Stringer v Craig

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 09 May 2022
• Neutral Citation: [2021] NZCA 168
• Docket Number: CA290/2020
• Court: Court of Appeal

Between

John Charles Stringer

Appellant

and

Colin Graeme Craig

First Respondent

Helen Ruth Craig

Second Respondent

Angela Maria Storr

Third Respondent

Kevin Eric Stitt

Fourth Respondent

Stephen Dylan Taylor

Fifth Respondent

[2021] NZCA 168

Court: Courtney, Woolford and Mander JJ

CA290/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Defamation — appeal against a High Court decision which found the respondents had defamed the appellant but upheld the defences of truth; qualified privilege and honest opinion — reply to attack privilege — proportionality of response — Defamation Act 1992

Counsel:

Appellant in Person

First to Fifth Respondents all in Person

The appeal was dismissed.

• A The appeal against the substantive judgment is dismissed.

• B The application to adduce further evidence is declined.

• C The appeal against the costs judgment is allowed. The issue of costs is remitted to the High Court for determination in accordance with this judgment.

• D We make no order as to costs or disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Courtney J)

Table of Contents

	Para No.
Introduction	[1]
Application to adduce further evidence	[6]
Background
Mr Stringer's conduct	[13]
Mr Craig responds	[26]
The aftermath	[32]
The Judge's findings	[37]
First ground of appeal: the effect of the consent judgment	[46]
Second ground of appeal: upholding the defence of qualified privilege by Mr and Mrs Craig and Mr Taylor
Relevant principles	[53]
Issue (a): the proportionality of Mr and Mrs Craig's response	[56]
Issue (a)(i): Association with Mr Belt	[59]
Issue (a)(ii): Contact with the media	[63]
Issue (a)(iii): The “20 fair questions”	[65]
Issue (a)(iv): Conclusion on proportionality of the response	[67]
Issue (b): the finding as to ill-will	[72]
Third ground of appeal: the defence of qualified privilege raised by Ms Storr and Mr Stitt	[76]
Fourth ground of appeal: the defence of honest opinion raised by all defendants	[81]
Appeal against costs award	[94]
The printing and other costs relating to the common bundle	[95]
The legal fees as disbursements on an indemnity basis	[97]
The cause of Mr Craig's reputational damage	[112]
The quantum of the fees allowed	[113]
Inconsistency with the decisions in Craig v Slater and Craig v Williams	[118]
Result	[122]

Introduction

1 This appeal is a further chapter in the saga of litigation that followed the 2014 resignation of the Conservative Party's press secretary, Rachel MacGregor, and the 2015 resignation of its leader, Colin Craig. Mr Craig perceived that he had been the victim of “dirty politics”. 1 He produced a booklet entitled “Dirty Politics and Hidden Agendas: Colin Craig vs The Dirty Politics Brigade … and Their Campaign of Lies” (Booklet) in which he identified those he considered had participated in the dirty politics against him. They included a member of the Conservative Party's Board, John Stringer.

2 Mr Stringer brought defamation proceedings against Mr Craig, his wife Helen Craig, Conservative Party officials Angela Storr, Kevin Stitt and Stephen Taylor, who had moderated the Booklet. Palmer J dismissed the claims. 2 The Judge found most of the statements complained about were defamatory. However, he upheld the following defences: truth, in respect of all but one of the statements; qualified privilege, in respect of all the statements; and honest opinion, in respect of the statements that he found to be expressions of opinion.

3 Mr Stringer appeals. 3 The grounds may be summarised broadly as being: 4

• (a) the Judge erred in relying on a consent judgment in separate proceedings to preclude Mr Stringer from raising the issue of sexual harassment by Mr Craig of Ms MacGregor, while permitting Mr and Mrs Craig to raise it in the context of qualified privilege;

• (b) in relation to the defence of qualified privilege raised by Mr and Mrs Craig and Mr Taylor, the Judge erred in finding that:

  • (i) the statements made by and on behalf of Mr Craig were a proportionate response to the statements Mr Stringer had made about Mr Craig;

  • (ii) the defendants were not predominantly motivated by ill-will;

• (c) in relation to the defences of qualified privilege raised by Ms Storr and Mr Stitt the Judge erred in finding that they were under a duty to publish the statements they had made; and

• (d) the Judge erred in finding that the respondents' expressions of opinion were honestly held.

4 Mr Stringer does not challenge the Judge's finding on the defence of truth. As a result, even if the grounds of appeal were made out, the outcome would not change in respect of all but the one statement that was held not to have been true.

5 In a separate judgment Mr Stringer was ordered to pay, as reasonable disbursements, the defendants' filing, printing and courier fees and travel costs. He was also ordered to pay as disbursements a contribution towards the respondents' legal fees prior to 29 July 2019 and the full amount of their legal fees after that date. 5 Mr Stringer appeals all aspects of the costs decision, on the grounds that:

• (a) the printing and courier costs related to common bundles prepared by the respondents which were unnecessary because he had already prepared the bundles;

• (b) the Judge erred in allowing the recovery of legal fees as disbursements on an indemnity basis because he misinterpreted comments made by Mr Stringer as a concession that the respondents' case was strong, and therefore wrongly proceeded on the basis that by the end of July 2019 Mr Stringer had accepted the strength of the respondents' defences;

• (c) the cause of Mr Craig's reputational damage was his own conduct, not Mr Stringer's attack on him;

• (d) some of the legal fees related to a different proceeding; and

• (e) the award was inconsistent with the outcome in the Williams 6 and Slater 7 cases.

Application to adduce further evidence

6 Mr Stringer seeks to rely on two affidavits for the purposes of his appeal. The respondents opposed the further evidence being adduced.

7 Generally, litigants are obliged to adduce all the evidence that is reasonably available to them at trial. It is only in limited circumstances that further evidence will be adduced on appeal. Such evidence should be fresh, cogent and credible. 8

8 The first affidavit was by Simon Lusk dated 19 March 2021. Mr Lusk was referred to in evidence in relation to the part of the Booklet that purported to be an “Exclusive interview with Mr X”. It emerged at trial that Mr X was not in fact a real person. The Judge recorded Mr and Mrs Craig's evidence that Mr Craig had written the text “but the views attributed to Mr X were primarily those he thought were held by Mr Simon Lusk, though also of some other people”. 9 The sole purpose of the affidavit was to show that Mr Lusk had no input into the Booklet.

9 Based on Mr Craig's brief of evidence, it seems that the use of Mr Lusk as a basis for Mr X was not obvious prior to trial. Mr Craig's admission that Mr X was based on Mr Lusk emerged in cross-examination. As a result, we treat that evidence as fresh. However, we see no relevance in it. The Mr X interview accounted for two of the 12 pages of the Booklet but did not feature explicitly in the Judge's findings

regarding the statements that were specifically the subject of the defamation claim. 10 In any event, whether Mr Lusk actually knew about the Booklet was not, and is not, an issue in the case. We decline to accept Mr Lusk's affidavit

10 The second affidavit is by Mr Peter Belt, the then Deputy Editor of the Whale Oil website. Mr Stringer provided Mr Belt with information about the Conservative Party and Mr Craig. Mr Belt passed that on to Mr Slater who ran the Whale Oil website. A number of emails sent by Mr Belt were put in evidence. Mr Stringer opposed the admission of the emails. Mr Stringer also says that emails from Mr Belt ought not to have been admitted in evidence because they were not known to the respondents at the time the Booklet was published in 2015 but instead were obtained as part of discovery in the proceedings against Mr Slater in 2018.

11 The admissibility of the emails was the subject of a specific ruling by Palmer J on the first day of the trial in response to Mr Stringer's objection to the documents being included in the defendant's bundle of documents. 11 The objection was that some of the emails had not been properly redacted by Mr Belt or Mr Belt's counsel in the Craig v Slater proceeding. The Judge declined to exclude the emails without hearing from Mr Belt or his counsel. He directed that Mr Stringer would need to have Mr Belt swear an affidavit if he wished to pursue the matter. 12 This was never done.

12 The evidence is not fresh and there was no adequate explanation for it not being adduced at trial. The evidence is not cogent. For the most part it comprises Mr Belt's commentary on the judgment and makes assertions regarding Mr Craig. It contains little by way of admissible evidence and none that could justify allowing the affidavit to be adduced for the purposes of the appeal. We decline to receive it.

Background

Mr Stringer's conduct

13 Ms MacGregor resigned as the Conservative Party's press secretary two days before the General Election of September 2014. On the same day, she filed a claim with the Human Rights Commission, complaining that Mr Craig had sexually harassed her. 13 However, Ms MacGregor kept this to herself. The reason for her resignation was the subject of intense speculation in political circles and the media.

14 In January 2015 Ms MacGregor told Mr Craig about the sexual harassment claim. In addition, there was an outstanding issue regarding the amount that...