Cairns v Modi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 26 March 2012 |
| Neutral Citation | [2012] EWHC 483 (QB) |
| Date | 26 March 2012 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10D00267 |
IN THE HIGH COURT OF JUSTICE
QUEEN S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Bean
Case No: HQ10D00267
Andrew Caldecott QC and Ian Helme (instructed by Colly er-Bristow) for the Claimant
Ronald Thwaites QC and Jonathan Price (instructed by Fladgate LLP) for the Defendant
Hearing dates: 5–9, 12,14 and 16 March 2012
The Claimant, who was born in 1970, is a well known New Zealand cricketer who won 62 Test caps and captained his country in 7 Test matches. When the shorter formats of the game are included he represented New Zealand on 267 occasions. He is one of only a handful of men who have reached the "all rounders' double" of 200 wickets and 3000 runs in international cricket. His last appearance for New Zealand in a Test match was in June 2004 and in a one day international in January 2006.
The Defendant was formerly the Chairman and Commissioner of the Indian Premier League (IPL) and Vice-President of the Board of Cricketing Control for India (BCCI). He was suspended from these positions in April 2010 and removed from them in September 2010. The IPL operates Twenty20 competitions in India which attract an enormous following and have changed the face of cricket. At the time of the events in question Mr Modi was a very powerful figure in world cricket. He is now resident in England.
In his closing submissions Mr Ronald Thwaites QC for the Defendant described the case as an example of libel tourism. The criticism is misguided. The Claimant went to school in England, as did his children, and he played county cricket in England for Nottinghamshire in 7 seasons during a period of 15 years. The Defendant has since mid-2010 been resident in England. A trial in India would have involved very long delays. No application was made to stay the proceedings on "forum shopping" grounds, and if it had been I consider that it would have failed. The case is properly before the court in England.
The ICL
The Indian Cricket League (ICL) was formed prior to the IPL and without the approval of the BCCI. It was not officially recognised by the International Cricket Council (ICC) nor by several national cricket boards including the BCCI. Players who took part risked losing official registration, and accordingly most of the international players involved had retired from their national sides.
The ICL organised three international tournaments (curiously referred to as "editions"); the first from 30 November to 16 December 2007, the second from 9 March to 6 April 2008, and the third from 10 October to 16 November 2008. These were Twenty20 games between sides which consisted partly of international players and partly of Indian ones. The Claimant was hired to be captain of the Chandigarh Lions in each of the three editions, and in their third edition he was also the coach. The ICL also held two domestic tournaments, not involving players from other countries, between the international editions.
On 5 January 2010 the Defendant published on his official personal page of the social networking service Twitter the following words:
"Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today."
On the same day a journalist from the online cricket magazine Cricinfo who had seen this Tweet asked the Defendant to confirm that the Claimant had been removed from the IPL auction list because of involvement in match-fixing. Mr Modi replied:
"We have removed him 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."
The same day Cricinfo published on its website an article entitled "There is no place in the IPL for Chris Cairns", in which the allegation was repeated.
On 8 January 2010, in response to a media enquiry, Mr Modi stated: "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."
Mr Cairns has sued Mr Modi for defamation in respect of the Tweet and the comment to Cricinfo. The defamatory meaning of the Tweet is obvious, namely that the Claimant had fixed cricket matches. The meaning of the statement to Cricinfo is not quite as clear because of the garbled reference to an "alleged allegation". I accept the submission on behalf of the Defendant that the meaning of the statement to Cricinfo is that there were "strong grounds to suspect" that the Claimant was guilty of match fixing.
A pre-trial hearing took place on 10 November 2010. The Defendant had applied to strike out the claim on the principles set out in Jameel v Dow Jones and Co [2005] QB 946, namely that in view of the limited number of Twitter followers in this country which the Defendant had in January 2010 the publication within the jurisdiction did not amount to a real and substantial tort. That application was withdrawn before the hearing. Instead the Defendant applied for the ambit of publication to be determined as a preliminary issue prior to a potential Jameel application. Tugendhat J rejected the I application to order a preliminary issue. He subsequently ordered that the case should be tried by a judge sitting alone. Neither of these orders has been the subject of an appeal.
My task is therefore to decide whether or not Mr Cairns was a match fixer; or, alternatively, whether at the material time there were strong grounds for suspicion that he had been a match fixer.
Match fixing in the strict sense is ensuring a particular outcome of the match. Spot fixing is more specific and easier to bring about: it may consist, for example, of arranging for a bowler to bowl a no ball at the start of a particular over. Sportsmen involved in match fixing or spot fixing are in league with bookmakers and their clients who have bet on the desired event occurring. Betting on sporting events is illegal in India (except where the sport concerned is horse racing) but it is widely believed that such betting remains widespread.
Spot fixing came before the English courts last year when three Pakistani Test cricketers and an agent were sentenced by Cooke J to terms of imprisonment for involvement in spot fixing. More recently a player in the Essex county side was sent to prison after pleading guilty to a similar offence.
Before me the parties did not make a distinction between match fixing and spot fixing, and neither shall I. Both are cheating. As Mr Andrew Caldecott QC for the Claimant put it, if Mr Cairns was a cheat, he loses his case.
At a directions hearing on 4 April 2010 Master Kay QC made an order permitting each party to call expert evidence on cricket, with the Defendant serving any such evidence by 31 July 2010 and the Claimant then having the opportunity to serve expert evidence in reply. In fact no cricketing expert evidence has been served. The Defendant's case that Mr Cairns was indeed a match fixer must therefore depend on evidence of statements made or instructions given by him indicating that he was corrupt or seeking to influence members of his team to act corruptly.
Captains of cricket teams have to make a large number of tactical decisions in the course of a match which may prove to be wrong. In the absence of expert evidence it is not open to the Defendant to argue, for example, that an instruction by the captain to a player to bowl yorkers aimed at the batsman's leg stump must have been given in an attempt at match fixing or even spot fixing. It does not require expert evidence for me to know — indeed the Claimant readily accepted in evidence — that there can be no legitimate reason for a captain in a Twenty20 match to instruct a bowler to bowl a noball or a wide. But this apart, almost every instruction is a matter of opinion.
I have set out the Claimant's distinguished cricket career. It is of course sadly well known, inside and outside the world of cricket, that distinction is not a guarantee of honesty. The South African cricket captain Hansie Cronje was just one recent example of a great sporting figure who turned out to have feet of clay.
The standard of proof
In Re D [2008] 1 WLR 1499 Lord Carswell approved observations of Richards LJ in R(N) v Mental Heath Review Tribunal (Northern Region) [2006] QB 468:
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, 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. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to proved to a high degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
Lord Carswell continued:
"In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below……[A] possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard...
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