Chapman Tripp, who represented Colin Craig through the defamation lawsuits involving Jordan Williams have written on the latest Supreme Court judgment, noting that while it has tested many areas of defamation law it also missed an important opportunity.
The Chapman Tripp commentary:
The decision last week by the Supreme Court provides useful guidance on the defence of qualified privilege, and the role of Judge and jury in defamation cases.
After the 2014 election, Mr Craig stepped down as leader of the Conservative Party following the publication of allegations that he sexually harassed his former Press Secretary.
Mr Craig responded by calling a press conference and publishing nationwide a leaflet attacking the instigators – among them, Mr Williams – of what he saw as a “dirty politics” campaign against him.
Mr Williams sued Mr Craig for defamation, a claim Mr Craig denied. One of Mr Craig’s key defences was qualified privilege. He claimed that he was entitled to respond forcefully to Mr Williams’ attack on his reputation. Qualified privilege in this particular sense is a little like self-defence: if you are attacked, you can hit back within reason.
Following a four-week trial in 2016, a jury found that Mr Craig had defamed Mr Williams and awarded a record $1.27m in damages.
Since the High Court verdict the parties have appealed all the way to the Supreme Court over essentially two matters:
- whether Mr Craig’s qualified privilege defence should have succeeded, and
- whether the damages awarded by the jury were excessive.
The Supreme Court judgment
The Supreme Court found that the way the High Court Judge had explained qualified privilege to the jury was incorrect and that, as a result, there had been a miscarriage of justice because the jury had been misdirected.
This means there will need to be a new trial both on liability and damages.
The Court accepted that Mr Craig’s press conference and leaflet were protected by qualified privilege, but the story doesn’t end there.
Qualified privilege is “qualified” because you can lose the defence. However the bases on which you might lose it are not clear in the Defamation Act 1992, and have not been made clear through case law.
The Supreme Court has now shone some welcome light on this matter, clarifying that the key touchstone for losing qualified privilege is an improper purpose. So, in the context of the qualified privilege for replying to an attack, if you hit back, it must be by saying something you believe. Focussing on “ill will” or “malice” as previous cases did, obscures the real issue. It stands to reason that if you are attacked by someone, there will be a bit of ill will motivating the response.
The Court also clarified that certain matters are for a Judge alone to decide, not the jury, and issues such as responsibility or reasonable care – which are relevant to the recently established “public interest” defence – have no place in this kind of qualified privilege.
The Supreme Court has confirmed that it is important that Judges give juries sufficient information about the range of possible damages awards to avoid the situation in the Craig case where the award was excessive.
The Court of Appeal thought that the maximum possible damages award in this case should have been $260,000 – around 20% of the jury’s award of $1.27m. The minority in the Supreme Court were less troubled by that verdict.
The Court has also offered useful advice to Judges sitting in the High Court about how to frame their directions to a jury on the difficult qualified privilege defence.
Chapman Tripp comment
Qualified privilege is a complex area that is difficult for juries to decide.
Similar complexities drove the Court of Appeal to decide in Durie v Gardiner that it would be for Judges to decide the “public interest” defence, not juries. In our view, the Legislature should respond and make the defence of qualified privilege a matter for a Judge alone to decide as well.
Also, as the Supreme Court recognised, there has been a wide range of defamation damages awards over the last 20 years. Similar variations have led Courts in the UK and Australia to set out guidance on damages in defamation cases.
We think that Supreme Court may have missed a much-needed opportunity to give guidance on defamation damages in New Zealand.