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Cairns v Modi [2012] EWHC 756 (QB)

Case date: 26/03/2012

Court: High Court

Area/s of law: Defamation

Barrister/s: Andrew Caldecott QC, Ian Helme

Facts

The Claimant is a New Zealand international cricketer who captained his country on seven occasions and represented his country in 62 Test matches during a long and successful career. The Claimant’s last appearance for New Zealand was in 2006.

The Defendant was formerly the Chairman and Commissioner of the Indian Premier League (the “IPL”) and Vice-President of the Board of Cricketing Control for India.

The Claimant had been hired to captain the Chandigarh Lions in three Indian Cricket League Twenty20 tournaments in 2007 and 2008. The Indian Cricket League was not officially recognised by the International Cricket Council, unlike the IPL.

On 5 January 2010, the Defendant sent a tweet to his followers stating that: “Chris Cairns removed from the IPL auction list due to his past record of match fixing. This was done by the Governing Council today.”

On the same day, the Defendant told a journalist from the online cricket magazine Cricinfo who had seen the tweet that: “we have removed [the Claimant] from the list for alleged allegations [sic] as we have zero tolerance of this kind of stuff. The Governing Council has decided against keeping him on the list.” This allegation was repeated in an article which Cricinfo then published on their website.
The Claimant sued the Defendant and Cricinfo for libel. Cricinfo settled with the Claimant, paying him £7,000 damages and a further sum for costs. The Defendant asserted that the allegations were true

Decision

The judge found that the Defendant had “singularly failed to provide any reliable evidence that [the Claimant] was involved in match fixing or spot fixing, or even that there were strong grounds for suspicion that he was.” The plea of justification consequently failed and the Claimant was entitled to damages, assessed at £90,000, and an injunction.

Reasoning

The judge found that the tweet meant that the Claimant had fixed cricket matches. The Cricinfo article meant that there were strong grounds to suspect that the Claimant was guilty of match fixing.

The judge rejected much of the evidence given in support of the Defendant’s case or placed little weight on it. Three of the witnesses could not be believed, the hearsay evidence of two others was inconsistent and unreliable, and the remaining evidence fell well short of sustaining the Defendant’s case. [118

In assessing damages, it was obvious that an allegation that a professional cricketer was a match fixer went to the core attributes of his personality and, if true, entirely destroyed his reputation for integrity. Such allegations were “as serious an allegation as anyone could make against a professional sportsman.” [121]

The Defendant had a limited number of twitter followers in England & Wales. The experts disagreed as to the extent of publication within the jurisdiction, but the parties agreed that the court should adopt a readership of 65, half way between the two experts’ calculations. A similar process led to an assumption of a readership of 1000 in respect of the Cricinfo article. Although the readership was limited, that did not mean that damages should be reduced to trivial amounts, as it was precisely because it was impossible to “track the scandal, to know what quarters the poison may reach…” that damages in libel were at large. Indeed, in the age of the internet, the poison tended to spread far more rapidly - Broome v Cassell [1972] AC 1027 applied. [122] – [123

Damages were to be assessed on the basis that the Claimant was a professional cricketer of good character and reputation. Accordingly, the starting point in damages would be £75,000. However, having regard to “the sustained and aggressive assertion of the pleading in justification at the trial”, this amount was increased by approximately 20%, leading to a total damages award to the Claimant of £90,000.

The judge added that the claim was not an example of libel tourism. The Claimant had substantial connections with England, having been educated here, and having played cricket for Nottinghamshire over a period of fifteen years. The Defendant had also been resident in England since mid-2010. Any application to stay the proceedings for forum shopping would have been dismissed and criticism of the claim on this basis was misguided. [3]

Comment

The first libel trial arising out of global social networking phenomenon twitter, this judgment demonstrates the power of 140 characters (or fewer) to significantly harm an individual’s reputation. Where there is a proper connection with this jurisdiction and a reasonable readership of the defamatory publication within it, English libel law can legitimately and properly be used to seek redress by a claimant who has suffered as a result of defamatory statements made on international social networking sites. Although the exact extent of publication through such media may be difficult to ascertain, nevertheless longstanding English libel authorities are still apt to protect a claimant from the rapid spread of “poison” which may result.

Andrew Caldecott QC and Ian Helme, instructed by Collyer Bristow, appeared for the Claimant.

Jonathan Scherbel-Ball

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