BRIEFCASE: A $270K defamation; Not enough lawyers; The billable hour; Law firm ownership
Heavy price for 'God's testimony'
Mounting a defamation action could be seen as the legal equivalent of attempting an assault on K2. It’s an area of law fraught with risk and emotion, garnished with technicality and drama.
But, ultimately, it’s always going to be what the Americans would call a crap shoot.
And what crap it turned out to be for the four defendants who, staunch in their Christian belief that what was written in the Ian Wishart-published book The Hunt was necessary and true, wore a $270,000 verdict against them last week ($220,000 in general damages plus $50,000 in aggravated damages) after a 10-day trial and a day’s deliberation by an 11-person jury (one was excused for being unable to cope with the subject-matter).
The repercussions, including a finding of recklessness against the co-authors and publisher, are significant from both a financial and reputational view. Apart from the significant award, the issue of costs now looms large and could amount to a hefty if not crushing additional six-figure sum.
The lawsuit, brought by former Kiwi diplomat Lindsay Smallbone, who now lives in London and was married to the defendant Paulette Moray four decades ago, largely centred on his assertion that allegations of sexual deviancy, voyeurism and perversion, among other things, were not only irrelevant to Paulette’s compelling story about recovering her abducted children but were also false.
The case traversed locations as diverse as garden parties at Buckingham Palace to “rat-infested back streets of Bangkok” along with locations ranging from his “leafy address” in London to the Riviera to Hawaii and Cambodia.
His case, presented by Wellington barrister Peter McKnight, mounted a robust attack on the defendants for failing to put the allegations to Mr Smallbone before publication, as well as attacking the assertions of sexual perversion.
The defence maintained the issues did not need to be presented because Paulette’s story was “testimony” provided to Wishart and his co-author cockney George London, a former private eye who investigated the whereabouts of Paulette’s lost children.
Much was made of telling God’s truth, as both Paulette and Mr Wishart are avowed Christians and made the point clearly, although a tendency toward embellishment or exaggeration by Paulette, as argued by Peter McKnight, was a factor that may have resonated with the jury.
Paulette’s reaction to the verdict was to remove her wedding ring and give it back to George, with a stiff remark about their future together.
Their lawyer, Chris Tennent, had mounted a somewhat loquacious final argument that took two and a half hours, while cross-examination of the plaintiff’s witness generally failed to land the blows that Mr Wishart, a non-lawyer, may have accomplished more often in his self-representation.
He may now be considering what impact the jury’s finding has on his next defamation, where he is plaintiff in an $8 million suit.
Justice Joe Williams was greatly amused, along with many others, by the suggestion in the Smallbone case, made by co-defendant George London, that he thought there was “nuffin’ in the book for Mr Smallbone to worry about,” if I may paraphrase his Cockney."
Mr London had himself been called terrible things, such as a “merchant banker” but had never done anything about it.
His Honour and others considered that being so-described was evidently considered tantamount to the most gross defamation, as indeed it may well be in some quarters, but of course it was rhyming Cockney slang.
Mr London went on to explain that he had also been called a “James Hunt” too. Although cross-examination failed to elicit what that meant, everyone knew.
Vern Peters: solid and sharp
Wellington legal identity Vern Peters died last week at his home on Waiheke.
Mr Peters, a partner of my own father-in-law, Harry Arndt, and father to Justice Mary Peters, was a stolid, no-nonsense character whose deliberate manner and speech concealed a sharp legal mind.
He was as solid a lawyer and man as anyone could wish for. I last saw him a few weeks ago in Wellington when he was in fine fettle and down handling work for the firm, which he also did from his part-time office in Oneroa.
More lawyers, please
Ministry of Foreign Affairs and Trade chief executive and lawyer John Allen believes we should have more lawyers.
This may seem surprising to many, myself included, but his comments to Otago law students last week were based on the fact that lawyers possess skills that are vital – negotiation, reasoning and good communication expressed succinctly (where he referenced Twitter as being a good tool for providing succinct writing).
He describes himself as a “serial failure” because his career keeps going off track. A partner at Rudd Watts at 27, he went to NZ Post as CEO before being appointed to the MFAT position where he’s needed to remove some of the FAT from the Ministry. He also indicated that people needed to take risks with their careers instead of playing safe.
The law ownership issue
More next week on the law firm ownership stakes but the man who helped kick things off with his letter to Justice Minister Judith Collins, Tomkins Wake CEO Richard Rowley, comments that the Law Society stance that have a monopoly service means trading off the risk issue for lawyers.
“However, a more realistic position may be to allow clients and suppliers to contract out of that position. Sophisticated clients know the risk and may prefer to self insure than pay high fees to providers," he says.
Mr Rowley also comments that some observations made regarding offshore expansion by local law firms having been forestalled by Kensington Swan’s stumble in Abu Dhabi in the midst of the GFC was “preposterous.”
He says: “The reality is that each firm should be entitled to make these decisions for themselves.” Ownership being spread between partners or other investors could let forms succeed or fail “without any risk to any other firm or business.”
John Bowie is publisher of LawFuel