Some time ago now, Colin Graeme Craig, a well-known public figure, considered that Jordan Henry Williams had said untrue things about him. Mr Craig distributed a pamphlet to 1.6 million households nationwide which was intended, he says, to set the record straight. Mr Williams alleges that it was defamatory. Mr Williams sued Mr Craig. Mr Craig advanced the defence of qualified privilege. Mr Williams contended that this defence should not apply. A jury found for Mr Williams at the conclusion of a four week trial. A divided Supreme Court has now ruled on what is regarded as the principal legal issue: whether the defence of qualified privilege had been lost, and what the trial judge said to the jury about it in her summing up before they retired to consider their verdict. The Supreme Court has ordered a retrial.

There was a four week jury trial, some of which your author attended as an observer in the public gallery. Defamation is one of the few remaining civil cases in New Zealand where a plaintiff may elect to have a trial by jury. In this case the presiding judge had to grapple with how not only how to explain the defence of qualified privilege to the panel of non-legally-trained men and women, but go on to explain a proviso—how the defence could be lost.

The jury found for Mr Williams and awarded him damages of $1.27 million. In a later judgment, the trial judge set aside the jury’s verdict finding that the damages award was excessive. She also found she had misdirected the jury in one material respect and so she ordered a new trial in respect both liability and the amount of damages (quantum).

Mr Williams appealed to the Court of Appeal which partially allowed the appeal. The Court set aside the later order made by the High Court, entered judgment in accordance with the jury’s verdict on liability and ordered a retrial on the question of damages only. Mr Craig obtained leave to appeal from this decision to the Supreme Court, New Zealand’s final appeal court.

The Supreme Court has recently delivered its (split: 3:2) decision: Craig v Williams [2019] NZSC 38. The Supreme Court set aside the decision of the Court of Appeal and directed a new trial on liability and quantum.

The defence of qualified privilege arises where a person has a legal, social or moral duty or interest to make a statement to someone with a corresponding interest or duty in hearing it. In such cases the statement-maker will have a defence even if the statement was defamatory of a person. The defence of qualified privilege may arise where the statement-maker is replying to an attack on him or her.

The defence is qualified rather than absolute because the privilege may be lost if the plaintiff proves the statement-maker took improper advantage of the occasion of publication or was predominantly motivated by ill-will.

By the time of the Supreme Court appeal hearing, there was no no dispute that Mr Craig’s statements were covered by qualified privilege. The issue was whether the jury was misdirected about how the privilege could be lost. This subject is the focus of the Supreme Court decision. The issue is a highly technical one. The gist of the majority’s reasoning was that the trial judge had misdirected the jury in her summing up with respect to the factors that had a bearing on whether the defence had been lost. These included a failure to direct the jury that it should not necessarily make an inference of improper purpose on account of of the statement including irrelevant material, and whether the statement-maker is required to act with reasonable care (he/she is not). The majority found the shortcomings to be material and therefore considered it could not be satisfied there had not been a miscarriage of justice. It ordered a retrial in accordance with s. 76 of the Senior Courts Act 2016.

The minority found, on the basis of an analysis of the evidence at trial, that Mr Craig was liable. The defence of qualified privilege could not, on the facts, apply. It made some obiter remarks about quantum, including a statement it was less troubled by the award than the trial judge and the majority of the Supreme Court.

Comment

The majority and minority judgments discuss whether trial counsel ought to have formally objected to the summing up. The minority place particular emphasis on this aspect. This feels unfair. It presupposes that as a matter of general approach a condition for any later appeal is advancing such an objection. In reality, the trial judge will either accept it and sum up again, or reject it, and do nothing further. If the verdict goes against counsel’s client, then in both cases counsel will have done no more than reserve his or her client’s rights to raise the same issue on appeal. If the verdict goes for counsel’s client, the issue becomes academic: there is no appeal by that party. Viewed this way, such an objection is no more than a reservation of rights. This may have some relevance but it seems unprincipled to regard it as determinative.

Further, in this particular case, there would have been real disutility in the judge summing up for a second time. The jury had endured a technical and complex four week trial. The trial consisted of a lot of contested factual evidence followed by technical legal arguments even experienced lawyers would find difficult to follow. They listened to counsel deliver closing addresses, then heard the judge’s summing up. It is not unreasonable to consider that by this point they had reach the limit of their tolerance. Even very senior counsel can be forgiven for thinking that any perceived shortcomings in the summing up would be better addressed in an appeal. Bear in mind that civil jury trial are extremely rare (a year may pass without one occurring). Almost no full-time civil practitioners could claim significant experience in the process. Anyone who feels differently should consider reading the relevant chapter in Daniel Kahneman’s Thinking Fast and Slow. The heading of this chapter is the Hindsight Fallacy.

Post script: the decisions in quantitative terms

The litigants have had the benefit of detailed analysis of the issues from no less than nine judges: the trial judge, three Court of Appeal judges, who were unanimous in their decision, and five Supreme Court judges who were split 3:2. The trial judge and the majority of the Supreme Court took a common approach to the need for a retrial in respect of both liability and quantum—a total of four. The members of the Court of Appeal (three judges) , and the minority of the Supreme Court (two judges) would not have disturbed the jury’s verdict on liability. For interest’s sake I comment that in purely numerical terms, on the subject of liability, there were five judges who were content with the jury’s finding of liability against Mr Craig, and four who were not. If it were a football match, Mr Williams would have won this aspect of the case. As it is, there will be a rematch.

Post post script for judicature nerds

Attentive readers will have picked up that the majority included Elias CJ, who retired mandatorily in March 2019 between the time of the hearing and date of delivery of the decision. This is covered by s. 177 of the Senior Courts Act 2016 which provides that a judge who has retired may continue in office for the purpose of determining or giving judgment in a proceeding.