[Please refer to the full judgment (PDF)]

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2015-404-1845
[2017] NZHC 724

BETWEEN
JORDAN HENRY WILLIAMS
Plaintiff
AND
COLIN GRAEME CRAIG
Defendant

Hearing:
5 December 2016 (final submission received 17 February 2017)

[…]

12 April 2017

JUDGMENT OF KATZ J

[…]

Introduction

[1] Following an almost four-week trial, a jury found that Colin Craig, the founder and former leader of the Conservative Party, had defamed Jordan Williams, the founder and executive director of The New Zealand Taxpayers’ Union. The defamatory statements were made in the course of remarks that Mr Craig made at a press conference on 29 July 2015 (“Remarks”), and in a leaflet that was subsequently delivered nationwide (“Leaflet”). The jury awarded Mr Williams a total of $1.27m in damages, the maximum amount that Mr Williams had sought. This is the highest sum of damages ever awarded for defamation in New Zealand, by a significant margin.

[2] Immediately following delivery of the jury’s verdicts Mr Craig’s counsel, Mr Mills QC, requested that I defer entering judgment. He advised that Mr Craig intended to apply to set the jury’s verdicts aside. I deferred entering judgment accordingly.

[3] Mr Craig’s application to set the verdicts aside is now before me for determination. Mr Craig argues that the jury could not have properly reached its verdicts. He says that, to avoid a miscarriage of justice, the jury’s verdicts must be set aside and either judgment entered in his favour or a retrial ordered. The three principal arguments advanced on behalf of Mr Craig are that:

(a) The jury’s damages award is excessive and beyond the reasonable bounds of any damages that could have properly been awarded in the circumstances.

(b) There was no evidence, or no sufficient evidence, to support the jury’s finding that Mr Craig was motivated predominantly by ill will towards Mr Williams or otherwise took improper advantage of the occasion. As a result, his defence of qualified privilege should have succeeded.

(c) There were material misdirections in the summing up on the issue of qualified privilege. As a result, the jury’s conclusion that Mr Craig had lost his qualified privilege is unsafe.

[…]

Summary and conclusion

[104] Following an almost four-week trial, a jury found that Mr Craig had defamed Mr Williams in the course of remarks that Mr Craig made at a press conference on 29 July 2015 and in a leaflet that was subsequently delivered nationwide. It awarded Mr Williams a total of $1.27m in damages, the maximum amount that Mr Williams had sought. This is the highest sum of damages ever awarded for defamation in New Zealand, by a significant margin.

[105] 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 Courts in New Zealand. Yet the damages awarded in this case are significantly higher than any previous award.

[…]

[108] Although precise details of the jury’s reasoning process are not known, it can be reasonably inferred (for the reasons more fully set out at [49] to [76] above) that:

(a) the jury failed to take into account that several of the more serious defamatory imputations were true;

(b) the jury failed to take into account the broader context in which the Remarks and Leaflet were published, including that Mr Craig was responding to an attack on his own reputation and character by Mr Williams;

(c) in assessing compensatory damages the jury likely double counted (to some extent) the damage caused to Mr Craig’s reputation by the Remarks and Leaflet;

(d) there was likely some double up between the punitive damages award and the aggravated (compensatory) damages award; and

(e) there was likely some double up between the punitive damages awarded in respect of the Remarks and the punitive damages awarded in respect of the Leaflet.

[109] Taking all of these matters into account, 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.78 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.

[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. My reasons for this conclusion are set out at [77] to [96] above. As a result, there is no basis for entering judgment in favour of Mr Craig (as opposed to ordering a retrial).

[111] It was not necessary for me to consider, in any detail, Mr Craig’s submission that there were material errors in the directions given to the jury in summing up. That is because, at most, this ground of challenge could result in a retrial being ordered. Mr Craig has already established his entitlement to a retrial, however, on the basis that the damages awarded were excessive. I did find, however, that there was at least one misdirection in the summing up. Given my other findings it was not necessary to decide whether that misdirection was material.

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.

[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.

[Full judgment (PDF)]

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