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.

Expanded protection for politicians?

Vernon Small thinks that The Hagaman-Little defamation case looks to have expanded protection for politicans

…without a lot of fanfare this week the rights of politicians to speak out without forking out on defamation claims seem to have been extended.

Of course, MPs already have that protection when speaking in the House under parliamentary privilege.

But their qualified privilege, beyond the confines of parliamentary debate, appears to have been broadened in a significant way – pending an appeal – with the release of Karen Clark’s considered judgment in relation to the defamation case between business couple Earl and Lani Hagaman and Labour leader Andrew Little.

As was widely reported, the jury found in Little’s favour in respect of Lani Hagaman’s claims.

In the case of Earl Hagaman’s claims it found by a majority that in one of the six causes of action Little had defamed him, but the jury could not agree whether he had lost the protection of qualified privilege.

The jury could also not agree whether Little had defamed Hagaman on four of the other five claims.

What is interesting about Clark’s judgment – and what is likely to spark a forensic analysis by politicians and those who deal with them – is her explanation of her ruling on qualified privilege including an acknowledgement that she may have expanded the common law privilege.

(Though she notes that is “matched” by the check on misuse in the Defamation Act, which stipulates that a defence of qualified privilege fails if publication was “predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”.)

I would expect that “predominantly motivated by ill will” could be difficult to prove on the balance of probabilities.

It may never be tested in court but could ‘ill political will’ be considered sufficient?

Whether the Hagaman case leads to a significant extension of the protections for politicians – and an erosion of individuals’ opportunity to win defamation actions against them – remains to be seen.

These cases are always determined on the facts. As much as there is a precedent being set here, the core of Clark’s judgment applies specifically to the Leader of the Opposition and the constitutional requirements on that office-holder.

So it is quite a narrow application of the law.

Little established his duty to make the comments “to an audience who had an interest in receiving those communications” and that it was in the public interest that his freedom of expression should prevail “over protection of reputation”.

But will we in future see attempts to extend Clark’s logic beyond the Opposition Leader, perhaps to those spokespeople with delegated roles, or even at a longer stretch to MPs generally?

The Court of Appeal’s view will be well worth watching.

Yes it will, if it happens. If Earl Hagaman dies first we may never have this ruled on by the Court of Appeal.

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.

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.

Hagamans want retrial, Little wants to campaign

Yesterday Lani Hagaman said that she favours a retrial in her and her husband Earl’s defamation claim against Andrew Little, and she may also appeal the finding on qualified privilege. This may be dependent on how long Earl stays alive.

Andrew Little wants to try to focus on campaigning for this year’s election.

NZ Herald: Lani Hagaman to push ahead with retrial in Andrew Little defamation case

In a statement, Mrs Hagaman said she had been advised the court would automatically arrange for the a retrial after the jury in the first trial was unable to reach a verdict on several of the six claims of defamation lodged by Mr Hagaman.

“While Earl is still alive I believe that it is important that every effort is made to bring his claims to completion, and I intend to do so.”

Mrs Hagaman also expected to appeal Justice Karen Clark’s decision to grant Andrew Little the defence of qualified privilege – a defence Little said was because of his “moral duty” as leader of the Opposition to question the Government.

“Because the jury was unable to reach verdicts on several of Earl’s claims, I am advised that the court now arranges automatically for those claims to be retried.

“The jury also reached a verdict that Earl was defamed by Andrew Little. However, contrary to the finding of the court on qualified privilege, my legal advice continues to be that Mr Little was not entitled to protection by that.

“As this matter remains unresolved, I believe it requires clarification.”

Clarification would help in a legal sense, but neither a retrial nor an appeal will help Little in a political sense.

Labour leader Andrew Little said he had seen Mrs Hagaman’s statement seeking a retrial.

“I have taken every opportunity to resolve this matter and I have faced up to my responsibilities.”

He said his priority now was the election and issues such as housing and health.

“Fixing these problems means changing the Government and that is my focus.

“As this matter could be subject to further court proceedings, I will not be commenting further.”

Little’s political future will depend to an extent on how long Earl Hagaman remains alive.

A retrial is unlikely before the election. I don’t know long it will take to have an appeal. But either hanging over Little over the next few months will be an unwelcome distraction for him.

Hagamans want a new trial

Lani Hagaman has said she believes every effort should be made to bring her husband’s claims of defamation to completion.

That’s not what Andrew Little will have wanted to hear, but there could be a few lawyers and judges interested in seeking legal clarification on qualified privilege.

Stuff: Hagamans will keep fighting Labour leader Andrew Little in court

In a statement on Wednesday Lani Hagaman said because the jury was unable to reach verdicts on several of Earl’s claims, she had been advised the court now automatically retries those claims.

“The jury also reached a verdict that Earl was defamed by Andrew Little.  However, contrary to the finding of the court on qualified privilege, my legal advice continues to be that Mr Little was not entitled to protection by that.

“As this matter remains unresolved, I believe it requires clarification,” she said.

“While Earl is still alive I believe that it is important that every effort is made to bring his claims to completion, and I intend to do so.”

No comment so far from Little.

Avoiding defamation: lessons for Little

Andrew Little began as Leader of the Opposition in Parliament by saying “Cut the crap!”. He has tried to present himself as a decent honest politician who would do things differently.

Instead he copied the dirty attack tactics of Winston Peters, except that he left himself open to being sued for defamation. And when he was threatened with exactly that he took far too long to back down and half apologise.

So he got dragged into court when his late offer of a settlement and half apology was turned down.

This case has been costly, ikt’s just not yet clear who has to pay all the costs, which amount to hundreds of thousands of dollars in legal fees.

It is important that opposition MPs and especially the Leader of the Opposition holds the Government to account and questions issues of democratic and public concern.

Members of Parliament have special legal protections because of this – they can claim qualified privilege.

But this also should raise their levels of responsibility.

Little could have handled this much better if he really wants to be a more honourable but effective leader.

Here is the media statement from Little that started this expensive and inconclusive political and legal exercise: Auditor-General must investigate Niue deal for donor

It is loaded with political insinuations that associate Earl Hagaman and his Scenic Circle company.

Here’s a suggestion as to how Little could have done it better:

Auditor-General must investigate Niue deal for donor

The public have a right to know if there is any connection between a donation of   $100,000 to the National Party and the tender process and awarding of a hotel management contract which led to a Government-funded, $7.5million upgrade to a Niue resort, Leader of the Opposition Andrew Little says.

“Today it was revealed that owner of the Scenic Hotel Group, Earl Hagaman made a substantial donation not long before his company was awarded the contract.”

“It is why I have today written to the Auditor-General asking her to investigate whether there was any connection between the two. I have no evidence of impropriety, but it is important that this is checked out.”

“We must have questions answered on how the tender process worked, who if anyone knew about links between donations and the tenderer, and whether Niuean people will ultimately benefit from the resort’s funding. The perception of propriety is key” Leader of the Opposition Andrew Little says.

Little should have responded to any follow up media questions by saying that it was now up to the Auditor General and he would not comment any more until the results of any investigation were known.

This would make it clear that it was holding the government to account and not an attempted political hit job.

It should have avoided any media mayhem or threats of defamation.

Earl Hagaman or Scenic Circle could have released a statement denying anything improper had occurred.

A few people on Twitter and at The Standard would have still ranted about rich pricks getting political favours but that’s normal and would have been of little consequence.

Then when the Auditor General released her finding that there was nothing to indicate any connection between the donation and the awarding of the contract Little could have said something like this:

No problem found with Niue contract

I accept the finding by the Auditor General that there was no link found between a personal donation by Earl Hagaman to the National Party and the awarding of a hotel management contract to his Scenic Circle Company.

As Leader of the Opposition it is important that I hold the Government to account and that I question possible improprieties. I apologise if any impropriety was inferred or perceived in this case.

Little would have done his job effectively, in this case with no wrong doing found,and with no egg on his face.

No direct damage would have been done, nor any unintended collateral damage.

It is very unlikely there would have been any defamation threats or actions, therefore no large costs nor distractions from Little’s job as Leader of the Opposition.

It would have improved his chances of becoming Leader of the Government.

And he would have had more time to look for actual impropriety on the part of John Key and the National Party.

He may even been able to have some success in holding Murray McCully properly to account over the Saudi sheep deal.

Little picked the wrong target – that will happen sometimes – but in attacking too strongly without evidence, either targeting a National donor or being reckless about collateral damage, failing to back off and apologise in a timely fashion, he distracted attention from fights that should have been a priority.

I hope Little has learnt something from this, eventually.

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

‘Qualified privilege’ unresolved after defamation case

What ‘qualified privilege’ allows and doesn’t allow politicians to say outside Parliament remains unresolved after the Hagaman v Little defamation case.

There are questions about whether the judge should have instructed the jury to allow qualified privilege for Labour leader Andrew Little.

While the jury found that Little had made a defamatory statement affecting Earl Hagaman they couldn’t decide whether Little was protected by qualified privilege. And the jury couldn’t decide whether four other statements constituted defamation or not.

Little’s April 2016 statement Auditor-General must investigate Niue deal for donor that I presume is the one the jury found to be defamatory said:

John Key must come clean on how a donor who gave more than $100,000 to his party during a tender process, won a hotel management contract which led to a Government-funded, $7.5million upgrade to the resort, Leader of the Opposition Andrew Little says.

“Today’s revelations about the Scenic Hotel Group and its resort contract in Niue stink to high heaven following its dodgy deals with SkyCity and the Saudi sheep deal.

“It is why I have today written to the Auditor-General asking her to investigate whether Earl Hagaman – who was the largest living financial donor to the National Party – giving money to the party at the same time his company was tendering for the Niue contract was above board.

In May 2016 the Hagamans asked for an apology from Little.  Stuff: Andrew Little refusing to apologise over his comments about a Niue resort deal

Little looks set to face defamation proceedings after ignoring an ultimatum and failing to apologise to the Hagamans.

In a statement from Lani Hagaman she said she would “see Mr Little in court” after he failed to retract and apologise his comments that a Niue resort deal they were awarded “stunk to high heaven”.

Little has written to Hagaman’s lawyers saying he has a “constitutional duty to challenge the actions of the Government over the expenditure of public funds”.

He will address the issues with the Hagamans once the Auditor-General has dealt with his request, either by “concluding an investigation or declining to conduct one” regarding a Niue resort deal.

In September 2016 the Auditor-General found nothing wrong with the awarding of the contract. Stuff: AG clears contract at centre of political donations row

The Auditor General has found there was nothing unusual about the selection of Scenic Hotel Group as the operator of a Niue tourism resort at the centre of a political row over a six figure donation to National.

Auditor General Lyn Provost said from the available information her office had found there was a standard procurement process with reasoned and documented analysis for the selection of Scenic Hotel Group to operate the resort, and for the subsequent investment of New Zealand international development assistance funds in expanding the resort.

Little is now being sued for defamation by the Hagaman’s after refusing to apologise and retract a statement that the deal “stunk to high heaven”.

Little said in a statement the limits to Provost’s mandate meant she was unable to address the key issues he had raised.

“I have a duty as Leader of the Opposition to raise questions in the public interest and respond to media stories on the use of public funds.”

He would not comment further as the matter was before the courts.

No apology, in fact Little questioned whether the Auditor-General had addressed the issues he raised.

Then just over a week before the defamation was due to go to court Little issued via a media a statement an apology of sorts – Statement re Earl Hagaman

It was a matter of public record that Mr Hagaman had donated $101,000 to the National Party in that same month. This generated considerable media interest. As Leader of the Opposition, I considered I had an obligation to respond to media questions on the issues which related to government actions. I referred the matter to the Auditor-General because I believed the public was entitled to be reassured. My focus was, and has always been, on holding the Government to account.

Throughout, the Hagamans have vigorously maintained there was no connection between the award of the contract to Scenic and Mr Hagaman’s donation. The Auditor-General did not establish any connection.

In those circumstances, I thought the matter should be resolved. Over the last three months, I have made a serious effort to do that. Today I want to publicly apologise unreservedly to Mr Hagaman for any hurt, embarrassment or adverse reflection on his reputation which may have resulted from my various media statements. I have offered that apology to the Hagamans. I have also offered to make a substantial contribution towards the Hagamans’ costs; an amount I am advised, was greater than would likely have been awarded by the Court.

I want to make it clear that the object of the criticism was the actions of the National government and that I intended to reflect no impropriety on the part of Mr Hagaman. I accept that no connection has been established between the donation and the award of the management contract and the hotel upgrade.

So Little accepts that no connection was found between the donation and the contract – in other words, his accusation was unfounded. And he apologised unreservedly “for any hurt, embarrassment or adverse reflection on his reputation”.

In court Little also apologised – RNZ: Andrew Little defends efforts to settle defamation case

Mr Little told the court he accepted the Hagamans were entitled to an apology, and letters were exchanged between his lawyers and the Hagamans about that.

“As I’ve said, once the Auditor-General did her inquiry, I accepted her conclusion there was no impropriety and I was happy to give them a public apology.

I can find no indication that Little accepted the A-G’s finding, in fact he said “she was unable to address the key issues he had raised”.

Mr Little said he was sorry for any hurt he had caused the Hagamans, and apologised to Lani Hagaman in person in court today.

“I apologise for the words … causing you hurt and I stand by the efforts I’ve made to resolve this matter,” he said.

So Little acknowledged causing hurt and apologised.

Despite this the jury found that Little had not defamed Lani Hagaman, but they did agree he had defamed Earl Hagaman. Little’s defence was that he had qualified privilege.

In summing up Judge Karen Clark had said that qualified privilege was a defence that Little could use – from Stuff:

The onus was on the Hagamans to prove that Little’s comments had the meaning they claimed and that they were defamatory.

…the Hagamans were only required to prove their case on the balance of probabilities, not beyond reasonable doubt as in a criminal case.

The “crucial first step” to identify the meanings of Little’s words, as ordinary, reasonable person would understand them.

If they agreed with the Hagamans’ interpretation of the phrases, they then had to decide whether they were defamatory and had lowered their reputation in the eyes of right-thinking people.

Clark said she had ruled that Little’s comments were protected by qualified privilege as he had a duty, “whether legal or social or moral”, to comment.

However, that defence could be “defeated or effectively negated” if the jury found his comments were predominantly motivated by ill will targeted directly at the Hagamans, or if he had taken improper advantage of his privilege.

This could be legally contentious. Nick R, who I believe may be a lawyer, stated at Kiwiblog:

Earl Hagaman might yet be able to appeal the decision to allow the qualified privilege defence to go to the jury.

This is common law qualified privilege, and it is far from clear that the Judge was correct to allow it in this case. But whether Mr Hagaman appeals that is another question.

Defamation actions against politicians are not common, and this may be without precedent.

Asher Emanuel sat through the trial and wrote at The Spinoff in Watching the Hagaman-Little defamation trial, it felt like everybody lost:

Throughout the trial both sides hinted or at times plainly stated the other side was politically motivated. But wasn’t this Little’s job, as an opposition politician, to be critical of the government and its supporters?

Actually, that’s sort of what the Judge ruled, allowing Little to raise a defence which hadn’t been applied before in a similar situation in New Zealand or, as far as I am aware, in countries with comparable defamation law.

So it may be a legal first.

Little couldn’t be liable for defamation when speaking as leader of the opposition on a matter of public interest and on which questions were being put to him. (With the condition that he could be liable if he took improper advantage of the occasion or was mainly motivated by ill-will towards the Hagamans, both of these being questions for the jury.) In the arcane language of defamation law, he was speaking on “an occasion of qualified privilege”.

In summary, Little made at least one statement making unfounded allegations that he concedes hurt the Hagamans, and he has apologised for that.

The jury found that one statement was defamatory (they also found that one wasn’t and couldn’t agree on four others). A jury majority couldn’t decide whether the defamatory comment was covered by qualified privilege.

This was not a clear conclusion.

And the judge broke new legal ground allowing qualified privilege.

Lawyers often like to test new precedents in higher courts to get a definitive ruling on it.

However it was said in court that Earl Hagaman is dying, so he may not want to take this matter any further. He may not survive long enough to see it through if he did.

But if it did go to another trial or an appeal it may bring some clarification to what is currently a confusing situation on qualified privilege.

It would be beneficial for potential targets of defamatory comments, and for politicians, to know where the law stands on qualified privilege. At this stage it remains unresolved.

Little left to sweat over weekend

The judge summed up in the defamation trial this morning and the jury retired to consider the fate of Andrew Little.

Late this afternoon the jury were excused for the weekend and will return on Monday to continue. It will be an anxious weekend for Little.

The judge said that Little was able to claim qualified privilege as Leader of the Opposition so the Hagamans had to prove that what Little said was bad enough to strip away that protection if Little had lowered their reputation in the eyes of right-thinking people”, on the balance of probabilities (a lower hurdle than ‘beyond reasonable doubt’ of criminal trials).

ODT (NZME): Little to wait for trial verdict

Labour leader Andrew Little will spend the weekend in limbo on the verdict of his defamation trial – the jury was still deliberating and will meet again on Monday to continue.

After a five day trial, the jury was sent out on Friday morning to decide whether Little had defamed hoteliers Earl and Lani Hagaman for comments he made about a $100,000 donation to the National Party a month before their Scenic Hotel Group secured a management contract over a hotel in Niue.

The jurors returned to the courtroom twice to ask questions during about five hours of deliberations.

In summing up…

… Justice Karen Clark told the jury to put aside any sympathies they might feel for any of those concerned or any political views they might have.

She said if the jury decided damages were required, they should assess what was “fair and reasonable” for both the Hagamans and Little but did not need to consider what was affordable for Little.

She said they should not try to compare the case with other damages awards in defamation cases.

Earlier from Stuff:

The onus was on the Hagamans to prove that Little’s comments had the meaning they claimed and that they were defamatory.

However, the Hagamans were only required to prove their case on the balance of probabilities, not beyond reasonable doubt as in a criminal case.

The “crucial first step” to identify the meanings of Little’s words, as ordinary, reasonable person would understand them.

If they agreed with the Hagamans’ interpretation of the phrases, they then had to decide whether they were defamatory and had lowered their reputation in the eyes of right-thinking people.

Lani Hagaman had not been named by Little in any of his comments so…

… the jury had to decide whether an ordinary, fair-minded reader would identify her as being criticised.

Earl Hagaman and their company Scenic Circle were named.

On qualified privilege:

Clark said she had ruled that Little’s comments were protected by qualified privilege as he had a duty, “whether legal or social or moral”, to comment.

However, that defence could be “defeated or effectively negated” if the jury found his comments were predominantly motivated by ill will targeted directly at the Hagamans, or if he had taken improper advantage of his privilege.

On damages…

…Clark said they were about vindicating the plaintiff to the public and providing some compensation for wrongdoing.

Defamation cases like this were relatively rare in New Zealand, and had to be considered on the specific facts. Damages awarded in other trials provided “no reliable guideline or benchmark” to the jury, she said.

Instead, jurors had to use common sense and good judgement when setting a figure, ensuring it was fair and appropriate.

Exemplary, or punitive, damages could only be awarded if Little had acted “in flagrant disregard” to the rights of the Hagamans.

It was important that the jury “not get carried away” in terms of any sum, while they should avoid “doubling up” with general damages and exemplary damages.

She encouraged the jury to reach a unanimous verdict but in some circumstances a majority verdict would suffice if at least 9 jurors agreed.