Summary
Craig v Slater
06 June 2019

Costs judgment in defamation proceeding Craig v Slater

Costs allocated to Slater as the successful party. Craig succeeded only in proving that he did not place his press secretary, Rachel MacGregor, under financial pressure to sleep with him and that he did not sexually harass another woman. Craig failed on all other significant pleaded causes of action, including particularly the principal allegation that he had sexually harassed Ms MacGregor. Costs award to Slater reduced by 10 percent to reflect Craig's limited success.

The Court held that costs should lie where they fall in respect of the counterclaim. Craig protected by response to an attack privilege, but Slater succeeded in proving the statements about his journalistic integrity were not true. Because it is difficult to identify precisely those costs incurred by Slater in respect of the counterclaim, a discount of 10 percent applied to reflect those costs lying where they fall.

Mr Slater's claim for indemnity costs failed because the Court accepted that Mr Craig did not know he had sexually harassed Ms MacGregor when bringing the proceeding, due largely to his oblivious and self-involved perception of their professional and personal relationship. He therefore did not bring the proceeding vexatiously or frivolously.

Final disposition of costs awards as follows: first, Slater shall not receive costs for any interlocutory steps taken in respect of the counterclaim; costs in respect of pretrial preparation and trial appearances reduced by 10 percent to reflect the aspect of those costs expended in relation to the counterclaim lying where they fall; 90 percent of the remaining sum payable by Mr Craig to reflect the limited success he had on the substantive claim.

From the Disposition

[85] The saga that is this case needs to be brought to an end. I do not think it is desirable to add more delay by requesting further information from Mr Slater. The principles I have discussed should be applied as well as they can be to the material provided. On that basis, I direct that the award of costs to Mr Slater is to be calculated as follows:

(a) Mr Slater shall not receive costs for any interlocutory step taken in pursuing the counterclaim against Mr Craig.

(b) Because of the difficulty in identifying from the information provided how much of the preparatory work for which costs are sought under item 33 in Schedule 3 related to the counterclaim, I direct that the costs claimed under item 33 shall be discounted by 10 per cent. That is the amount which I consider reasonably accords with the trial time spent addressing the counterclaim.

(c) Costs may be claimed under item 35 for the appearance of second counsel at the hearing.

(d) Because of the difficulty in identifying with precision how much of the trial time was occupied by the counterclaim, I direct that the costs of both counsel under items 34 and 35 in Schedule 3 shall be discounted by 10 per cent. That is consistent with the approach I have taken to the cost of preparation under subparagraph (b).

(e) A further deduction is to be made to reflect the limited success that Mr Craig enjoyed on the substantive claim. On that account, the amount of costs payable by Mr Craig shall be reduced to 90 per cent of all costs and disbursements to be paid in accordance with the calculations under the Rules and subparagraphs (a) to (d) of this paragraph.

[86] Any party shall have leave to apply for further directions if they are considered necessary to explain the approach to the calculations, but not otherwise.

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