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.

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.

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

Little gets off defamation – sort of

 

There jury has returned a muddly verdict in the defamation case the Hagamans took against Andre Little.

Graeme Edgeler was first off the Twitter blocks with the verdicts:

Jury unanimous that Little did not defame Mrs Hagaman.

That doesn’t surprise me, Lani Hagaman wasn’t named so I presume tried to prove defamation be association. I suspect she may have involved herself because of the risk that Earl might die before the trial.

Agree he defamed Mr H. at least once.

That’s no surprise either.

But no agreement on whether he has a defence.

The jury was hung on a defence of qualified privilege.

This also isn’t very surprising, given the political element. It would only take a few jurors to have a political slant that could affect their take on the legals aspects.

In respect of other causes of action, jury deadlocked. So no order of damages as yet. Could be a new trial.

A new trial wouldn’t be good for Little in election year, but with Earl Hagaman’s poor health that seems unlikely.

Retrial limited to questions jury couldn’t agree. Still possibility of settlement, esp. as Mrs H lost, and will be liable for some costs.

I don’t know how costs could be split.

So some relief for Little, but he doesn’t come out of it unscathed politically.

Edgeler has tweeted ” I predict they now settle”. That would be wise.

Stuff: Labour leader Andrew Little cleared of defamation against Lani Hagaman, new trial possible over Earl Hagaman comments

Labour leader Andrew Little has been cleared of defaming Lani Hagaman, but could yet face another trial after the jury could not reach a majority decision on most of his comments about Earl Hagaman.

After more than 13 hours of deliberations across two days, the nine men and three women of the jury found by a majority verdict that Little had not defamed Lani Hagaman in any of the six statements he made.

However, it could not reach a majority decision for Earl Hagaman in four of Little’s six statements on whether the comments were defamatory.

For one statement, the jury agreed by majority that it was defamatory, but could not reach a decision of whether qualified privilege applied. In another statement, it ruled the words were not defamatory.

In a media standup Little said:

The disappointment is we spent six days in the High Court and lot as lot has changed. I certainly stand by the efforts I made to resolve this issue without having to go to court.

“Would you say what you said again?”

There are some other statements that I made in some of the interviews that have been the subject of non-findings that the subject of litigation so I don’t want to go heavily into that.

I understand my job, I understand that there are always risks in my job, and people will feel caught up in a way that they don’t like in my job, and I’m not so schmuckish that I’m not prepared to acknowledge sometimes people do get hurt by things that are said, even though I don’t think they’re defamatory…

The jury ruled that one of Little’s statements was defamatory, one was not defamatory and could not reach a majority verdict on another four.

  …and even though I think I make comments in good faith and in the discharge of my moral obligations.

When I hurt people, which I never intended to do, I’m happy to take responsibility and try and make amends, and I tried to do that on this occasion, but it didn’t work.

“Have you had any advice from your lawyer as to when another trial if there were one would be able to be held?”

No I haven’t had any advice on that. This took seven months to get set down on a fast track, but there’d be other issues to resolve so I don’t know and I haven’t asked.

“Now this process has for all intents and purposes is over except for the possibility of a new case do you have a message or anything to say to Earl and Lani Hagaman personally about this process?”

I’ve given them my message, I’ve been trying to since the end of last year to acknowledge that words I used have caused them hurt, I know that, which is why I was prepared to apologise and did apologise both publicly and in court last week.

“Do you stand by those apologies today?”

Yes.

UPDATE: Graeme Edgeler has clarified his tweets at Kiwiblog:

Apologies for the misleading tweet.

The jury decision was by majority.

One of the problems with editing a tweet for brevity on a phone outside a courtroom.

There were six causes of action: Little’s initial statement, and then five over statements over the following days (eg media comment and answers to questions). The Hagamans asserted that each of these six statements defamed both Mr Hagaman and Mrs Hagaman.

The jury, by majority (which means 1, 2, or 3 jurors disagreed) found that none of the statements defamed Mrs Hagaman.

They found in respect one of the statements, that Little had not defamed Mr Hagaman.

In respect of one, they found that Little had defamed Mr Hagaman, but could not agree whether he had a defence of qualified privilege.

In respect of the other four statments, they could not agree whether they were defamatory.

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.

 

Hagamans v Little – summing up

Today in the defamation case brought by Earl and Lani Hagaman against Labour leader Andrew Little the judge will sum up the case who will then hand over the decision making to the jury. Unless there is a quick decision we may not find out a verdict until next week.

Yesterday the lawyers gave their closing addresses.

Stuff sums up in: Andrew Little ‘cruel and cynical’ in Hagaman comments, defamation jury told

Labour leader Andrew Little was “unfair, cruel and cynical” when attacking millionaire hotel owners involved in a Niue resort deal, a High Court jury has been told.

However, Little’s defence team said he was acting in his moral duty as leader of the opposition when questioning government involvement in the deal.

Little’s lawyer John Tizard said…

…Little had “a social or moral duty as the leader of the opposition to respond to questions raised by members of the public”.

The thrust of his comments were aimed at the Government, not Earl Hagaman, due to his suspicion and concern about its track record.

While the Hagamans claimed Little had made allegations of corruption “as a matter of fact”, Tizard said he had simply raised questions about the donation and contract award and requested they be answered by the Auditor General.

“It’s not an allegation that it wasn’t above board, it’s a question of whether it was or wasn’t above board.”

Little did what he could in the time he had to check the facts of the issue, and confined himself to the matter at hand rather than making irrelevant assertions.

Except there doesn’t appear to have been any facts to check – Little has (in a round about way) conceded there were none to back his allegations.

“You will make what you will of his evidence, but I suggest to you you may well conclude if anything Mr Little was overly upright in what he saw as his responsibility as leader of the opposition.”

While Little had used strong language, Tizard said he was expressing his opinion in a way that many others would choose to do.

“The mere fact it was colourful does not mean it was inflammatory.”

Comments reported in stories on TVNZ and RNZ were “cut and paste exercises” where only a small excerpt of his overall remarks were broadcast, and the jury could not be sure he had been fairly represented.

It started with a statement put out by Little.

The Hagamans’ lawyer Richard Fowler QC said…

…Little’s comments went beyond a neutral position that the issue required investigation, as his use of the phrases “stinks to high heaven”, “murky” and “dodgy deals” showed.

“As has been said before, what’s the worst possible thing for a businessman? Pretty hard to think of what’s worse once you go to the c-word – corruption.”

While the Hagamans accepted Little had to hold the Government to account as leader of the opposition, “that does not entitle you to go off and defame innocent people”.

“If they were collateral damage, if that’s what it was…that still doesn’t change anything in terms  of fundamental liability.”

He had failed to undertake any significant investigation into the issue or speak to Scenic Hotel Group before commenting, and had employed “very loose facts”.

“There is more than a whiff in the evidence of Mr Little going about what he was doing on the basis he didn’t particularly care because of course the person at the other end of this corruption continuum if you like…was in fact a National Party donor.”

“Hanging the Hagamans out to dry was unfair, cruel and cynical.”

He questioned why, if Little did not believe his comments were defamatory, he had apologised and made an offer of $100,000.

Little’s late efforts to extract himself from a tricky situation may not have been a helpful move.

His slowness and apparent difficulty in making a comprehensive apology could also be a problem – he still hasn’t given a “sorry I got it wrong” apology.

Both lawyers mentioned Earl Hagaman’s poor health (he is dying) but that shouldn’t affect legal arguments.

From what I can see this mostly comes down to two things:

  • The responsibility of the Leader of the Opposition to hold the Government to account.
  • The responsibility of politicians to make sure they have solid grounds for making serious accusations against the Government and by association if not directly against private citizens and companies.

The judge will have more to say about what the case hinges on. Then it will be up to the jury.

Little “accepted…there was no impropriety”?

In Court yesterday in the defamation case taken against him by Earl and Lani Andrew Little 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”.

However he didn’t attempt a public apology until two weeks ago, and Lani Hagaman has said in courth that the first she knew about it was being asked for a response to it by journalists.

And I don’t recall Little saying that he “accepted her conclusion there was no impropriety”.

Back in September when the report was released from 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.

The contract was referred to Provost by Labour leader Andrew Little after he questioned the company’s links to National.

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.

“Taking the issue to the Auditor-General was the right thing to do.”

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

That seems to be at odds with what he said in court yesterday.

RNZ reports on yesterday in court: 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.

“The frustration was trying to get form of apology that would be acceptable [to the Hagamans].”

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.

He still seems to be struggling with how to do an appropriate apology.

The Hagamans’ lawyer, Richard Fowler QC, questioned him closely about his claim that the couple appeared not to want to reach a resolution.

Mr Little conceded there had been an offer, but his letter in reply said while he would make an apology he did not agree to pay the costs sought or damages.

He said he thought the proposal from the Hagamans was just an opening gambit and he expected further negotiations, but the amount they claimed kept rising.

“They said $100,000, then $215,000. I thought the legal costs were excessive.”

“It included $17,000 to a PR firm, which I understood is not recoverable in court … and I wouldn’t meet that cost.”

A sensible opening gambit could have been a comprehensive apology?

Mr Fowler asked Mr Little whether it would not have been wise to check details before ruining someone’s reputation, but Mr Little disputed that.

“Given the track record of the government I thought what I was doing was right and proper.”

But instead Little is still trying to defend making accusations against the Government (part of his defence is qualified privilege, doing his job as Leader of the Opposition) and by association against the Hagamans and their company.

The case continues today. It seems to be progressing quite quickly with the cross-examination of Little starting yesterday. It has been set down for five days and so far looks likely to fit in that time frame.

 

Hagamans v Little continues

The defamation case that earl and Lani Hagaman have taken against Andrew Little continues in Wellington.

Little hasn’t been present all the time, he was in Parliament for Question Time yesterday afternoon.

Stuff: Defamation action ‘not about bankrupting’ Andrew Little, Lani Hagaman says

The wife of a hotel owner suing Labour leader Andrew Little for defamation has denied wanting to bankrupt the politician over comments he made about a Niue resort deal.

Lani Hagaman, the wife of Scenic Hotel Group founder Earl Hagaman, said receiving an apology and legal costs were her main concern, during the second day of a civil jury trial at the High Court in Wellington.

The Hagamans are seeking $2.3 million in damages for comments Little made about a $101,000 donation they made to the National Party during the 2014 election, and a contract their Scenic Hotel Group won a month later to manage the Matavai resort in Niue, which receives government funding.

Newshub: Andrew Little will pay any defamation costs from his own pocket

Mr Little says he’s taking personal responsibility and will pick up the bill should damages be awarded to complainants in a defamation case.

“I am meeting my costs. The offers I have made to settle, had they been accepted, would have been fully funded by me personally,” he said on Tuesday.

No taxpayer or Labour Party funds will be used to cover the legal fees or potential damages.

“I have a personal view about taking personal responsibility if you’re found to have done something wrong.”

He says here he is taking personal responsibility but last year had refused to apologise, even after the Auditor General, after a request to investigate by Little, found no problem with the awarding of a contract to Scenic Circle.

Little hasn’t denied making the statements but is claiming qualified privilege in making them. He has said that he has responsibilities as Leader of the Opposition to hold the Government to account, but there must also be a responsibility not to make serious accusations without any evidence.

In court Lani Hagaman has said that Little should have check facts before making the accusations.

Regardless of the outcome it doesn’t look flash for Little. He says he was only targeting the Government (serious claims without facts still looks irresponsible there) but must have been aware that his comments would look bad Hagamans and Scenic Circle.

UPDATE: Newshub: Labour leader Andrew Little gives evidence in defamation case

Mr Tizard said the Labour leader will have two defences to the defamation case.

The first is that the comments were made under qualified privilege, and the second is that “the words do not mean what the plaintiffs think they mean”.

On Little’s offers to settle:

Under questioning from his defence lawyer John Tizard, Mr Little said he became “frustrated” after trying for months to resolve the proceedings before they went to court.

“Nothing ever seemed to be acceptable,” said Mr Little.

Mr Little first offered to pay $26,000 towards legal fees and apologise, but that offer was rejected.

On March 14 this year Mr Little made another offer of $100,000 and again apologised, but that was again rejected.

Mr Little said he and his wife would have funded the six-figure offer by taking out a bank loan against their Island Bay family home.

“It was the most I could offer,” Mr Little said. The couple does not own any other property.

He apologised personally in court:

He said he did not apologise to Ms Hagaman as he had not mentioned her by name in his media statements, but during court on Wednesday he offered her an apology as she watched from the public gallery.

“I apologise to her now for any hurt,” Mr Little said.

He claimed frustration and a lack of progress in attempts to negotiate:

Mr Little said he made multiple proposals through his solicitor, but would get back rejection letters which offered scant direction on the way the Hagamans wanted to move forward.

But under cross examination he conceded that he had been sent a letter outlining the Hagaman’s demands.

Little: There was no guidance being given, it was the most bizarre form of negotiation I had ever participated in.

Newshub: He said offers to settle were flatly rejected, with little feedback given on how the couple wanted to proceed, but the Hagamans lawyer shot back.

Richard Fowler (for the Hagamans): The proposition that the Hagamans never spelt out exactly what they wanted, that’s to take your words from your evidence, is not true, is it.

Little: I don’t accept that.

Newshub: Fowler said a letter sent to Little in December, and acknowledged by his solicitor, laid out the Hagamans demands. It detailed how an apology would happen, and noted any damages would be distributed to charities.

Fowler: …that the Hagamans had never spelt out what they would require to settle is just plain wrong, isn’t it. Can you face that?

Little: Not plain wrong, I said that I’ve conceded the point that this the closest we get.

The trial will continue tomorrow.

 

Little’s statement/apology

I’m trying to understand what Andrew Little is trying to achieve with his ‘apology’ to Earl and Lani Hagaman.

A defamation case that the Hagamans are taking against Little is due to proceed in the Wellington High Court on 3 April.

The apology is just a part of a media statement Little issued yesterday. He has done it as a Labour Party statement as Leader of the Opposition so it seems to be a political statement more so than a personal apology.

LittleStatementHagaman

This was also issued as a press release via Scoop:

Statement re Earl Hagaman

Andrew Little
Leader of the Opposition

MEDIA STATEMENT

24 March 2017

So it is a Labour Party press release from Little as Leader of the Opposition. It is a political statement rather than a court statement or a personal statement and apology to the Hagamans, although an apology of sorts is included in it.

In June last year, Mr Earl and Mrs Lani Hagaman issued defamation proceedings over media statements I made about the award in September 2014 of a hotel management contract in Niue to the Scenic Hotel Group (in which they were shareholders and directors) followed by a $7 million upgrade.

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.

Little tried to generate public interest in it with this statement on 18 April 2016.

LittleStatementAuditorGeneral

The accusations in that generated media interest, and it generated objections from the Hagamans.

As Leader of the Opposition, I considered I had an obligation to respond to media questions on the issues which related to government actions.

He also has an obligation to base any serious accusations against political opponents and against private persons on facts.

I referred the matter to the Auditor-General because I believed the public was entitled to be reassured.

It appeared that Little referred the matter to the Auditor General to try to get the AG to find evidence to support his accusations.

My focus was, and has always been, on holding the Government to account.

It looked more like he was trying to smear the Government, Ministers and the Hagamans with no evidence. Little had said that the timing of the donation “stinks to high heaven”.

Throughout, the Hagamans have vigorously maintained there was no connection between the award of the contract to Scenic and Mr Hagaman’s donation.

By April 21 “Scenic Hotel Group founders Earl and Lani Hagaman are considering legal action over Mr Little’s claims about the timing of a donation from Mr Hagaman to the National Party a month before the hotel group was awarded a contract in Niue.” NZ Herald.

The Auditor-General did not establish any connection.

From a letter from the Auditor General to Little dated 7 September 2016:

LittleAGLetter

Letter: Response to request for inquiry into awarding a management contract for a hotel in Niue

So despite “The information you subsequently provided to my Office on 27 July and 2 September has been considered as part of preparing this response” the Auditor-General found no problems.

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.

There is no retraction there, and no apology for getting things wrong. Just ‘sorry if you were upset about my various media statements’. If Little’s “serious effort” to resolve things have been anything like this then it’s no wonder it is scheduled for Court.

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.

Little is trying to defend his attempts at negotiating an out of court settlement in public.

He has conceded that a “substantial contribution towards costs” is appropriate. The way things are going those costs will be mounting – in a statement yesterday the Hagamans claimed “we’ve spent more than $200,000 in legal fees in preparing for this case”.

My offers of an apology and redress have been rejected and the matter will now have to be resolved in court. That is unfortunate.

Unfortunate for Little. It sounds like he is trying to portray himself as a victim of misfortune.

I strongly believe everybody’s time, not least the Court’s, could be better used.

A remarkable comment given Little’s initial and subsequent actions, including his latest statement. The Auditor-General’s time could have been better used than on a politically motivated smear attempt.

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.

No reference there to Mrs Hagaman, or to their company.

The Hagamans and Scenic Circle were just some collateral damage in a political hit? He may not have intended to reflect on their impropriety or otherwise but you would have to be a fool to not see that naming them would reflect on them.

I accept that no connection has been established between the donation and the award of the management contract and the hotel upgrade.

He is not admitting he got it wrong so his apology is hollow. All he is doing is saying he has established no connection and the Auditor-General found no connection. He is implying that he could have been right but there is no evidence to support his accusations.

I propose to make no further statement until the proceedings are resolved.

That’s about the only sensible thing that Little has said in his statement.

Little is digging a deeper hole here, and he is flying the Labour flag over it.