The jury decision in the Hageman defamation case is now out and the reporting has been, how shall I put this, sub optimal. Some media are reporting that Little has been found guilty of defamation.
Following are a few comments quickly typed up in the 5:30 PM train on the Western Line.
First up, Andrew Little has not been found guilty of anything. The case is a civil case, not a criminal one. Mr and Mrs Hagaman have said that they have lost money because Little said awful things about them and their reputation has been damaged. They want to be compensated.
From media reports of the trial there were six separate occasions when Little said unnice things about them. It appears the Jury has held that the nasty things claimed to have been said about Mrs Hagaman are not actionable, and only one of six things said about Mr Hagaman may be.
They then said that they could not decide if qualified privilege applies. If it does it is normally the end of the matter. Qualified privilege basically means that you can say nasty things about people but there is a good public policy reason for allowing this to happen, such as our political parties ought to be opened up to scrutiny and tough questions should be asked when things look unhealthy for our democratic system.
Some cases, such as this one involves a Jury. The Jury’s role is to listen to the instructions of the Judge and then deliver a verdict. After they have done so the Judge then may enter Judgment in accordance with the verdict but not necessarily. The Judge still has the power to give judgment to the party who did not seem to actually win.
In this case, from the media reports, the Jury is unable to say if qualified privilege applies and have not delivered a verdict. Presumably this means they cannot decide if Little was motivated by malice when he said whatever he did say.
If a court holds that a defamation has occurred and that qualified privilege does not apply then the correct thing to do is to enter judgment and then decide on the amount of damages.
This is why Little’s offer of $100,000 damages may become very relevant.
Presumably it was made by way of a Calderbank offer. This means that if only one of six causes of action succeeds and the damages are less than this then the award of costs could go against the Hageman’s even though they may have succeeded in Court.
Time will tell. But the next media outlet that says that Little has been found guilty of defaming the Hagemans ought to rethink their role in life.