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MacGregor v Craig - Decision of Human Rights Review Tribunal

MacGregor v Craig

Decision of Human Rights Review Tribunal

Issued 2 March 2016

Published 5pm 3 October 2016

The following is a summary of the key events leading up to the publication of the Human Rights Review Tribunal’s Decision. This decision was issued seven months ago and has been, until now, the subject of extensive suppression orders.

The substantive Decision of the Tribunal was that:

• Mr Craig had comprehensively, deliberately and systematically breached the confidentiality of his settlement with Ms MacGregor

• Mr Craig had no legitimate reason for breaching the confidential settlement

• The breaches were extensive, calculated and engineered to attract maximum publicity

• The breaches caused Ms MacGregor significant humiliation, significant loss of dignity and significant injury to feelings

The Tribunal ordered Mr Craig to pay Ms MacGregor $128,780 in damages plus costs. The award of damages includes $120,000 in damages for humiliation, loss of dignity and injury to feelings. This is the largest sum awarded by the Tribunal for emotional harm.

The Tribunal also granted Ms MacGregor a restraining order against Mr Craig preventing him from making further comments.

1. Why did Ms MacGregor take a claim to the Tribunal?

On 4 May 2015 Rachel MacGregor attended a mediation with Colin Craig seeking settlement of two issues; her pay dispute with Mr Craig and her claim for sexual harassment. Under section 85 of the Human Rights Act any information disclosed or outcome reached in a mediation is confidential. Ms MacGregor attended the mediation believing that it was a private and confidential meeting and that any agreement reached would remain private and confidential.

Settlement was reached at mediation. The Mutual Resolution, signed by both Ms MacGregor and Mr Craig, included a clause that stated that neither party would make comment to the media or third parties other than a statement that the parties had met and resolved their differences.

Ms MacGregor agreed to settle her claim through the Human Rights Commission mediation process because she wanted to resolve the issues speedily and confidentially. Having reached a settlement on 4 May 2015, she believed the matter was closed.

From 8 June 2015, Mr Craig breached those confidentiality undertakings numerous times, in media interviews, media conferences, a letter and a published brochure. MacGregor brought her claim to the Tribunal seeking a declaration that Mr Craig had breached the terms of the settlement, an order restraining him from further breaches and damages for humiliation, loss of dignity and injury to feelings.

See paras 1 to 12 for the background to this Decision.

2. How did Mr Craig breach the settlement?

Mr Craig breached the confidentiality of the settlement. He confirmed that there had been a sexual harassment claim and that Ms MacGregor was the complainant. He talked about the pay dispute, including disclosing how much money was paid to Ms MacGregor. He claimed a $20,000 loan had been forgiven compassionately. He talked about the nature of the relationship with Ms MacGregor as being ‘mutual’. He claimed that both he and Ms MacGregor had behaved inappropriately.

See paras 72 to 89 for information about Mr Craig’s counter claim.

3. What did Ms MacGregor claim?

Ms MacGregor claimed that the breaches were deliberate and designed to harm her reputation. She claimed he ought not to have breached confidentiality, but more than that he had done so in such a way as to mischaracterise the settlement. She claimed as a result her reputation had been damaged and she had been seriously affected by the stress and continuing media attention generated by Mr Craig. She claimed the combination of poor health and the stigma attached to being associated with such a high profile and unflattering scandal made it difficult for her to rebuild her professional future.

She also claimed that a process designed to protect claimants in sexual harassment cases had ended up causing her further emotional harm and victimisation.

See para 141 for more information about Ms MacGregor’s claim.

4. What was Mr Craig’s response to Ms MacGregor’s claim?

Mr Craig initially argued that Ms MacGregor had been the first to breach the confidentiality undertakings. He argued she had not been truthful. He argued that Ms MacGregor induced him to enter the settlement agreement with misrepresentations about who she had shared information about her relationship with Mr Craig. He said that if he had known Mr Williams had been shown the letters he would not have signed the agreement. Initially, he also argued that Ms MacGregor worked with Jordan Williams to leak damaging information about him. He also argued that he had cancelled the settlement contract.

Mr Craig argued he was the victim of the leak of confidential information and the leak put him under enormous pressure as his political career and many friendships unravelled. See para 122 for more information about Mr Craig’s response.

5. What did the Tribunal find?

o Mr Craig breached the confidentiality obligations ‘repeatedly and intentionally’ [para 142.6]

o The breaches were ‘deliberate, systematic, egregious and repeated’ [para 112]

o Ms MacGregor suffered significant humiliation, significant loss of dignity and significant injury to feelings. The causative link between Mr Craig’s breaches and Ms MacGregor’s humiliation, loss of dignity and injury to feelings has been amply established [para 143]

6. What the Tribunal said of Ms MacGregor

o Ms MacGregor was an honest witness [para 54]

o She confided in Jordan Williams and showed him letters and cards written to her by Mr Craig at a time when she was under no obligation of confidence to Mr Craig (the mediation had not yet been agreed to and had not taken place). She was entitled to speak to whoever she wished prior to the confidentiality agreement being signed [para 85]

o Ms MacGregor never provided any assurances to Mr Craig that certain information had not been shared. In fact, she had never made any secret of the fact that a small group of confidantes had seen, prior to the filing of the sexual harassment claim, some of the correspondence from Mr Craig [para 61]

o Ms MacGregor did not give Jordan Williams permission to leak information about Mr Craig and she did not know he intended to leak information. She played no part in the leaking of the information to either the Conservative Party or the media.

o The Tribunal said ‘Mr Craig’s entire counterclaim fails for the simple reason it has no factual foundation’ [para 80]

o No false representations were made by Ms MacGregor [para 86]

o ‘It is difficult to see any basis for criticising Ms MacGregor’s conduct. With the exception of the single tweet of 22 June 2015 (of which Mr Craig made nothing) she has at all time adhered to the settlement and the confidentiality obligation.’ [para 119]

o She has experienced, as a direct result of Mr Craig’s breaches, such feelings as anxiety, anger, despair and alarm. She has been marginalised and her right to the protection of the Human Rights Act has been deliberately overridden by Mr Craig [para 142.7]

7. What the Tribunal said of Mr Craig’s breaches

o ‘Mr Craig is wealthy, well-connected and well-advised. At all times he has been in the more powerful position than Ms MacGregor. He has used his power and wealth to conduct a calculated campaign of breaches for the sole purpose of bolstering, or attempting to bolster, his own reputation. He has disregarded his obligations under the Human Rights Act and the settlement agreement’ [para 142.4]

o ‘Any steps he did take were motivated by self-interest’ [para 124]

o ‘The breaches occurred in the most public and damaging of circumstances’ [para 125]

o ‘Mr Craig was controlling the narrative. He was exercising power and control over what was in the media by carefully releasing what he thought would save himself, what he thought would save his position and save his reputation. The released information was selected …to paint himself as a person who had been falsely accused by a woman who was clearly incapable of managing her money and a fair inference was that what she was seeking through the sexual harassment complaint was money’[para 126]

o ‘His actions were calculated and the likely impact on Ms MacGregor was obvious’ [para 126]

o ‘Mr Craig has had legal advice throughout. The most significant breaches were prescripted and, as submitted by Ms MacGregor, engineered to attract maximum publicity. He did not stumble into the breaches, He sought, fed and received media attention’ [para 127]

o “His brief of evidence, as filed and read into evidence, was correctly described by Ms MacGregor, as nothing short of a vilification of her’ [para 128]

Key background:

• Rachel MacGregor worked for Colin Craig from August 2011 to 18 September 2014

• Ms MacGregor registered her claim of sexual harassment with the Human Rights Commission on 18 September 2014 • Prior to filing her claim in detail, she confided in Jordan Williams and showed him letters and cards Mr Craig had written to her. She trusted Mr Williams to keep the information confidential.

• Ms MacGregor and Mr Craig attended a confidential mediation, facilitated by the Human Rights Commission, on 4 May 2015

o A Mutual Resolution Agreement was signed on 4 May 2015

o Documents recording the financial settlement (which was a part of the mediated settlement) were signed 7 May 2015

o These two parts form the confidential settlement

• Mr Craig participated in the ‘Sauna Interview’ with TV3 on 8 June 2015

• Mr Craig held media conference with his wife, Helen, on 22 June 2015

• Mr Craig released a booklet, distributed to households nationwide, on 29 July 2015

• Ms MacGregor filed a claim with the Human Rights Tribunal, seeking enforcement of the confidentiality undertakings agreed to under the 4 May Agreement and seeking damages for the harm caused by Mr Craig’s breaches of confidentiality.

• The Tribunal held a 5 day hearing from 7 December 2015. At this time, all matters relating to the hearing including the names of the parties and the fact of the hearing were subject to interim non-publication orders

• The Tribunal issued its Decision on 2 March 2016 (see details below). The Tribunal awarded MacGregor $128,780 in damages and compensation.

• Mr Craig sought to prevent publication of the Decision.

• A hearing was held on 16 May 2016 before the Tribunal at which Ms MacGregor sought to have the Decision published before the events central to her sexual harassment claim were made public by way of evidence presented by Jordan Williams and Colin Craig in the defamation hearing. She claimed continuing suppression of the Decision would be unfair to her, given Mr Craig was planning of presenting extensive evidence about his relationship with MacGregor and her claim of sexual harassment.

• The Tribunal agreed and issued a Decision on 21 June 2016 lifting all non-publication orders on the basis that the upcoming defamation trial would have at its centre the events which were private and confidential to Ms MacGregor. The Tribunal concluded that, as a non-party to the defamation proceedings, it would be unfair on Ms MacGregor to not have the Tribunal’s Decision on record prior to either Mr Williams or Mr Craig telling the Court their version of events.

• Craig appealed against this Rescission Decision to the High Court on 21 July 2016, claiming publication of the Decision would prejudice his rights to a fair trial at the upcoming defamation trial.

• A hearing was held before Justice Cull on 27 July 2016. Justice Cull sent the matter back to the Tribunal for further consideration.

• The Tribunal held a further hearing on 30 August 2016 to hear arguments from both sides about the effect of publication on Craig’s fair trial rights.

• On 7 September 2016 the Tribunal determined that the Decision should continue to be suppressed until the second week of the Williams v Craig defamation hearing, at which time Justice Katz would be best placed to determine the need for further suppression orders.

• On 12 September 2016 Justice Katz ordered the Tribunal’s Decision continue to be suppressed until the end of the defamation trial.

• Suppression of the Tribunal’s Decision ends at 5pm 3 October 2016.

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