Williams v Craig

• Jurisdiction: New Zealand
• Judge: Katz J
• Judgment Date: 12 April 2017
• Neutral Citation: [2017] NZHC 724
• Docket Number: CIV-2015-404-1845
• Court: High Court
• Date: 12 April 2017

Between

Jordan Henry Williams

Plaintiff

and

Colin Graeme Craig

Defendant

[2017] NZHC 724

CIV-2015-404-1845

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application to set aside a jury verdict which found that the defendant had defamed the plaintiff — both parties were involved in the political arena and the statements were made in the run up to the 2014 General Election — the plaintiff had approached several people and created a blog post that alleged that the defendant, the leader of a political party, had sexually harassed his former press secretary — the defendant made remarks about the plaintiff at a press conference (the Remarks) and then later in a leaflet that was distributed nationwide (the Leaflet) that were found to be defamatory — the jury's award of $1.27m in damages for compensatory and punitive damages was 50% higher than the previous highest award — consideration of “defence to attack” form of qualified privilege — whether the jury's damages award was excessive and involved double counting by failing to address whether the Leaflet had caused additional damage to that caused by the Remarks — whether the jury had failed to take into account the broader context of freedom of political speech when considering the “defence to an attack” form of qualified privilege — whether there was any evidence to support the jury's finding that the defendant had been motivated predominantly by ill will — whether the direction that the issue of whether the statements were relevant to the attack was a matter for the jury was a material mis-direction on the issue of qualified privilege.

The issues were: whether the jury's damages award was excessive and involved double counting; whether the jury had failed to take into account the broader context of freedom of political speech when considering the defence to an attack” form of qualified privilege; whether there was any evidence to support the jury's finding that C had been motivated predominantly by ill will; and whether the direction that the issue of whether the statements were relevant to the attack was a matter for the jury was a material mis-direction on the issue of qualified privilege.

Held: The fact that the jury awarded the full amount of damages sought by W strongly supported the inference that the jury must have concluded that W had been entirely successful in his claim, or almost entirely successful. However, W was not entirely successful. Several of the defamatory imputations he pleaded were proved to be true at trial. The necessary inference was that the jury had ignored the direction not to take into account any meanings that C had proved were true. If the jury had correctly followed that direction, an award of the maximum amount of damages sought could not have been justified.

When assessing damages the jury was not entitled to disregard the broader context, namely that C had been responding to an attack on his own character. The “defence to an attack” form of qualified privilege was a robust one that sometimes entitled the use of strong language or a forceful reply in responding to an attack ( Adam v Ward; Penton v Calwell). In this case, C's actions had to be viewed in the broader context that his own character and reputation were under sustained attack from W. The law therefore conferred a privilege on him, for important reasons of public policy

Here, the importance of the privilege was particularly significant because the category of speech involved was one that was deserving of a high level of protection in a free and democratic society, namely political speech ( Campbell v MGN Ltd). C, a politician, was responding to an attack on his reputation by W, who was also politically active (through the Taxpayers' Union) and whose aim was to remove C from his position as leader of the Conservative Party, albeit because he believed that he was not a fit person for the role.

Given that broader context, it was difficult to see how C's actions could objectively justify an award of damages that was significantly higher than any other previous damages award for defamation.

In awarding damages for the Leaflet, the jury had to avoid compensating twice for the same thing. The Remarks and Leaflet had made substantially the same allegations about W. By the time the Leaflet was published, W's reputation had already damaged by the nationwide media coverage given to the Remarks (resulting in the jury's compensatory damages award of $400,000). It was extremely difficult to see how additional damage to W's reputation in the sum of $650,000 could be caused by what was largely a further publication of the same defamatory imputations to a similar nationwide audience, unless there was a significant element of double counting. It must necessarily be inferred that the jury had failed to adequately turn their minds to the issue of “double counting” the damage to the plaintiff's reputation caused by the Remarks and the Leaflet.

Like compensatory damages, punitive damages could not double up. The grounds for claiming punitive damages were the same as those for aggravated (compensatory) damages, with the exception that it was alleged C had acted maliciously in distributing the Leaflet without first informing W. The prospect of some element of “double counting” was raised by the fact that almost identical grounds had been relied on.

The jury was entitled to conclude that some “added punishment” was necessary in all the circumstances. However, the jury needed to take into account that most of the specific matters that supported a punitive damages award had already been taken into account in assessing aggravated damages. Given that the maximum quantum of punitive damages was awarded, it was a reasonable inference that they had not done so.

When assessing the reasonableness of the punitive damages, the jury should again have taken the broader context into account, including that C had been responding to an attack and a number of the defamatory statements were proven to be true at trial. These matters were relevant to the degree of “punishment” that was warranted in the circumstances.

It was only if there was no evidence, or insufficient evidence, to support the jury's verdicts that the Court could take the somewhat drastic step of entering judgment for C. Where, as here, the jury's finding was necessarily a matter of inference from proven facts, the Court's role was to assess the evidence and determine whether the primary facts were capable of supporting the necessary inference and whether that inference was properly drawn. In doing so, the Court had to ensure that the finding was not speculation or conjecture.

C's qualified privilege could only be lost if he had predominantly been motivated by ill will (that is, a desire to injure W) or took improper advantage of the occasion (that is, seeking some private advantage unconnected with the duty or the interest which constituted the reason for the privilege). There was sufficient evidence to support the jury's finding that C had lost his qualified privilege, Ill will or improper advantage could still be established if the defendant was responding to an attack that they knew was true. There was sufficient evidence on which the jury could find that ill will had been established. It followed that there was no basis to enter judgment for C.

It was not strictly necessary to consider the material mis-directions alternative basis for seeking a retrial in any detail. If there were material mis-directions in the summing up, that could not justify entering judgment in favour of C. Rather, the appropriate course would be to order a retrial.

However, by way of observation, it was somewhat unfortunate that issues relating to mis-direction were not raised when counsel were asked they had any issues immediately following the summing up so that these could be addressed with the jury. Nonetheless, the failure to raise them during the course of the trial did not preclude them from now being raised.

There was at least one misdirection in the summing up which related to whether the statements made by C in the Remarks and Leaflet were relevant to W's attack on him. This was ultimately a question of law (for the Court), and not, as directed, one of fact (for the jury). A response had to be relevant to an attack in order for an occasion of qualified privilege to arise. It was not necessary to reach a concluded view on whether the misdirection was material. It should simply be noted for the record that this particular direction was incorrect.

C was entitled to a retrial on the basis that the jury's damages award was excessive.

The damages award was well outside the range that could reasonably have been justified in all the circumstances. The consequence was that a miscarriage of justice had occurred. The jury's verdicts were set aside and a retrial ordered unless both parties were willing to consent to the Court substituting a new damages award in place of the jury's award.

Counsel::

P A McKnight and A J Romanos for plaintiff

S J Mills QC and J W J Graham for first defendant

This judgment was delivered by me on 12 April 2017 at 2:00pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

JUDGMENT OF Katz J

Table of Contents

Introduction	[1]
Background	[4]
The breakdown in the relationship between Mr Craig and his press secretary	[4]
Mr Williams' “attack” on Mr Craig's character and reputation	[8]
Mr Craig's response – the Remarks and the Leaflet	[20]
The qualified privilege ruling	[22]
In what circumstances can the Court set aside the jury's verdicts?	[31]
Reviewing a damages award – legal principles	[34]
The purpose of damages	[40]
Previous defamation damages awards	[42]
Did the jury fail to take into account that several of the pleaded defamatory statements were true or substantially true?	[49]

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