Ayers v LexisNexis NZ Limited - [2014] NZHC 2998

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1274 [2014] NZHC 2998

BETWEEN
DANIEL FRANCIS AYERS

First Plaintiff

AND

ELEMENTARY SOLUTIONS LIMITED Second Plaintiff

AND

LEXISNEXIS NZ LIMITED Defendant

Hearing: 6 October 2014

Counsel:

C McVeigh QC and H Coull for Plaintiffs
D McLellan QC for Defendant

Judgment:

28 November 2014

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] This is a defamation claim, in which the defendant, LexisNexis, says that the second plaintiff (Elementary) has failed to comply with an order made in November
2011 that it provide full and proper particulars of the alleged injury to its reputation and its claimed pecuniary loss. It now applies for an order striking out the claims made against it by Elementary. It also applies for an order for further and better discovery by the plaintiffs.

Background

[2] The first plaintiff, Mr Ayers, is a director of and carries on business through Elementary. LexisNexis publishes NZ Lawyer, a weekly periodical for legal professionals.

[3] In May 2009 LexisNexis published in NZ Lawyer an article by Mr Ayers

entitled “Flaws found in EnCase ® ASE Computer Forensic Software”.

DANIEL FRANCIS AYERS v LEXISNEXIS NZ LIMITED [2014] NZHC 2998 [28 November 2014]

[4] LexisNexis received two letters in response to Mr Ayers’ article. The authors of the two letters took issue with some of the contentions in Mr Ayers’ article. The letters were published in the NZ Lawyer issue published on 29 May 2009. Mr Ayers and Elementary contend that the publication of the two letters defamed them.

[5] Mr Ayers and Elementary have settled defamation claims made against the authors of the letters (or the companies by whom the authors were employed). They commenced the present defamation proceeding against LexisNexis, as publisher of the allegedly defamatory material, in July 2010.

[6] Under s 6 of the Defamation Act 1992, proceedings for defamation brought by a corporate plaintiff shall fail unless the body corporate alleges and proves that the relevant publication has caused or is likely to cause pecuniary loss. Since late
2010, LexisNexis has been pursuing a request for further particulars of the pecuniary loss which Elementary claims to have suffered (or to be likely to suffer).

[7] On 29 November 2011 Associate Judge Gendall ordered Elementary to

provide “full and proper particulars” of: 1

(a) the respects in which its reputation is alleged to have been very seriously injured; and

(b) the “pecuniary loss” that it has allegedly suffered and will continue to

suffer.

[8] An application to review that decision was dismissed by Kós J on

16 November 2012.

[9] When the particulars were not provided, the Associate Judge made a further order on 13 May 2013 directing the plaintiffs to file an amended statement of claim within 30 working days. That order was not complied with, and on 13 August 2013
Williams J ordered that an amended statement of claim be filed within 28 days.

1 Ayers v LexisNexis NZ Ltd HC Wellington, CIV-2010-485-1274, 29 November 2011 at [84].

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2998
Decision Date: 28 November 2014

CaseChat Overview and Summary

The case of Ayers v LexisNexis NZ Limited was a defamation claim brought by Daniel Francis Ayers and Elementary Solutions Limited against LexisNexis, the publisher of an allegedly defamatory article. The defendant argued that Elementary had failed to comply with court orders to provide full and proper particulars of the alleged injury to its reputation and claimed pecuniary loss. The court was required to decide whether Elementary's third amended statement of claim provided sufficient particulars of the alleged injury to its reputation and pecuniary loss, and whether LexisNexis was entitled to further particulars of Elementary's loss of profits claim.

The court found that Elementary's third amended statement of claim provided sufficient particulars of the respects in which its reputation had been very seriously injured, as the pleaded defamatory meanings and loss of profits allowed LexisNexis to understand the case it had to meet. However, the court held that Elementary had not provided full and proper particulars of its alleged pecuniary loss. If Elementary intended to claim special damages for loss of profits, it had not provided sufficient particulars of its claimed losses. The court ordered Elementary to provide further particulars of its loss of profits claim.

The court refused LexisNexis' application to strike out Elementary's claims for loss of profits, as the original order did not specify what the plaintiffs were required to provide by way of further particulars, and the plaintiffs may not have been clear on precisely what LexisNexis was seeking until June 2014. However, the court found that LexisNexis was entitled to further particulars of Elementary's loss of profits claim if Elementary intended to pursue it.

In conclusion, the court made the following orders: (1) LexisNexis' application for an order striking out Elementary's loss of profits claim is refused; (2) Elementary is to provide further particulars of its loss of profits claim within 14 days of the date of the judgment; (3) LexisNexis' claim for particular discovery of Mr Ayers' tax returns is refused; (4) the application for particular discovery of Elementary's tax returns is adjourned; (5) the application for particular discovery of the documents in categories 10 and 12 is adjourned; and (6) the plaintiffs are to pay LexisNexis' costs of the application on a "2B" basis, plus disbursements as fixed by the registrar.

Orders