The long-running, expensive legal spat between the head of the Taxpayers’ Union lobby group and the former leader of the Conservative Party arrived at NZ’s highest court this week. Asher Emanuel went along to watch
“This must be an ethically difficult case for you,” Jordan Williams, Taxpayers’ Union boss, taunted when I asked him for comment during the lunchtime adjournment of his of his Supreme Court confrontation with Colin Craig, former leader of the Conservative Party. At mention of The Spinoff, Williams had issued a series of loud noises that I understood to be laughter.
“Who do you despise more?” he asked. “The neoliberal prick or the conservative monster!”
He scuttled away to find a sandwich, trailed by a crowd of young supporters in business attire. Though I had hoped to interview him and not the other way around, for many watching events play out in our highest court, it was probably a fair question.
Earlier this year an appeal court said that these long-running defamation proceedings had “exposed serious flaws in the characters of both protagonists”, which is also a fair description of the events which led to this week’s Supreme Court hearing.
In the weeks before the 2014 general election, polls showed the Conservative Party to be a genuine prospect to enter parliament. Two days before the vote, Colin Craig’s press secretary, Rachel MacGregor, resigned unexpectedly. The party ended up falling a percentage point short of the threshold required to make it.
After the election, MacGregor told Williams, an acquaintance of hers, that Craig had sexually harassed her. She later filed a claim of sexual harassment with the Human Rights Tribunal, which was settled in mediation with Craig in early 2015. The settlement included a confidentiality agreement and she considered the matter at an end.
Despite promising MacGregor and her lawyer he would keep her story and documents she’d entrusted to him confidential, Williams used the information in what a judge later described as a “campaign” to have Craig removed as leader of the party. Williams told the party board members, informed Garth McVicar of the Sensible Sentencing Trust that he should prepare to fill the party leadership, and authored posts for Whale Oil under the pen name “Concerned Conservative” alleging Craig sexually harassed MacGregor as well as publishing a poem Craig had sent her.
Craig responded by calling a press conference to announce a pamphlet he’d put together about “the dirty politics agenda and what they have been up to in recent weeks”. There had been a campaign of defamatory lies about him, he said. He’d never sexually harassed anybody, claims otherwise were false, and in the next 48 hours he would be suing Jordan Williams, Cameron Slater, and a member of the Conservative Party board member John Stringer for $300,000, $650,000 and $600,000 respectively.
At a cost of $250,000 he had the pamphlet — replete with strange capitalisation, a cartoon and an obviously fictitious interview between Colin Craig and a Mr X (actually also Colin Craig) — sent to 1.6 million homes.
Williams sued Craig, saying Craig had defamed him by calling him a liar and implying Williams was dishonest, deceitful, a serial liar, not to be trusted, and lacking in integrity. Williams won and was awarded $1.27 million, the largest defamation award ever made in New Zealand. (The trial judge did, though, find there was some evidence that Williams had been dishonest and deceitful, and could not be trusted.)
That’s the very abbreviated version, shorn of contents of the letters, the things Craig said and did, the actual poems, et cetera. The court cases have not been so summary.
The trial in the High Court lasted four weeks and involved over 2,000 pages of documentary evidence. (“Much of the evidence was of questionable relevance to the real issues”, an appeal court later said.) Witnesses traded insults. Williams calling Craig a prick. One blogger described Williams as a “political sadist” and a “hyena”.
Immediately after the jury’s verdict, Craig asked the trial court to either disregard the jury and give judgment in his favour, or send the case back for retrial. The judge declined to rule in Craig’s favour, but decided the award of $1.27 million was so far beyond justification that there had been a miscarriage of justice requiring a retrial. It seemed the trial would have to be done all over again.
Both parties appealed and after a two-day hearing in the Court of Appeal the result changed, just a bit. Yes, the damages were excessive, the appeal court said. But there was no need for another whole trial. It would be enough to ask a new jury to consider afresh only the question of damages.
This time, though, the jury should be instructed not to award Williams any more than $260,000.
The appeal court worried that the size of the original award was more about punishing Craig than vindicating Williams’ reputation. Indeed, Craig’s lawyer had said, pretty candidly, that the he thought the jury “hated” Craig.
And Williams’ reputation was not worth $1.27 million.
“He is not a public figure,” the court said. “He is the leader of a little-known political group.” Williams’ own behaviour had also showed him in a poor light.
“The trial process revealed that Mr Williams had accused Mr Craig of sexual harassment against Ms MacGregor but himself harboured offensive attitudes towards women,” the court said, referring to Facebook messages between Williams and Cameron Slater published by the hacker Rawshark and put in evidence by Craig.
“A damages award should restore Mr Williams’ reputation to the status it ought it to have enjoyed if this element of his character was known publicly. The law must be concerned with the reputation he deserved and compensate accordingly.”
Dissatisfied, both men appealed once more, and so on Tuesday morning Craig sat alone on the far right of the Supreme Court’s public gallery, dreadfully still, as the five lawyers did battle in the highest court.
“We would be delighted if there’s not too much colour,” the chief justice told Colin Craig’s lawyer at the start of the hearing.
But the five supreme court justices — as with all those who’d gone before in the courts below — were not spared the colour.
Craig’s lawyer told the court he wanted to begin with some of the “key stages in the factual matrix”. That is, he wanted to talk about the facts again.
“I would have thought the factual background was something we are sufficiently familiar with from the submissions”, the Chief Justice had warned.
But Craig’s lawyer persisted. He was particularly concerned with facts which made Williams look bad, and there was enough material in this category to last the first half of the day.
“None of this is in issue,” said one judge. “I’m still not entirely sure what the relevance of this is,” said another. “I do wonder if all the detail is really critical…”
After a time Craig’s lawyer offered to abandon the facts, but it was too late to turn back.
“Having embarked on this, let’s follow it through,” said the chief justice.
“And then get on to the legal issues on which leave has been given.”
The precise legal issues involved are particularly technical and arcane — for instance, which elements of the defence of qualified privilege are for a judge to decide, and which are for a jury.
But the essence of each party’s case is simple enough. Williams wants the jury’s verdict to stand, including the enormous damages award. He disagrees with the trial judge’s decision to order a retrial of the whole case, and the appeal court decision that any damages should be far more modest.
Craig, presumably, just wants it all to go away. The jury shouldn’t have taken away his defence. He had been defending his political standing, his lawyer explained. He had retaliated to “protect his reputation as a man, a husband and a father.” Williams, by contrast, was overly hasty, exaggerated his claims, breached various assurances of confidentiality, was uninterested in evidence which contradicted his views, et cetera.
Craig sat eyes closed, hands clasped before him as if in prayer, the very picture of man who considers himself persecuted. At the other end of the room, Williams emoted vigorously, nodding and shaking his head, scribbling away on yellow legal pad, periodically muttering.
Craig’s lawyer argued the trial judge misdirected the jury on the defence of qualified privilege, the same defence that Andrew Little relied on when sued for remarks about Earl Hagaman in 2016. In that case, Little had privilege because he was leader of the opposition speaking on a point of public importance.
In this case, the privilege Craig relied on is the right to respond to an attack on one’s reputation. Williams attacked Craig, so Craig was entitled to respond. But there are limits. For instance, Craig would lose the defence if he was mainly motivated by “ill will”, including if he didn’t believe what he was saying was true.
Craig’s lawyer said he honestly believed that he had not sexually harassed MacGregor, and that the relationship was close and to some extent reciprocated. The judge’s instructions to the jury made it seem like it was easy for Craig to lose his defence, the lawyer argued.
Williams’ lawyer said Craig knew he sexually harassed MacGregor, he knew his remarks about Williams were false, and the defence was not available to him, as the jury decided.
After an excruciating rehearsal of some of the text messages, during which Craig’s eyes darted about, fixing upon nothing, Williams’ lawyer moved on to damages. He complained that the $260,000 proposed by the appeal court was too low. Once you take into account costs in the high court, the lawyer said, “such trials could not take place, they would be totally uneconomic”.
That might not be such a bad thing. The fiction in all these cases is that victory will restore someone’s reputation, and if it doesn’t, an enormous sum of money will make up for it. Does anyone believe Williams suffered $1.27 million worth of damage at the hands of Craig? In fact, does anyone care about the outcome?
What is this case then, other than a prodigious waste of resources, public and private? Williams would not tell The Spinoff how much he’d spent on the litigation — he says he wanted to but his lawyers vetoed it. Nevertheless, he described the bill as “fucking heaps”.
No doubt that’s true. At the conclusion of the parallel defamation case between Cameron Slater and Colin Craig, which addressed substantially the same facts and ran for a similarly harrowing four weeks, Slater’s lawyer reportedly sought costs of $450,000.
If Craig and Williams continue to prosecute their increasingly ancient grievances until one of them runs out of money — and one of them might, given the possibility of a retrial — you could be forgiven for thinking it was entirely their business how they choose to spend their time.
But their dispute has cost others, too. MacGregor told the jury during the High Court trial that she felt she was “on trial by proxy”. Indeed, Williams’ lawyer told the Supreme Court that the trial had mainly been a contest of credibility between Craig and MacGregor.
“I didn’t want to be part of it, I just wanted to stay right out of it but — hello — here I am,” MacGregor said in evidence.
“They brought me into this, their defamation thing, two men angry about something.”
Wasn’t MacGregor entitled to have her claim against Craig resolved in private? That might have been possible had Williams kept her confidences, or stopped after telling the Conservative Party Board, or chosen not to sue Craig, bringing about a lengthy and well-publicised trial. (To be fair, Craig may well have sued Williams if he hadn’t done so first.)
MacGregor voluntarily gave evidence for Williams in this case, but in the claim between Slater and Craig, she was required to attend under subpoena. Craig, who was self-represented at the time, was permitted to cross-examine her. All this has set a disturbing example for anyone who has been victimised by a public figure and is contemplating their options.
“I can’t wait for this to be over,” MacGregor told the jury last year.
“I wish these dudes would stop suing each other so this could be over for me.”
Possibly she was not alone in wishing it over. On Wednesday morning when Williams’ lawyer’s presentation stretched long over time and his advocacy became ever more impassioned, patience ran out.
“Mr Ramanos!” the chief justice interrupted. “Conclude.”
The outcome will be awaited. The jury’s verdict could be reinstated. A retrial could be ordered, either in whole or just on damages, which retrial could in turn give rise to further appeals, and so on and so on. Unfortunately, the courts cannot substitute their own view on damages unless the parties consent. And agreement to let the court assess damages has not been reached, despite some pleading from the appeals court.
“I just want to say what a pleasure it has been to present to your honours,” Williams’ lawyer said to the court before retreating to his seat.
The chief justice grinned.
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