Outrage has followed the news that Colin Craig has appealed the High Court decision of Craig v McGregor, a ruling that found the former Conservative Party leader sexually harassed his former press secretary Rachel MacGregor.
The case is but one in a series of defamation cases coming out of the collapse of the Conservative Party in 2014, cases which have kept Mr Craig in the headlines over the past few years. This appeal means McGregor’s “strong wish that Justice Hinton’s ruling is not appealed by Craig and that he finally leaves me alone to get on with my life” has not been granted. Social media has lit up with questions about why this is being allowed to continue, including from Stuff journalist Paula Penfold who has stated: “This is an abusive power play and should not be allowed”.
So, can someone not put an end to all this? The good news is that our system has a number of protections built in to stop people using it to harm others. One of these is our graduated system of civil restraint orders. The court has the power to make orders to prevent someone from commencing or continuing litigation in a particular case or in a related case. It can also, for people behaving really badly, make a general order limiting their right to commence or continue litigation in any cases at all. This system is only three years old. It replaced the old system where people had to meet a very high test before they could be declared “vexatious” and stopped from commencing litigation.
The court also has the power to order someone to pay “security for costs”. This means the appellant (Craig) has to pay money into court to guarantee that he can pay back McGregor’s costs in defending the appeal, if he loses. That can sometimes bring a case to an end, if the appellant cannot make the payment. The court has other powers to stop cases getting off the ground in the first place, including if they are an “abuse of process”. Justice Palmer, stating “enough is enough” made such a ruling in June 2019, stopping Craig from suing John Stringer in defamation over the same sexual harassment allegations.
Those are the protections, but balanced against them is the need for checks and balances to make sure decisions are correct. A right to appeal is one of these important checks on the court’s power. Importantly for this case, an appeal to the Court of Appeal is not a re-trial. The Court of Appeal will only look at whether the High Court judge made a mistake or not, based only on legal arguments. McGregor does not have to attend court to give evidence. She does not even need to set foot in the Court of Appeal if her lawyers are going to continue to represent her (there is a fundraising campaign to pay for this).
Of course, this will be of limited comfort to McGregor who was hoping the High Court case was the final outcome. The prospect of the saga continuing is particularly painful when one considers that the High Court case took a long time. Two years elapsed between McGregor being served with the proceedings and the judgment being delivered, and there was a whole year between McGregor going to court to give evidence and then reviewing the judgment. That is a problem in itself. However, it is likely to be a bridge too far to say that Craig should have no appeal right at all to check if that long-considered judgment is legally correct.
It also needs to be remembered that while Craig is a key protagonist in all this, he is not the only one. Jordan Williams and John Stringer have brought defamation proceedings in which Craig has been and continues to be the defendant. In the case that Craig is now appealing, he was the original claimant but McGregor also sued him in response (made a counterclaim). Stopping someone defending a case is a much more difficult matter than stopping someone bringing or continuing cases.
We will, however, see moves to bring this litigation to an end where there are properly balanced reasons to do so. Justice Palmer already did this in one tentacle of this legal omnishambles, recording that Craig has had “plenty of access to justice on this subject” and it would be oppressive to McGregor to be called to give evidence a fourth time. It is to be hoped that a definitive ruling by the Court of Appeal may do likewise for others.