Confidentiality, Craig and Court

Deborah Hart observes:

In March, Mr Craig was ordered to pay his erstwhile press secretary, Rachel MacGregor, a record $120,000 in damages after it was found that he had comprehensively breached their confidential settlement for his own benefit, according to a withering finding by the Human Rights Review Tribunal.

Ms MacGregor made a claim to the tribunal believing Mr Craig had broken the terms of a mediated deal reached after she complained to the Human Rights Commission that he had sexually harassed her.

The tribunal agreed, finding she suffered significant humiliation, loss of dignity and injury to feelings. It ordered Mr Craig to pay her $128,780 in damages and costs, with $120,000 for humiliation, loss of dignity and injury to feelings arising from his remarks about the confidential agreement.

These findings were only published after the lengthy defamation case involving Mr Craig.

Understandably, perhaps, much of the public attention lingered on the defamation case, although this other one may ultimately contain the most salutary lesson.

After all, defamation can be delicately defined. What one jury might see as the grossest injury to somebody else’s reputation, another might see differently. The principle is unambiguous but nailing it down can be elusive. But confidentially mediated settlements are always what they are and always mean what they say.

This is an area Mr Craig struggles with. ?On the one hand, he expects rigid adherence to confidentiality when imposed by him. ?But he considers himself exempt under circumstances that, in his own mind, justify it for the greater good. ?When, in his mind, adhering to a confidentiality agreement would be particularly unfair on him. ?

A confidentiality clause is a standard term in mediations. It usually says that both the terms of the settlement, and the fact that settlement has been reached in the first place, are strictly, utterly and irrevocably confidential to the parties and their representatives, except in highly unusual cases – this was not one – where disclosure may be required by law. And the principle is universal in developed nations.

As a successful businessman who once put himself forward to become a lawmaker, it’s astonishing that Colin Craig apparently didn’t know this, either through his own experience or that of his friends, or simply by doing a fast computer search.

Mr Craig knows it. ?But he feels there are limits to the law. ?And he is justified in breaking the law when he does so to protect himself. ? This was clearly on display during the defamation case with Jordan Williams, where Craig justified his actions as nothing more than ‘self-defense’.

And as we have seen, he is genuinely perplexed that he isn’t allowed to break the law when he feels he is at a disadvantage?from having to stick to it.

Hayden Wilson, counsel for Ms MacGregor, probably summed it up well when he said that, while the case was unique in a lot of ways and the circumstances are unlikely to be repeated, “it does show that the Human Rights Review Tribunal, in addition to responding to the effect on complainants, is also willing to protect the integrity of the resolution processes before the Human Rights Commission.

“The Tribunal comprehensively rejected Mr Craig’s argument that he was entitled to breach the confidentiality provisions of the settlement and the HRA.”

Even if Mr Craig’s argument that Ms MacGregor had breached confidentiality had been upheld, and the Tribunal found it had no evidential foundation, a retaliatory breach, much less one on this scale, was not the right response, according to Mr Wilson. There are processes under the Act, such as further mediation or proceedings before the Tribunal, that can and should be used instead, he said.

A lot of it comes down to the scale of the breaches and the scale of the responses. ?Mr Craig calling a national press conference to tell all of New Zealand at the same time is not a reasonable response to MacGregor confiding in a friend, though she didn’t even do that.

The real problem is that Mr Craig still doesn’t see it that way. ?In other defamation actions, he is claiming defamation where one person emailed one other person with a statement that may or may not be true about Mr Craig. ?Mr Craig has discovered this email and is now claiming the writer of the email defamed him. In many instances in my own case questions were asked, as journalists and investigators do and he has taken those to be defamatory as well.

Once that sinks in, the fact that Mr Craig sees?actionable defamation claims arising out of personal communications that were never “published” beyond the participants, and the fact that he considers it acceptable “self defense” to call a national press conference to publish and send a booklet to 1.6m households in response, you start to understand why this is such a unique and somewhat absurd situation.


– Deborah Hart, NZ Herald