Damages were claimed in 63 % (12) of the newspaper claims, an apology in 16% (3), declaration and retraction in 5% (1) of the claims each, an injunction in nearly 11%(2) and summary judgment (on the basis of a statement of error and costs) in 5%(1). Sixteen percent (3) did not detail what remedies were claimed.
Two-thirds of the actions against television broadcasters (10) sought damages. One writ sought a declaration, and in the remaining four cases, no details of the remedy sought were given. In six (60%) of the actions seeking damages, the amount was unspecified, but in one of those cases, an apology was also sought. In the four cases (40%) where damages were specified, these ranged from $1million, $800,000, $475,000 to $250,000.
In only one claim filed against radio broadcasters were details of the remedies claimed given – in this case, damages of $100,000, an apology and a correction. The matter was actually settled by payment of the plaintiff’s costs, although costs to the broadcaster were not insignificant.
Damages were the most commonly claimed remedy, being sought in 100% (4) of the claims made against magazines, in one quarter (1) of cases alone, in 1 together with an apology, in 1 together with a retraction and in another together with costs, a correction and an apology. Levels of damages claimed were known in half of these cases (2) and were very high, being $7.5 million and $300,000.
Remedies sought against book publishers were significant. Damages were sought in all 4 cases, in three cases together with an apology. Damages sought were also significant, being $50,000, $250,000, $450,000 and $700,000. In two cases, injunctive remedies were also sought, being withdrawal of a book in one case and a permanent injunction in another. Two claims also sought costs, one of these also sought interest. The claim against the writer sought damages of $130,000.
Therefore, the most common remedy sought in the total of 50 claims was damages, which were sought in 74% (32) claims. The next remedy most commonly sought was an apology, which was sought in 20% (10) claims, then injunction (8% or 4), followed by declaration (nearly 6% or 3), correction (4% or 2) and retraction (4% or 2). In 20% (10) cases, the remedy sought was unclear. (See Fig. 47 below).
Fig. 47
Type of remedy sought in court claims (N=50) 74% 20% 8% 6% 4% 4% 20% 0% 10% 20% 30% 40% 50% 60% 70% 80%
Damages Apology Injunction Declaration Correction Retraction Unknow n
Seventy-two percent (23) of the claims where damages were sought were filed against news media defendants. Section 43 of the Defamation Act 1992 requires that the amount of damages claimed not be specified on the statement of claim where the defendant is a news media defendant. It would be reasonable to expect that the level of damages would therefore be unknown by the defendant in these claims. However, in over half of the claims against news media defendants, (57% or 13), the level of damages claimed was somehow known in spite of the legislative provision. It is possible that the information was disclosed through prior correspondence or negotiations, or by mistake (one lawyer who took part in the lawyer survey457 identified a claim against a news media defendant in which the level of damages sought was detailed because the plaintiff was unrepresented and had disclosed the figure claimed when filing the papers.)
These results suggest that clear breaches of s 43 have occurred. What might follow from this? The primary mischief addressed by s 43 has received judicial attention since the media survey was carried out. It is clear that breach may not result in an automatic stay of proceedings or indeed any serious sanction, unless the breach was deliberate. In Hubbard v Fourth Estate
Holdings Ltd,458 the High Court confirmed that the rationale for the provision is to ensure that unrealistically large sums of damages are not specified for purposes of intimidation of a media defendant – in other words, to prevent gagging writs.459 In Hubbard, the plaintiff was a public figure engaged in campaigning for the Mayoralty of Auckland, when a business magazine attacked his integrity in a robust article. The court accepted that the plaintiff issued genuine proceedings, but had breached s 43 by filing a statement of claim which specified the level of damages at $1.5million. The plaintiff went on to refer to the level of damages claimed in later public statements and to the merits of his claim. The court accepted that the figure was detailed in the claim due to an error rather than by way of deliberate breach. Further, immediately the matter was drawn to the attention of the plaintiff and his advisers the error was acknowledged and an amended claim was filed within a matter of days. The breach of s 43 and the plaintiff's public comments were therefore found to be due to inadvertence and lack of appreciation of the law. Mr Hubbard also apologised and his counsel apologised to the court. Because of this and because there was no evidence the defendant was actually intimidated by the specified claim, the Court refused to stay proceedings. However, costs lay where they fell because the plaintiff’s behaviour had invited the application.460
Not only may inadvertent breach of s 43 be excused, but the effectiveness of the section generally is limited because there is nothing to prevent counsel or any party referring to the amount pursued orally during the hearing itself.461 Further, in Hubbard, the Court pointed out that a plaintiff might create future tactical difficulties by referring to the amount of damages claimed.462 It is likely, then, that the effectiveness of s 43 in preventing a form of chill known as the gagging writ is limited, and further, that the courts do not consider inadvertent breach of the provision to be particularly serious. It will also be seen below that the limited information collected from defamation lawyers suggests the incidence of gagging writs is not high in any event.463
Levels of damages were detailed in 62% (29) of the claims in which damages were sought. The lowest figure claimed was $2,000, sought from a newspaper. The highest claim was $7.5million, made against a magazine defendant. The table below shows clearly that the
458 Unreported, High Court, Auckland, CIV-2004-404-5152, 16 February 2005, Venning J. 459 Ibid, [32]-[33].
460 Ibid, [56]. The possibility of alternative contempt proceedings was not ruled out: [57]. 461 Ibid, [[37]. See also J Burrows and U Cheer, Media Law in New Zealand (2005, 5th ed), 73.
462 Hubbard v Fourth Estate Holdings Ltd, Unreported, High Court, Auckland, CIV-2004-404-5152, 16
February 2005, [37].
larger figures were claimed against television broadcasters, publishers and magazines. (See Table 4 below).
Table 4.
Levels of damages claimed – all media 1996-2001
Claims Defendant Claims Defendant
1. $2,000 Newspaper 11-12. $250,000 TV, Publisher 2. $40,000 Newspaper 13. $300,000 Magazine 3. $50,000 Publisher 14. $450,000 Publisher 4. $80,000 Newspaper 15. $475,000 TV 5-7. $100,000 Newspaper x2 Radio 16. $700,000 Publisher 8. $120,000 Newspaper 17. $800,000 TV
9. $130,000 Writer 18-19. $1million TV, Newspaper
10. $200,000 Newspaper 20. $7.5million Magazine