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Settling down

By Steven | November 16, 2012

So Judith Collins has sensibly settled her lawsuit against Trevor Mallard and Andrew Little.  Here’s the agreed statement:

The parties agree the leak of the email Ms Boag sent to the Minister and forwarded on her instructions, as the responsible minister, to the chairman and chief executive of ACC, raised an issue of serious public concern and that Messrs Mallard and Little were entitled to question who was responsible for that leak.

The parties continue to differ over whether the remarks made by Messrs Mallard and Little respectively on Radio New Zealand implied the minister falsely assured the House that neither she nor her office was responsible for the leak.

Messrs Mallard and Little have confirmed to Ms Collins that was not their intention and wish to make that clear publicly and in the event such meaning was taken, they regret it.

The parties will make no further comment on the proceeding.

I read this as a significant backdown by Judith Collins. There is really no apology here. There is apparently no costs agreement. There is only the dribbliest form of sorrow – “we regret it if someone misread what we were saying”.

We should recall that Mallard said a reliable source indicated that a leaked email from Michelle Boag came “from Collins or Collins’ office”. (He later expanded it to include the Associate Minister’s office). Little said that Collins was “the obvious suspect” and was “right in the thick of it”. (I’d better add that I have no idea one way or another about this).

Now, I think the best reading of these exchanges (in context) is that there was good reason to suspect that Collins had been involved with leaking the email (and therefore lied to the House when she denied it). That’s still defamatory, though it’s not as defamatory as outright alleging that she leaked it. It’s also much easier to prove. They only needed to bring evidence showing that there was good reason to think that Collins or her office were responsible for the leak, and not prove that she actually leaked it.

But the Labour MPs had a powerful potential defence. It was strongly arguable that they were engaging in genuine political debate and therefore were speaking on an occasion of qualified privilege. There would have been an issue about whether they were acting responsibly in the way they put forward their allegations, but given the latitude that the courts tend to give to robust political speech I am inclined to think they would have surmounted that hurdle. Nor could it be shown, I think, that they acted with statutory malice – that is, that they were predominantly motivated by ill-will towards Collins or otherwise took improper advantage of the occasion of publication.

Note that this defence does not turn on whether or not it was true that Collins or her office leaked the email. In fact, Mallard and Little didn’t even plead truth or honest opinion as defences. (The fact that they didn’t plead honest opinion was interesting. I would have thought it was open to them. But they would have had to have proved that the facts they based their opinions on were true.)

If my qualified privilege analysis is right, Collins didn’t have a powerful case. I think it was an ill-judged action. And it would have continued to be very expensive to all three, so it was smart to settle. I suppose it’s a win of sorts for her that the statement comes close to having Mallard and Little retract their allegation that Collins or her office was responsible for the leak. It strikes me as a good compromise, even if it’s somewhat disingenuous.

Topics: Defamation | No Comments »


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