Erin Leigh has sent me some questions and answers about her defamation court case. She’s chosen the blog format, as that way her views get across without editing. Her Q+A is below:
How do I feel about the Supreme Court ruling?
“I am absolutely rapt we won in the Supreme Court and the Crown’s defence argument was thrown out. It was the right decision by the court and has improved human rights in this country.”
What does the Supreme Court judgement actually mean?
“The Supreme Court judgement means that when Government departments and agencies provide information to a Minister, they have to either tell the truth about the individual being discussed (i.e. use ‘truth’ as a line of defence), or if they provide incorrect and inaccurate information about them; they don’t do this deliberately and out of ill-will (i.e. use a defence of qualified privilege as an alternative line of defence).
My lawyers and I, and now the Supreme Court, feel that is a very reasonable threshold for senior members of Government to reach – especially given the calibre and salaries of these officials and the fact they’re paid by the tax payer to do an honest job and be politically neutral.
However, what the Crown, including the Ministry for the Environment, Lindsay Gow and the Attorney General have been trying to do for nearly four years now is to be able to use a defence of absolute privilege for defamation (not a defence of ‘truth’ or ‘qualified privilege’), so that they can deliberately and maliciously lie about an individual or business and have complete immunity for their actions and no accountability for it at all – ensuring the victim of the deliberate and untrue slander has no human or legal rights to pursue any type of redress. This Supreme Court ruling has put a stop to that happening. Absolute Privilege cannot be used as a defence for Government departments and agencies.
A Minister who deliberately misleads the House is at least accountable to the Privileges Committee; however the Ministry for the Environment and Lindsay Gow were claiming they were accountable to no-one – no matter how damaging and untruthful their actions were. I’m glad the Supreme Court has now addressed this. “
How will this new legal precedent affect the day-to-day running of Government?
“The new legal precedent set by the Supreme Court on Friday will have an impact on all Government Departments because they will have to be truthful, and not malicious, when providing a Minister with information about a person or business.
Now taxpayers would argue that this should happen anyway. But unfortunately, as happened in my case, there are some people working in Government Departments whose moral compass is completely out of whack. So this is going to be a real challenge for those people.”
So, now that you can legally sue the Government for defamation, what’s the next step?
“The next step would have been to continue the defamation case to a full trial in the High Court in front of a jury and seek compensation and an official apology for lying about me. However, as the Government has been dragging the matter in the courts for nearly four years now, I can no longer afford the expenses involved in going to trial. If I had been accused of murder it would be a different matter and I would be entitled to legal aid, but because it’s me suing the Government and not the other way around, my lawyers and I have to carry the full cost of the trial. The government on the other hand has an unlimited budget, a huge amount of resources available to them, a really large and expensive legal team, and have been using taxpayer’s money over the last four years to get away with being accountable for what they did to me. An everyday member of the public like me has none of these advantages – especially when they are out of work as a result of being defamed.”
So, how have you funded the case up until now given that employment has been difficult?
“I have been fortunate to have a great legal team who took on my case on the agreement that they wouldn’t be paid unless I received compensation for being defamed. So my legal team, which was led by QC Julian Miles from Shortland Chambers and included the legal firm Wilson Harle, haven’t made a dime out of this case – in fact they’re out of pocket by thousands and thousands of dollars. My responsibility in this agreement was to pay the disbursements such as court costs, flights to Wellington, hotel accommodation, photocopying etc. This doesn’t sound like much, but over four years the costs add up and it would have been enough for a deposit on a house. These lawyers did a fantastic job and took my case on because they thought a great injustice had happened and wanted to make sure the law supported the little guy. It was an honor to be represented by them and I will be forever grateful for their hard work.”
Is there any other reason why you dropped the case?
“The main reason has been the financial cost but this was made worse by the February earthquake in Christchurch. I was in the middle of the CBD when the earthquake happened and escaped with some relatively minor injuries – but two people with me weren’t so lucky. I was really traumatised by the whole experience and affected by it financially too. So I made the decision to drop the trial at that point – which was about a week after the February earthquake. It still went to the Supreme Court though because the Judge thought it was in the public interest for the defence argument to be put to the test and he said I didn’t have pay the court fees. So even though we won and I can take the case to trial now, I can’t afford to.”
Are you disappointed it’s not going to trial now?
“Yes, my lawyers and I are a bit disappointed that, due to financial constraints we couldn’t continue the case to trial. However none of us were in this for the money; we were in it to improve the law and human rights so anyone else in caught in my situation in the future had fewer obstacles to face and a real chance of getting redress. The Supreme Court judgement is a win in our books and a very satisfying achievement. Our job is done.”
Were you confident of winning your case if it went to trial?
“We were all looking forward to going to trial as we had a lot of evidence to present and very confident of a win in front of a jury. It would have been nice to have received an official apology too and been able to have my lawyers receive payment for their hard work. However, as I have said earlier – it was never about the money – it was to make a positive difference in law and we have achieved that.”
How has this whole experience affected you?
“The cost to me has been enormous, both financially and emotionally. The way I was treated was both vicious and humiliating. However, having a top legal team prepared to represent me on a ‘fee on a win’ only basis made a huge difference in helping restore my sense of self worth. I also feel that, now we have set a new legal precedent that will help other people, I can leave this matter behind me with my head held up high.”
Why did you speak up in the first place?
“I actually didn’t – so I’m no martyr in that department. I would never proactively go to the media about such matters. I didn’t tell anyone about it for 18 months. What happened was, in May 2006, Clare Curran’s appointment was made. My manager and I felt it was the wrong thing for the Minister to do, and rather than being put in a compromising position in terms of having to work with her on politically motivated material, I quit. I only had two weeks left on my contract with the Ministry for the Environment and didn’t want the drama. When I initially took the job with the Ministry, I signed a contract with the Crown stating that my work would be politically neutral at all times. I didn’t want to break this agreement nor get in trouble for breaking it. The Ministry for the Environment had offered me a full time senior position and we were talking money when Clare Curran was appointed. So I left on a good note and my manager completely understood the difficult position this appointment put me in, and in fact quit himself that day as well. However, he retracted his resignation about a week later. David Parker’s office also rang me at home asking me to stay on. But, even though I had been a Labour Party voter my whole life, my conscious told me to get out of there – and I did. Everything about it was just wrong. I didn’t tell anyone about this, didn’t go to the media, didn’t blow the whistle, and continued working for other Government Departments after this. So I’m not some brave vigilante.
Then 18 months later, in late November 2007, the matter over Clare Currans’ appointment came up in the news. Duncan Garner from TV3 contacted me. He already had all the facts and knew exactly what had happened and asked me to confirm what he already knew. I knew that if I just tried to fob him off the story would still go to air anyway and I would continue to be hounded for comment. So I answered all of his direct questions honestly. I knew the Labour Party would retaliate because they’re like that and they did. They launched a smear campaign against me within minutes of the news story going to air. However, I thought the Ministry for the Environment would actually tell them the truth about me and the standard of work I did for them and that they had hired me for work for nearly two solid years and had offered me a permanent senior position at the Ministry. It never occurred to me that they would actually join in on the politically motivated smear campaign too and make stuff up. I was devastated.”
But didn’t the Ministry for the Environment apologise to you?
“For the past four years the Ministry for the Environment has said they didn’t mean to say and write untrue information about me and that Mallard misinterpreted what they said. However, if that was the case, you would think that as soon as they heard Mallard defame me in the House, they would take immediate action to remedy the situation, correct the misinformation and clear my name. However, they didn’t. They said nothing in my defence. It wasn’t until 14 days later, after realising the mud thrown at me wasn’t going to stick, that they held a media conference and apologised to the media for getting it so wrong. However, I never received a copy of this apology. It was done just to appease the public and the media – it wasn’t for me. All I received was a scruffy draft email containing incorrect information and sent to me a few days earlier. It wasn’t the final version of the apology delivered to the media and to this day I haven’t received anything official in writing or on letterhead in terms of an apology from them. Given that they have damaged my name for life not just on the Parliamentary record but on the Internet and public record (which will remain long after I am dead) I think a proper apology would be the right thing to do. But it’s been four years now and they still haven’t – so I guess they never will.”
So who is at fault for what happened? The Ministry for the Environment or Trevor Mallard?
“Both; 50/50. Both made up complete lies about me. The Ministry for the Environment started it and Mallard added to it and took it to an even more vicious level. So, in my opinion, both are equally to blame. Mallard is accountable to the Privileges Committee and the Ministry for the Environment is accountable to the State Services Commission and, now, to the High Court. Both had the power to remedy the situation and both had editorial control over what they said about me. The Ministry for the Environment could argue that they felt Mallard pressured them into providing false information but they have never said this. Both have done nothing to put things right nor issued a sincere apology to me. Iain Rennie the State Services Commissioner was in the room and in attendence when all of this took place but did nothing to intervene.”
If you had concerns about Clare Curran’s appointment why didn’t you go to the CEO of MfE or the State Services Minister at the time?
“MfE had no CEO at the time; Hugh Logan was due to start as the new CEO the following week. The Minister of State Services was David Parker – so not really a viable option.”
Was legal action through the courts your only option in getting redress for being defamed?
“Legal action wasn’t my first line of action. I first wrote to the Ministry for the Environment, and then to Iain Rennie at the State Services Commission. They both ignored me. I then wrote to the Speaker of the House, Margaret Wilson because, if you’re mentioned in Parliament you can get a rebuttal put on the parliamentary record. However the Speaker said she wouldn’t award me my right to do this unless I could prove that Mallard’s comments were hurtful and damaging to me. It was blatantly obvious to anyone that they were but what could I possibly provide her with at the time to prove this?
I then wrote to the Chief Ombudsman’s Office as I thought they’re supposed to step in on matters like this involving the Government. However, they wrote back saying they wouldn’t do anything about it and told me to take the matter to court instead. So that’s what I did. There were no other options available to me. It’s still the same for anyone else who finds themselves in my position. The people and organisations who are there to uphold standards in the public service seem to serve no purpose when the public service doesn’t do their job properly. It’s been up to me and my lawyers to try and improve part of the quality of the public service – which is wrong as this job should be done by our representatives in Parliament and the State Services Commission – not private individuals who haven’t got the money or the resources.
The Labour Party has accused you of being a National Party lackey?
“That’s a joke. I had been a Labour Party voter all my life and looked up to people like Sonja Davies and David Lange. I even had a picture of Joseph Savage on my bedroom wall as a kid. The concept that someone might have a conscious and be motivated by their own morale fibre, even at great personal cost, is beyond their realm of understanding. Everyday people get it, but they don’t – and they never will.
After they chewed me up and spat me out, they still hadn’t learnt from their mistakes and went on to attack Owen Glenn for telling the truth. I was crushed by that and felt so sorry for him as I knew what it was like to be on the receiving end of untruthful attacks. Rather than intimidating me further, it just spurred me on even more as there were other people being hurt; it wasn’t just me.
P.S Naturally I didn’t vote Labour in the last election and never will while the same faces that were there in 2007 are still in the front rows. It would be fair to say I am a National Party supporter now though :-)”
Nice to know Trevor converted at least one Labour Party voter to National with this episode. I suspect that in fact it was far more than that. A number of Labour voting public servants have said they were horrified that it so easily could have been them held up in Parliament as incompetent, just for telling the truth.