Brian Rudman: Defamation - only the lawyers are winners

The only ones guaranteed to go home with big smiles on their faces are the lawyers who tend to win, whichever side they're on. Illustration / Peter Bromhead

There was a time when ruling class toffs took themselves so seriously that at the drop of an insult, they'd disappear into the woods at dawn, with swords or pistols drawn to assuage their honour.

These days we see the same sort of silliness ending up in the courts, with slighted moneybags trying to persuade juries and judges that their reputations have been so sullied that nothing less than the financial ruin of the offender will kiss the hurt better.

In the end, a lot of dirty linen is aired, the public is left both titillated and often confused about what all the fuss was about. The only ones guaranteed to go home with big smiles on their faces are the lawyers who tend to win, whichever side they're on.

Over the past week or so, two celebrity cases have been in the headlines, highlighting how inconclusive and unsatisfactory this modern form of duelling is in settling issues of "honour" and "reputation".

In one, serial "victim," millionaire, Colin Craig, who as Conservative Party leader had previously set his lawyers on at least eight media organisations and individuals for alleged defamatory comments, found himself in the dock for a change, sued by a minor political activist, Jordan Williams, who objected to Craig's claim Williams had been part of a plot to remove him from the leadership.

To my mind, reputations plummeted as it emerged that Williams collected confidential information while engaged in a brief affair with Craig's publicist, a woman who, we learned, Craig had made unwanted advances on himself.

Despite these unsavoury revelations, the jury awarded Williams the full $1.27 million he claimed in damages. That was last September.

On appeal, Justice Katz has now ruled these damages are so ridiculously high, they constitute a miscarriage of justice and ordered that unless both parties agree to her setting a new figure, there'll have to be a new trial.

Meanwhile, in Wellington, Labour leader Andrew Little scored a victory - possibly temporary - with a High Court jury dismissing a $2.3 million damages claim from hoteliers Lani and Earl Hagaman.

Mr Hagaman had donated $100,000 to the National Party two days before the 2014 election. Soon after, the Hagaman's hotel group won a New Zealand Government contract to run the one hotel on Niue Island. The Government followed up with a $7.5 million refurbishment grant.

A year or so later, following a radio report revealing these facts, Little added two and two and came up with five, declaring it "stinks". Subsequently, the Auditor-General found nothing untoward and the Hagamans sued.

The wealthy hoteliers rejected subsequent apologies in favour of their week in court.

Now the jury, by majority decision, has decided Mrs Hagaman had not been defamed. It found Mr Hagaman was defamed in one instance, but jurors couldn't decide whether Little's defence of qualified privilege, his right as a politician doing his public duty to speak out, could apply.

Nor could they decide on four other statements he made.

So Little is off the hook, unless Hagaman, who the court was told is a dying man, seeks a new trial.

If Hagaman dies before that happens, Little can also relax. In the eyes of the law, personal reputation ceases to have a monetary value to be fought over in court, the moment a person dies.

Indeed, such are the vagaries of the law that if Little had been more careful and expressed his doubts in the parliamentary debating chamber, he could have made his comments with impunity under the protection of parliamentary privilege.

It's the ultimate protection politicians have written into the law, to permit themselves the right of free speech, unencumbered by the risk of being dragged off to the defamation courts.

If it's good enough for them then why not the rest of us.

If people are defamed, there are more sensible ways of getting the truth out into the open than conducting a ruinously expensive trial with the threat of bankruptcy hovering over whoever loses.

The pursuit of damages harks back to the ridiculous days of pistols at dawn. Parliamentarians have ensured their right to free speech is well protected. It's time they shared the privilege.