[1] A plaintiff in a defamation case claims general damages and “damages for pecuniary loss in a sum yet to be quantified”. The defendant seeks particulars of that pecuniary loss, in accordance with High Court Rule 5.33.

[2] Must the plaintiff give particulars? Or does s 43 of the Defamation Act 1992 (Act) prohibit particularisation of pecuniary loss because the defendant is a “news medium”?

[3] Section 43 prohibits a plaintiff in a defamation claim against a news media defendant from specifying the amount of damages claimed in its statement of claim. It was enacted to protect news media from extravagant gagging writs. But in this case the defendant, a news medium, eschews that protection. It wants the pecuniary loss claimed particularised. An Associate Judge decided particulars must be given
by the plaintiffs. They now apply for review of that decision.

AYERS v LEXISNEXIS NZ LIMITED HC WN CIV 2010-485-1274 [16 November 2012]

Background

[4] The defendant, LexisNexis, is the publisher of the NZ Lawyer magazine. Its

1 May 2009 issue included an article authored by the first plaintiff, Mr Ayers. The title of the article was “Flaws found in “EnCase®” computer forensic software”. The article was critical of a product developed and sold by a company called Guidance Software. It is used by computer forensic consultants to automate parts of their analysis. Mr Ayers is the sole shareholder and director of the second plaintiff, Elementary Solutions Limited (Elementary). Elementary’s business involves conducting computer forensic examinations and giving expert evidence in Court. The majority of its work is referred by lawyers. They are of course the principal target audience of NZ Lawyer. Each issue has an estimated readership of 12,500.

[5] LexisNexis says that it published Mr Ayers’ article pursuant to a specific

agreement with him that it would also publish any responses received.

[6] LexisNexis then received responses from a Mr Victor Limongelli, Chief Executive of Guidance Software, and from a Mr Campbell McKenzie, an associate director of PricewaterhouseCoopers. PricewaterhouseCoopers competes with Elementary in the field of computer forensic analysis. The responses were published in the 29 May 2009 issue.

[7] The responding articles were critical of Mr Ayers’ 1 May 2009 article. The plaintiffs allege that the articles bear a number of meanings defamatory of the plaintiffs. These include that they knowingly published false and deceptive statements about the EnCase® software, acted unethically and were incompetent in their claimed field of expertise.

[8] The plaintiffs have reached out of court settlements with both Guidance Software and PricewaterhouseCoopers. In July 2010 they brought the present proceeding against LexisNexis. Paragraph [24] of the statement of claim reads:

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.

Continue reading Ayers v LexisNexis NZ Ltd

Details

AGLC: Ayers v LexisNexis NZ Ltd [2012] NZHC 3055
Case: [2012] NZHC 3055
Decision Date: 16 November 2012

CaseChat Overview and Summary

The plaintiffs, Daniel Francis Ayers and Elementary Solutions Limited, initiated legal proceedings against the defendant, LexisNexis NZ Limited, a publisher of the NZ Lawyer magazine, alleging defamation in articles published in the magazine. The plaintiffs sought general damages and damages for pecuniary loss. The defendant applied for particulars of the pecuniary loss claimed by the plaintiffs. The plaintiffs opposed this application, arguing that they were not required to provide particulars of pecuniary loss, and that s 43 of the Defamation Act 1992 prohibited the requirement of particulars of pecuniary loss. An Associate Judge ordered the plaintiffs to provide particulars of pecuniary loss. The plaintiffs sought a review of that decision by the High Court. The issues before the Court were whether s 43(1) of the Act applied to special as well as general damages, and whether the Court could require particulars of pecuniary loss despite s 43(1). The Court held that s 43(1) applied to special as well as general damages. The purpose of s 43(1) was to prevent the use of defamation proceedings as a means of stifling expression by the news media. The Court held that the prohibition on pleading damages in s 43(1) did not prevent the requirement of particulars of pecuniary loss. The requirement of particulars was not a pleading, but rather an order that the opposing party provide information about the case it faced. The requirement of particulars of pecuniary loss did not contravene the purpose of s 43(1). The Court held that the Associate Judge was correct to order particulars of pecuniary loss, although for different reasons. The Court dismissed the plaintiffs' application for review.

Orders