Sasha Borissenko: The Colin Craig v Rachel MacGregor case nuts and bolts

COMMENT:

The Court of Appeal has upheld a decision from the High Court that former Conservative Party leader Colin Craig sexually harassed his former press secretary Rachel MacGregor.

Let’s look at the nuts and bolts of the case.

Between 2011 and 2014 Rachel MacGregor was the press secretary for Colin Craig. Throughout the employment relationship letters and texts were sent to MacGregor,one referring to sleeping between MacGregor’s legs. A confidentiality agreement and a bank of defamation cases followed.

MacGregor had multiple causes of action, including: Craig’s statements during a press conference with his wife on June 22, 2015 that insinuated MacGregor made false claims of sexual harassment and was a liar; a letter written by Craig to party members on June 25,2015 that insinuated MacGregor was a liar, that MacGregor had withdrawn false claims of sexual harassment and had some kind of continuing inappropriate relationship with Craig, a married man; another press conference on July 29, 2015 where Craig said MacGregor had victimised the Craigs; and statements made in a “Dirty Politics” booklet published July 29, 2015 where Craig said MacGregor had withdrawn her claims and had falsely played the “victim”.

For context, in the 2015 case of Craig v Slater Justice Kit Toogood found Craig had engaged in moderately sexual harassment of MacGregor, a decision which was upheld on appeal.

Justice Toogood said Craig’s conduct amounted to “moderately serious” sexual harassment. On appeal of the High Court decision, the Court of Appeal said: “Though Mr Craig sought to reassure Ms MacGregor she would not lose her job over rejecting his further advances following the 2011 election night, the power imbalance in the workplace relationship meant Ms MacGregor chose not to complain for that very reason.

“Though not the primary factor, the harassment was an operative factor in Ms MacGregor’s decision to resign”.

The Court of Appeal found Craig’s conduct to be “intentional, sexualised conduct directed at a workplace subordinate”.

The Court of Appeal also said the High Court was right to hold that where sexual harassment involves a power imbalance favouring the perpetrator over the recipient, it’s “reasonable to draw a rebuttable inference” that the behaviour was unwelcome, “whether the complainant objected at the time of the alleged harassment or not”.

Although MacGregor wasn’t a party in the 2015 case and subsequent appeal, last week’s appeal decision was an attempt to challenge that decision.

It’s since been a long and drawn out process. The line of proceedings we are discussing today were filed in November 2016 but not served for about nine months. MacGregor filed a defence and counterclaim in June 2017. In the High Court Justice Anne Hinton found both parties had defamed each other “to a limited extent”.

She also held that Craig sexually harassed MacGregor. It meant Craig couldn’t use a defence of truth regarding his defamatory statements that MacGregor had “falsely claimed” to have been sexually harassed. Craig was also not protected by the qualified privilege applying to his responses to claims of sexual harassment.

Craig – represented by Stephen Mills QC S J Mills QC and Chapman Tripp’s Tom Cleary – appealed the High Court decision on two grounds: that the judge was wrong in finding Craig had sexually harassed MacGregor (meaning his defence of truth should succeed), and that the judge was wrong in finding Craig lost the qualified privilege.

On the issue of sexual harassment – Craig sought to challenge the High Court’s decisions on the facts. He said the correspondence was inconsistent with sexual harassment. The Court of Appeal acknowledged it was not the habit of the court to speak with a forked tongue – namely, being asked to reach inconsistent findings of fact about whether sexual harassment occurred based on different sets of evidence in different cases. Interestingly the court found the evidence to be materially consistent.

“We have an employer in the public eye who sexually harasses his employee. Lacking insight, he believes his actions were not sexual harassment. Objectively assessed, they were.”

On the issue of qualified privilege: “The employee confides in a believed-friend. That person breaches the confidence (and his own express undertaking) and uses the information for his own political purposes, to attack the employer.

“The employer then counter-attacks. In doing so he brands the employee a liar and a maker of false accusations. In fact, she is neither — but the employer enjoys privilege and thus is not liable for defaming her. That seems profoundly wrong.

“The defendant should not be entitled to skirt the more demanding thresholds for these defences by slipping instead through the back door of privilege, simply because they were the subject of attack by another person altogether.”

The court found Craig deliberately targeted MacGregor in his replies, instead of targeting those who in fact had attacked him. “Ms MacGregor was not so much caught in the cross-fire, as caught in the cross-hairs…”.

Interestingly the court disclosed an email Craig sent to his lawyer on June 18, 2015, stating Craig’s plan to: “Issue a statement advising of her performance failures, mental instability and pointing out the big flaws in her claim. The angle is “blackmail attempt fails” – once you work it through it is a good angle. It will be a media storm of course and we both end up bloodied. In reality though I have nothing left to lose if her claim is printed already.”

Craig was ordered to pay MacGregor costs for a standard appeal, with usual disbursements. Will this go to the Supreme Court? Crazier things have happened.

Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.

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