Let’s hope the unusual hoteliers the Hagamans don’t continue their legal pursuit of Labour Party leader Andrew Little.
Their first round ended in failure in the High Court at Wellington. Little, who questioned a donation they made to the National Party and a subsequent deal with the government related to a hotel in Niue, had looked certain to be liable for a substantial damages award.
Before the hearing he’d apologised, through clenched-teeth, and had offered Earl and Lani Hagaman a cool $100,000 towards their costs. You don’t do that unless you want something to go away.
The case went ahead, with the Hagamans determined to make him pay for the impact his comments had on their reputations. Their damages claim hit $2.3 million – an enormous sum in New Zealand defamation payouts, which typically fall well under the million dollar mark for the worst breaches, once a judge has tempered wild jury calculations.
Little has escaped the unpredictabilities of the jury system. (How the Hagamans might long now for a judge sitting alone). He has saved himself that $100,000. His own legal costs will still be nudging six figures but he might think whatever barrister John Tizard and the solicitors charge him will be a bargain.
The case and the decisions are complex. In four causes of action the jury couldn’t agree on the meaning that the Hagamans had placed on Little’s words. On one cause of action they found he had not defamed Lani Hagaman. On another they agreed the meaning could have defamed Earl Hagaman but could not agree if Little had the legitimate defence of ‘qualified privilege’.
Importantly, the result is a win for robust political speech. Little did question the Hagamans’ donation to National and the later hotel deal. But his target in questioning that was less the Hagamans and more the National Party.
He is Leader of the Opposition. He smelled a rat and said so. It turned out the rat was in Little’s imagination – the Auditor General found no link between the Hagaman deal and the donation.
It was right, then, for Little to remove the Hagamans from his criticism of National. He took too long to do so, perhaps under legal advice once threats of defamation action had been made and filed.
Once he did so, and offered a contribution towards costs (and let’s remember those costs were entirely at the Hagamans’ instigation) the matter should have ended. Once he upped the amount to $100,000 there should have been no question.
Lani Hagaman made it clear the case went ahead because Little’s regret and offer of money were too little, too late. She wanted her ill husband’s reputation restored by the court before he died.
The problem here is that Earl Hagaman’s reputation, and hers, had already been restored in most of the public’s mind. Everyone knew Little had wrongly put 2+2 together and got 5. He’d conceded that. He had looked impulsive and a little desperate. His reputation, then, took a hit.
The court heard the Hagamans’ legal team had provided Little with a draft statement of apology. But in the way of these things you could be certain it would have over-reached, pushing for an acknowledgment that a politician could not afford to make.
The $2 million claim was also an over-reach. Juries can be daft, particularly when given the opportunity to punish a politician or the media in a defamation case. But not that daft.
Last week’s High Court hearing had been seen as a gift for National. Not only had the case and the days in court distracted and discombobulated Little, but an award against him for six figures would have carried an implication of some heinous wrong.
In private, and on social media, National’s acolytes tried to stoke the implausible possibility that a heavy loss for Little would prompt the Labour Party to ditch his damaged brand and elevate Jacinda Ardern to the top job. The glee in anticipation was wrong-headed.
It is important for politicians to be able to speak out strongly against those in power. They need to get it right, of course, and when they err they need to put that right. But a culture of suing politicians for unseemly sums of money in a general election year is something New Zealand would do well to discourage.
The Hagamans may well be bloody-minded enough to take the rump of the jury’s decision against Little further – to make him pay. But that has reputational risks, and not for the Labour leader.
