Another battle in the war of words between Colin Craig and Jordan Williams has broken out after the Supreme Court's decision to let a previous judgment stand despite a sailing trip by a judge and a QC.
Craig described Williams' attempt to get the judgment recalled as a "desperate move", while Williams said he was "damned if he did, damned if he didn't" when asked to give his blessing to the holiday.
Justice Terence Arnold was one of five Supreme Court judges who heard an appeal last September in the defamation saga involving Craig, the former Conservative Party leader, and Williams.
Several months after the hearing, Craig's lawyer Stephen Mills, QC, called Williams' lawyer Peter McKnight to explain he was booked to go on a sailing trip with Justice Arnold over summer.
McKnight, after consulting with Williams, gave consent for the trip to go ahead as first reported by the Herald last week.
Then in April, the Supreme Court ruled in favour of Craig and ordered a new trial be held.
The judges were split 3-2 with Justice Arnold siding with the majority.
While there was no suggestion Justice Arnold and Mills discussed the case while on holiday, Williams' legal team took the rare step of asking for the judgment to be "recalled".
This was flatly rejected by the Supreme Court in a judgment released today.
Craig told the Herald he was "not surprised at all" by the failed recall application, which means the case heads back to the High Court for a second trial.
He was ordered to pay a record $1.27 million after a 2016 jury trial, which was appealed and cross appealed all the way to the most senior court.
"It was a desperate move," Craig said of the recall application. "It was obvious, given Mr Williams had approved [the holiday], he really had very little grounds.
"This wasn't something people tried to do secretly. It was done openly and with his approval. I'm pretty happy. Although not surprised at all."
In response to the Supreme Court ruling, Williams said he felt "I was damned if I did, damned if I didn't" when asked about consent for the sailing trip.
"The hearing had finished – we were just waiting for the decision – so there was no possibility of recusal. We feared that non-consent would be seen as insulting to the judge."
While friendships between judges and lawyers are common in New Zealand's small legal world, the guidelines for judicial conduct state "care should be taken to avoid direct social contact with practitioners who are engaged in current cases before the judge".
In opposing the recall application on behalf of Craig, Julian Miles, QC, said the judicial guidelines are not binding rules and, in any matter, were not breached because consent was given and the case was not discussed on the holiday.
Even if the judicial guidelines were breached, the Supreme Court ruling noted that alone does not necessarily comprise the apparent bias needed to recall the judgment.
Apparent bias is the test where "there is a real possibility that in the eyes of a fair-minded and fully informed observer the judge might not be impartial in reaching a decision".
Williams and McKnight both told the Supreme Court they were unaware of the judicial guidelines, and if they had, a different decision might have been reached.
This was dismissed by the Supreme Court, who said Williams' decision not to object was a considered one in which he consulted his lawyer.
"We see no reason why a party could not consent, so long as it is informed, to such contact," said the Supreme Court.
"This is not a situation where there was, for example, confusion as to what was proposed. Nor did the nature of the event change in some way, for example, from a trip with a much larger group of people to the small group involved here.
"Rather, the trip went ahead as foreshadowed with no suggestion on the evidence before us that, contrary to the undertaking given by Mr Mills, any discussion about the appeal took place on the trip.
"Finally, there is force in the submission made on behalf of Mr Craig that the delay in raising this matter is both tactical and disqualifying. The point made in the authorities cited by Mr Miles, QC, is that a party who is legally represented, as here, cannot 'stand by' until judgment and then, 'if those contents prove unpalatable', complain about the appearance of lack of partiality."
Williams told the Herald he was "frustrated" the recall application was decided on the basis of his consent.
"When my lawyers were approached by Mr Craig's QC asking for our consent to the joint sailing holiday, I felt I was damned if I did, damned if I didn't. The hearing had finished – we were just waiting for the decision – so there was no possibility of recusal. We feared that non-consent would be seen as insulting to the judge," said Williams.
"So naturally I am frustrated that the Supreme Court has decided on the basis of that consent. They've simply not addressed the reason for the rule."
Williams said his legal team spoke with a number of Queen's Counsel before lodging the application.
"All were of the view that the issue was important, and should be raised. We are a small country. Unavoidably our senior law circles are small and close," said Williams.
"Our Supreme Court should lean over backwards to show that it is conscious of the risks to perceived integrity. I am disappointed that the Supreme Court has not addressed that point."
Williams also said his lawyers, led by Michael Reed, QC, asked for an oral hearing and an explanation from Justice Arnold about the sailing trip. This was declined.
"I think the denial of a public hearing, and the absence of explanation for disregarding the clear rule, should be of concern to lawyers generally. Justice must be seen to be done," said Williams.
Last week, three legal academics told the Herald that McKnight was put in an "awkward position" when Mills sought his approval.
Andrew Geddis, professor of law at the University of Otago, said he did not believe seeking approval between parties was the best way to handle potential conflicts of interest.
"If you're waiting on the judgment, do you really want to say, or imply to that judge, I don't trust you to make a fair decision if you go off on this holiday?" said Geddis.
"I don't think we should be handling these problems is by saying, 'if the other side agrees with it, there's no problem'. It's too simplistic."