidential basis as he would if she were his client. This gave Mr Bevan (and Ms MacGregor) a level of assurance Ms MacGregor would not be compromising her chances of a settlement by confiding in and seeking help from Mr Williams. Mr Williams also told Mr Bevan that he (Mr Williams) had a romantic interest in Ms MacGregor.

[60] In his evidence Mr Williams confirmed Mr Bevan’s account of the November 2014 discussion and that he (Mr Williams) had given Mr Bevan an assurance he would keep the information confidential as if Ms MacGregor were a client. Mr Williams also confirmed to the Tribunal he had subsequently received from Ms MacGregor an email dated 18 June 2015 asking him to return any copies of letters she had received from Mr Craig and asking that he not make any copies as she did not want the letters used against Mr Craig. Mr Williams further told the Tribunal he ignored the email and was the person who took the two photographs of the poems subsequently published on the Whale Oil blog. He took these steps knowing he did not have Ms MacGregor’s permission to photograph or distribute the documents.

In the defamation  trial Williams attempted to justify his actions, but what the Tribunal says here looks quite bad for Williams.

I think that Craig is justified in being seriously aggrieved by the actions of Williams.

However Craig reacted very poorly, especially in his breaches of the confidentiality agreement and his very public attacks on MacGregor knowing that she was constrained by the confidentiality agreement.

It’s somewhat ironic that as a result of legal actions to date MacGregor has been awarded $128,780 as an innocent victim, compared to Williams being awarded $1.27 million despite being him breaching trust and the confidentiality agreement, and provoking Craig into also breaching the confidentiality agreement, plus making accusations against Williams resulted in the defamation proceedings.

Craig has indicated he may appeal the defamation decision and damages award so it may not be the end of that matter.

But currently Williams is the major winner here so far, despite:

Mr Williams told Mr Bevan that he (Mr Williams) was a lawyer holding a practising certificate, but working in-house. He made it clear he was not acting for Ms MacGregor but that he was treating (or would treat) information he obtained from her on the same confidential basis as he would if she were his client.

Mr Williams also confirmed to the Tribunal he had subsequently received from Ms MacGregor an email dated 18 June 2015 asking him to return any copies of letters she had received from Mr Craig and asking that he not make any copies as she did not want the letters used against Mr Craig. Mr Williams further told the Tribunal he ignored the email and was the person who took the two photographs of the poems subsequently published on the Whale Oil blog. He took these steps knowing he did not have Ms MacGregor’s permission to photograph or distribute the documents.

MacGregor found not to have breached confidentiality agreement

The Human Rights Review Tribunal decision (MacGregor v Craig [2016] NZHRRT 6) has determined that Rachel MacGregor did not breach the confidentiality agreement made with Colin Craig in a Human Rights Commission mediation process.

The decision found that Craig seriously breached the confidentiality agreement a number of times and made a record award of damages against Craig totalling $128,780.

The Tribunal acknowledged that it wasn’t unreasonable for Craig to assume MacGregor was involved in breaching the confidentiality agreement he later conceded that she hadn’t breached it herself, that had been done against her express wishes by Jordan Williams.

[7] A few weeks after the settlement Mr Craig became aware evidence relating to Ms MacGregor’s sexual harassment claim had apparently come to the attention of some of the members of the Conservative Party Board. On 8 June 2015, in a media interview held in a sauna, Mr Craig was asked whether he had had an affair with Ms MacGregor. Other media enquiries in similar terms followed and a poem written by Mr Craig and sent by him to Ms MacGregor appeared on the Whale Oil blog.

[8] Believing Ms MacGregor was, contrary to her obligations under the settlement, leaking confidential documents sent to her by Mr Craig, Mr Craig decided to correct the information which had thus been made public. Rather than cancelling the settlement agreement Mr Craig embarked on a course of action which he knew would result in himself breaching the agreement. That course of action included calling a press conference on 22 June 2015, media interviews on the days which followed (23 and 24 June, 30 June and 10 July 2015) and distributing a letter to almost every member of the Conservative Party. In addition, on 29 July 2015 he held a further press conference to launch a booklet denouncing dirty politics and announcing legal action against Mr Cameron Slater (proprietor of the Whale Oil blog), Mr John Stringer (a member of the Conservative Party Board) and Mr Jordan Williams. The booklet was distributed widely throughout New Zealand.

[9] Mr Craig accepts that on each of these occasions he breached the confidentiality obligation in one way or another but claims justification for doing so on the grounds Ms MacGregor made misrepresentations during the mediation meeting and that Ms MacGregor herself, post 4 May 2015, disclosed confidential documents covered by the settlement. On 31 August 2015 (a month after the present proceedings were filed) Mr Craig purported to cancel the settlement agreement pursuant to s 7(3) of the Contractual Remedies Act 1979.

[47] In these circumstances we conclude the confidentiality stipulated in the “Mediation meeting confidentiality agreement” signed by Ms MacGregor and Mr Craig on 4 May 2015 and reinforced by s 85 of the Act covered all of the matters discussed and agreed to at the mediation meeting, specifically the sexual harassment claim, the financial issues, the settlement and the two components of that settleme

[53] It was against this background that Mr Craig at least initially argued (prior to Mr Jordan Williams giving evidence) that both prior to and during the mediation Ms MacGregor had not been truthful about what she had already disclosed to others about her sexual harassment claim and the persons to whom such disclosure had been made. In addition Mr Craig believed she and Mr Williams had been working in unison in leaking the confidential documents to the Board, media and others.

[54] However, in closing submissions it was conceded by Mr Craig there was no basis on which the Tribunal could find on the evidence given by Ms MacGregor and Mr Jordan Williams that Ms MacGregor had consented to the release of the documents relating to her sexual harassment complaint against Mr Craig. In our view this concession was properly made. Ms MacGregor was an honest witness whose evidence was largely supported by the evidence given by Mr Bevan and none of the witnesses who gave evidence claimed they had received confidential information from her. Indeed she declined to speak to the Board or to the media about the sexual harassment allegations and the circumstances of her resignation. We accept her evidence in its entirety.

[119] It is difficult to see any basis for criticising Ms MacGregor’s conduct. With the exception of the single tweet of 22 June 2015 (of which Mr Craig made nothing) she has at all times adhered to the settlement and confidentiality obligation. It was conceded by Mr Craig in closing there was no evidence to support his initial allegation that she consented to or assisted in the release to third parties of highly confidential documents relating to Mr Craig and her sexual harassment complaint. Even when provoked by the 22 June 2015 media conference, the responsible step taken by her was to issue (through Mr Bevan) a media release to the effect that because she was bound by the confidentiality agreement she would be unable to correct factual inaccuracies in Mr Craig’s statement until Mr Craig confirmed that should she do so he would not take legal action under the agreement.

[122] In mitigation his main points were:

[122.1] He did not cause the leak of confidential information which turned unsubstantiated rumour into what was purported to be documented fact. Mr Craig was the target of the leak and tried to defend himself in an unprecedented situation.

[122.2] The leak put him under enormous pressure as his political career and many friendships unravelled.

[122.3] His belief that the confidential material could not have ended up where it did without Ms MacGregor’s consent or at least tacit approval was understandable.

So while it is understandable that Craig was suspicious of MacGregor being involved in breaching the confidentiality agreement the Tribunal stated “We accept her evidence in its entirety”. 

Craig jumped to an incorrect conclusion, and his actions in response were inappropriate, they seriously breached the confidentiality agreement, and caused significant harm to MacGregor as a result.

MacGregor was a victim of this and was awarded record damages as a result.