Case Law: Cairns v Modi – Defendant found liable for Twitter comments – Gervase de Wilde

28 03 2012

Chris Cairns’ claim against Lalit Modi has been one of the most high profile libel cases of the past 12 months. The public roles of both parties, the nature of the allegations, the events in question taking place in the context of a controversial offshoot of a popular international sport, the defamatory comments being made on the relatively new medium of Twitter – all this played a part in ensuring that the spotlight was on the litigation throughout. The claim and its defence, however, turned on a single question: was the Claimant a cheat?

In a judgment given on Monday March 26 ([2012] EWHC 756 (QB)), Bean J decided that he was not. He found the Defendant liable, awarding damages of £90,000, and the additional remedy of an injunction. An Inforrm report on the conclusion of the trial (including most of the facts detailed below) can be found here.

Background

The Claimant, a New Zealander, had a successful career in cricket as both an international and a county player, captaining his country on seven occasions. He played as an all-rounder,  achieving 200 wickets and 3000 runs in international cricket. His international career over, he joined the ICL, a private ‘rebel’ league which operated for two seasons between 2007 and 2009 in India, consisting of Twenty20 tournaments between sides made up of a mixture of international and Indian players. The Claimant played as team captain of Chandigarh Lions in three ‘editions’ of the tournaments in 2007 and 2008, also acting as the coach in the third edition.

In early 2010 the Defendant, who was then chairman of the newly instituted Indian Premier League (‘IPL’),  commented on Twitter on the withdrawal of Cairns’s name from the initial list of players whose names were put forward for the IPL auction. He said that his removal was due to a “past record in match-fixing”.

He replied to an enquiry from a journalist working for the Cricinfo website about the statement that

“We have removed him from the list for alleged allegations [sic] as we have zero tolerance of this kind of stuff”,

and the site repeated the allegation in an article on the site the same day, entitled “There is no place in the IPL for Chris Cairns”.

The Defendant responded to a subsequent media enquiry by saying that

“We know what we are doing and at the end of the day he is not going to be allowed to play and that’s it. Let him sue us, then we will produce what we have to in court.”

The Claimant commenced proceedings in London in respect of the tweet and the comment to Cricinfo.

The Defendant pleaded justification, and in mid-2010, applied that an order for service out of the jurisdiction be set aside on the grounds, derived from Jameel (Youssef) v Dow Jones & Co Inc. [2005] QB 946,  that the Tweet did not constitute a real and substantial tort within the jurisdiction. That application was withdrawn, the Defendant instead applying for the extent of publication to be determined as a preliminary issue. Tugendhat J refused to make such a determination (Cairns v Modi [2010] EWHC 2859 (QB)).

Judgment

The Defendant relied on justification, asserting in his Defence that the Claimant had engaged in match-fixing. In relation to this, the Judge cited Lord Carswell’s approval in Re D [2008] 1 WLR 1499 of Richards LJ’s observations in R(N) v Mental Heath Review Tribunal (Northern Region) [2006] QB 468 on the flexible application of the civil standard of proof:

“the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.”

 Lord Carswell said of this that

“in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others”

The Judge considered how the evidence for the trial was obtained. He stated that some of the evidence on which the Defendant relied was hearsay, and referred to the provisions of the Civil Evidence Act 1995, on the weight to be attached to hearsay evidence in civil proceedings. He also referred to the way in which match-fixing was investigated by the ICL’s anti-corruption officer, Mr Howard Beer. Of the evidence gathered by Mr Beer in 2008, little was disclosed to the Claimant’s solicitors, though the Defendant’s then solicitors did have the chance to see it and take notes.

No witness statements served on the Claimant’s solicitors during 2011 contained direct evidence of match-fixing. In early 2012, the Defendant’s new solicitors served three witness statements from former Chandigarh Lions players, who then gave evidence at trial by video link from Delhi. The Defendant himself had made witness statements, and was present at the trial, but was not called to give evidence.

There was a focus on the Claimant’s finances; bank statements disclosed payments from a diamond trader, Vijay Dimon, to the Claimant’s Dubai bank account. While the Defendant suggested that these were payments for match-fixing, the Claimant gave evidence that they were made in respect of a part-time job he had taken with the diamond trader, who had become a friend. The Judge accepted this, and stated that, if he was a match-fixer, there was “no evidence” showing that he profited from it.

The Claimant’s contract contained terms which stated that he should not undertake any activity “prejudicial… to his health or cricketing form”,  and that, were he to become aware of an injury, he should notify the ICL of it. Between the second and third editions of the ICL, the Claimant became aware of an ankle injury which required an operation were he to continue his bowling career.  He nevertheless played for Nottinghamshire and undertook a 1000 km charity walk to raise funds for a charity established in memory of his sister, which aggravated the injury. Although he said that “everyone knew” about the injury, he had not informed the organisers of the ICL about it. The Judge found that “he was in clear breach of his contract”.

There were allegations that the match in which the Claimant was involved in on his return to the ICL, against the Mumbai Champs, was fixed. A great deal of evidence focused on a meeting between the Claimant and some ICL executives at the Shangri-La Hotel, held after two further matches. The Claimant’s and Mr Beer’s accounts of it differed considerably. The Judge broadly agreed with the Claimant’s version of events: rumours of match-fixing were mentioned, but the purpose of the meeting was to terminate his contract for the breach entailed by his having aggravated and failed to report his injury. In the wake of the Claimant’s dismissal, he exchanged friendly emails with the Chairman of the ICL, Mr Himanshu Mody.

The Judge assessed the evidence of match-fixing adduced by the Defendant. He was not impressed with that of Mr Beer, whose actions and statements were found to be partisan. The Judge did not accept the truth of, or attach weight to the statements of any of the players who had allegedly been approached by the Claimant for the purpose of match-fixing. By contrast, he felt that the Claimant was credible:

“Despite prolonged, searching and occasionally intrusive questioning about his sporting, financial and personal life he emerged essentially unscathed.”

He concluded as a result that the Defendant had

“singularly failed to provide any reliable evidence that Mr Cairns was involved in match fixing or spot fixing, or even that there were strong grounds for suspicion that he was.

It followed that his plea of justification failed, and that the Claimant was entitled to damages. In relation to the gravity of the libel, he held that to allege that a professional cricketer is a match fixer “is… as serious an allegation as anyone could make against a professional sportsman”.

A series of factors were taken into account in the assessment, including: the extent of publication – although it was limited, that did not mean that damages should be reduced to trivial amounts; vindication in the judgment, asserted by Laws LJ in Purnell v BusinessF1 Magazine ([2008] 1 WLR 1) to be “capable of providing some vindication” but with an effect “most likely to be marginal”; the Claimant’s reputation – the Judge said it would be made on the basis that he was a professional cricketer of good character and reputation; and the way the defence was run at trial, particularly “the sustained and aggressive assertion of the plea of justification”, which increased the damages recoverable by 20%. The starting point for damages was £75,000; with aggravation taken into account, damages of £90,000 were awarded.

Comment

In the 2010 application, Tugendhat J considered the evidence on the number of the Defendant’s Twitter followers. The Defendant’s expert asserted no more than 35 of them could have seen the Tweet, the Claimant’s figure was 100. The Judge refused to try the number of followers as a preliminary issue of fact. In theory, the door was still open for the Defendant to submit at trial that, in line with Jameel,  there had not been a real and substantial tort within the jurisdiction. The parties settled on the figure of 65 Twitter readers, and that he did not do so indicates to what extent it is now accepted that comments made on Twitter are a publication for the purposes of English defamation law, even where the number of readers is limited.

Connected to the Defendant’s use of Twitter at a time when he was based in India is the question of jurisdiction and ‘libel tourism’. The Defendant’s submissions on this point were described as “misguided” by the judge, given the Claimant’s connection with England (he and his children went to school here, and he played for Nottinghamshire for 7 seasons), and the fact that the Defendant now lives here. Criticisms on the grounds of ‘forum shopping’ did not have any foundation.

The aggravation of the injury to the Claimant’s reputation resulted in a higher award of damages, in line with the statement in Rantzen v Mirror Group Newspapers [1994] QB 670 that the use of the defence can increase injury and anxiety. The Defendant went in with all guns blazing, going beyond mere corruption to allege a “diabolical scheme” which took advantage of players who were “like children in an orphans’ home”.  This was a high risk strategy to adopt in light of its impact on the eventual award.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.


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2 responses

2 04 2012
Law and Media Round Up – 2 April 2012 « Inforrm's Blog

[...] damages in a libel action brought by cricketer Chris Cairns, over tweets published in early 2010. As Gervase de Wilde reported for Inforrm, it has been one of the most high profile libel cases of the past 12 months. In a judgment given on [...]

5 04 2012
Owen

Yes, but is Pietersen’s switch-hit legal?

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