Lalit Modi v International Management Group (Uk) Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Moses,Master of the Rolls |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWCA Civ 937 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/1382, A2/20111383, A2/2011/1382(Z), A2/2011/1383(Z) |
| Date | 29 July 2011 |
[2011] EWCA Civ 937
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Tugendhat
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Thomas
and
Lord Justice Moses
Case No: A2/2011/1382, A2/20111383, A2/2011/1382(Z), A2/2011/1383(Z)
and
Hugh Tomlinson QC and Sara Mansoori (instructed by Carter-Ruck) for the First Appellant
David Sherborne (instructed by Schillings) for the Second Appellant
James Price QC and Adam Speker (instructed by Rosenblatt) for the Respondent
Hearing date: 21 June 2011
The background
The first appellant, Mr Lalit Modi, is an Indian businessman who claims he was responsible for setting up in 2008 the Indian Premier League which has operated the successful and profitable Twenty20 cricket league in India. The league has 10 teams consisting of players from various different countries competing against one another in the league.
On 31 March 2010 Mr Modi and two executives of the second appellants, International Management Group (UK) Limited (IMG), met in Delhi with three persons involved in English and Welsh county cricket, including Mr Stewart Regan, the Chief Executive of Yorkshire County Cricket Club. IMG's business includes commercial representation of international sports governing bodies; the Board of Control for Cricket in India was one of its clients.
It is evident from the report of the meeting prepared by Mr Regan that there was a discussion about whether a second franchise for Twenty20 cricket league could be established in the northern hemisphere. The proposal appears to have involved establishing 10 new English franchises, with the 10 existing Indian franchise owners being offered the first right to buy the new English franchises.
A copy of a report of the meeting was sent by e-mail on 31 March 2010 to a number of others involved in English county cricket. Sometime thereafter, on 2 May 2010, Mr Regan sent a copy of his e-mail containing a copy of the report of the meeting on 31 March 2010 to Mr Giles Clarke, the defendant to the action, in the form of an e-mail which Mr Regan had sent to several others involved in English and Welsh county cricket. Mr Clarke is Chairman of the England and Wales Cricket Board, the national governing body for cricket in England and Wales; he is also a director of the International Cricket Council, the international governing body of world cricket, and ICC Development International, the commercial arm of the International Cricket Council.
On Sunday 2 May 2010 Mr Clarke sent an e-mail to Mr Shashank Manohar, the President of the Board of Control for Cricket in India. At the time Mr Modi was a Vice-President of the Board of Control for Cricket in India and an alternate director on the Board of the International Cricket Council, though he has subsequently been removed from those positions. The e-mail was in the following terms:
"Dear Shashank
I attach an email detailing minutes of a meeting called by Mr Modi, held with IMG and 3 English Test grounds. A whistleblower provided this.
The minutes are self-explanatory.
It sets out a plan to destroy world cricket's structure and especially that in England, and create a new rebel league.
The plan seeks to remove all Boards' powers, and involve players in a fashion unheard of.
I am certain BCCI [the Board of Control for Cricket in India] had no knowledge of this meeting nor of these proposals, but Mr Modi clearly represents that [Indian Premier League] and its Governing Council are offering financial inducements to English counties.
*We have already commenced legal action with regard to the English officials and counties involved.
*We also wish to take action against IMG for promoting this along with Mr Modi and to seek their banning from world cricket.
*ICC [International Cricket Council] Regulations are very clear concerning contacts of this nature which are forbidden.
Your help and support in eradicating this threat and dealing with the miscreants will be greatly appreciated. The ECB [England and Wales Cricket Board] believes under your leadership the BCCI/ECB relationship has become very strong.
I have tried to call you to brief you.
I am in West Indies and communications are very varied.
With best personal wishes,
Giles."
The e-mail attached was from Stewart Regan which appended his report of the meeting with Mr Modi and IMG. Some days later, on 8 May 2010, Mr Clarke wrote a letter (backdated to 2 May 2010) to Mr Shashank Manohar in the same terms as the e-mail, but omitting the paragraphs against which there is an asterisk. The meanings of the acronyms in the e-mail did not appear in the e-mail as sent.
The e-mail, together with the e-mail from Mr Regan, was copied to Mr Srinivasan, the Secretary of the Board of Control for Cricket in India and Mr Collier, the Chief Executive of the England and Wales Cricket Board. It was then published in a number of newspapers in India. There was much comment in the media on it in May 2010.
The proceedings
On 14 May 2010 IMG brought proceedings against Mr Clarke in respect of the e-mail and subsequently the letter; Mr Modi commenced proceedings on 16 June 2010 in respect of the e-mail. They claimed that the e-mail and letter were defamatory. A trial lasting 4 weeks was fixed for 4 July 2011, but has been adjourned.
On 5 May 2011, there was a pre-trial review before Tugendhat J. In the course of reviewing the parties' cost budgets, Tugendhat J commented to counsel that he had looked in vain for provisions for a hearing on whether the words complained of were capable of bearing a defamatory meaning. He was told by counsel for Mr Clarke that there was not such provision, probably because it was accepted on all sides that the words complained of were capable of bearing the meaning pleaded and of being defamatory. As a result of further exchanges, on 9 May 2009 Mr Clarke issued an application in each of the proceedings for a ruling that the words complained of were not capable of bearing any meaning defamatory of either of the claimants.
The hearing on that application took place on 13 May 2011. In a reserved judgment handed down on 24 May 2011, Tugendhat J held that the words were not capable of bearing any meaning defamatory of either of the claimants. Although the judge refused leave to appeal, Sir Richard Buxton gave permission to appeal on one of the grounds to which I will refer.
The applicable law
There was no dispute as to the applicable law. Although there are a number of well-known definitions of the legal meaning of the word "defamatory", the case proceeded before the judge on the basis of the definition used by Sir Thomas Bingham, MR in Skuse v Granada Television Limited [1996] EMLR 278 at 286 where he said:
"A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally."
In deciding what meaning the words complained of were capable of bearing, it was again common ground that the court must have in mind the guidance given in Skuse v Granada Television, summarised most recently by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:
"The legal principles relevant to meaning…may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…"…. (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense."
It was also accepted that there is a distinction between "people generally" and a section of people. The distinction is set out in a number of authorities but the one relied on before the judge was that of Greer LJ in Tolley v Fry [1930] 1 KB 467 at 479 where he said:
"Words are not defamatory, however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that would disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man is not actionable within the law of defamation."
There are a number of cases which illustrate by their particular application this distinction. These include Myroft v Sleight (1921) 90 LJKB 888, Clay v Roberts (1863) 8 LT 397 and Hughes v Architects' Registration Council of the UK [1957] 2 QB 550.
The judge referred to other cases...
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