Williams appealing defamation decision

Jordan Williams has announced he is going to appeal the judgment to set aside the jury decision in the defamation case Williams v Craig, saying he doesn’t want witnesses to have to go through a new trial and an appeal is “the best way forward”. His other option was to walk away with nothing but a huge legal bill.

In general for the public I think this is a good path to take, as the Court of Appeal will help clarify issues of defamation and of appropriate awards.

In September 2016 a jury awarded Williams a total of $1.27 million having found that he was defamed on two counts by Colin Craig.

On count one, the jury ordered $400,000 be paid in compensation caused for the injury to Williams’ reputation and feelings and $90,000 in punitive damages for Craig’s “flagrant disregard” of Jordan’s rights.

On count two, they ruled Craig pay $650,000 in compensation and $130,000 in punitive damages.

At the time Nick R (a lawyer) commented at Kiwiblog:

Court of Appeal can reduce any award of damages it considers to be manifestly excessive. It has done so before for jury awards in defamation cases. The CA has previously indicated that damages in defamation cases in NZ should be modest in the absence of evidence of actual pecuniary loss. That’s why I expect them to reduce this award, potentially by quite a lot.

Immediately following the verdicts Craig’s counsel requested that Judge Katz defer entering judgment as they intended applying to have the jury’s verdict set aside, so the judge deferred entering judgment.

Craig’s counsel subsequently applied to have the verdict set aside, and six months later, on 12 April 2017, Judge Katz delivered a judgment ruling that the damages awards were so high that they constituted a miscarriage of justice.

[109] …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.

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.

Craig immediately indicated he would not consent to the Court substituting it’s own award of damages, and it has now been confirmed that he has advised the court that he wouldn’t consent, and Williams put out a press release saying he didn’t want another trial, but would instead appeal Judge Katz’s judgment.

Statement from Jordan Williams

Lawyers for Jordan Williams are appealing the judgment setting aside last year’s jury verdict in the Williams v Craig defamation proceedings.

Mr Williams says, “Colin Craig argued that the jury’s damages award was too high. The judge agreed but the High Court is only able to reset the damages if both parties agree.”

“Last week Colin Craig’s lawyers told Justice Katz that Colin Craig was not willing to have her determine the damages; they want a full retrial.”

“I don’t want Rachel MacGregor or my mother or any other of my witnesses to have to go through it all again. The jury made clear findings. At every stage Mr Craig has wanted to stretch things out. We have no assurance he would not appeal after a new trial. So an appeal now could get to the key issues directly. It is the best way forward.”

It probably is the best way forward for Williams, but it has risks.

A new trial would presumably mean that there was no way that Williams could recover any costs from the first trial, and a new award would likely be significantly lower given Judge Katz’s judgment. Williams’ counsel would have had to seriously consider claiming significantly lower damages to avoid a repeat of the first trial.

NZ Herald have reported a response from Craig in: Jordan Williams appeals to try to avoid retrial in Colin Craig defamation case

Craig said Williams had every right to appeal, but he believed a retrial was the right way forward.

He said Justice Katz’s decision said a miscarriage of justice had occurred so he was not willing to accept the jury’s decision he had defamed Williams.

But Judge Katz said that the miscarriage of justice was due to the damages award being “well outside the range that could reasonably have been justified in all the circumstances of the case”, the Judge did not reject the jury’s decision that Craig had defamed Williams.

[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…As a result, there is no basis for entering judgment in favour of Mr Craig (as opposed to ordering a retrial).

So on to an appeal. The Court of Appeal is limited on what it can rule on, I think just on points of law in the judgment. So presumably Williams will ask for the setting aside to be overruled. I don’t know if the amount of damages can be changed on appeal, or if it’s an all or nothing situation.

Judge Katz took months before delivering her Judgment, and is likely to have anticipated a likely appeal, so is likely to have taken a lot of care in her Judgment. That doesn’t rule out having made a mistake in law, but it may narrow the grounds for appeal.

In the meantime there is one other matter from her judgment that I don’t know if it is still relevant or not, costs.

[113] This outcome is likely to raise some difficult costs issues. Leave is accordingly reserved to file costs memoranda in relation to both the trial and the present application, if costs cannot be agreed. Any memorandum on behalf of Mr Williams is to be filed by 5 May 2017. Any memorandum on behalf of Mr Craig is to be filed by 19 May 2017. Counsel are to indicate in their memoranda whether a hearing is sought in respect of costs.

I have no idea what can or may happen with this, given the verdict has been set aside. Perhaps we will find out next month. Or perhaps it will have to wait for the outcome of the appeal.

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

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.

 

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.

NZ donations to Clinton Foundation

On the surface a revelation by the Taxpayers’ Unionthat New Zealand has given donations to the Clinton Foundation and intends to donate more sound quite questionable, but it may not be as bad as first impressions may give.

Government Set to Give Clinton Foundation Another $5.5M

First I’ll deal with the last paragraph:

Given New Zealand’s faux pas in co-sponsoring the UN Security Council resolution condemning Israel on Christmas Eve, and the heavy criticism of New Zealand which has resulted, the continued support of the Clinton Foundation risks even more damage to New Zealand’s ability to wield any influence in the US.

For an organisation that purports to be political independent  that’s a curious slant on this, taking a swipe at the UN vote which has pretty much nothing to do with the donations.

The Taxpayers’ Union can reveal that the Government has budgeted to give another $5.5 million dollars of taxpayers’ money to the controversial Clinton Foundation, despite Mrs Clinton’s failed US Presidential bid and controversy over improper ties between the Clinton Foundation, the State Department and donations from foreign governments to the foundation while Ms Clinton was US Secretary of State.

Figures obtained by the Taxpayers’ Union under the Official Information Act show that to date Kiwi taxpayers have forked out $7.7 million to the Clinton Foundation’s “Health Access Initiative” with $2.5 million and $3 million earmarked for 2017 and 2018 respectively.

Given the lessons of the Saudi Sheep saga, we are staggered that MFAT appear to still think handing out money for diplomatic purposes is sensible.  Even worse, this money comes from the NZ Aid budget which should be going to programes which are the most effective at helping the world’s poor – not sidetracked into political objectives.

Again, this has little if anything to do with the Saudi sheep ‘saga’.

No proof is provided that the Clinton Foundation donations have “political objectives”.

It is possible that officials have reason to believe that the Clinton Foundation’s work does provide good value for money, although given the controversy in the US that seems unlikely. The refusal to front up and explain leaves a stench of buying political access.

More loaded comments.

The Taxpayers’ Union provide a copy of a letter explaining what the donations are for.

mfatclinton1

mfatclinton2

That doesn’t sound bad at all.

Is the Taxpayers’ Union trying to play politics with straight forward aid?

Their media release is loaded with a number of political issues that  may have little or no relationship to this sort of aid donations.

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.