On Wednesday 10November 2010, judgment was handed down in the case of Cairns v Modi [2010] EWHC 2859 (QB). It is an interesting and topical decision since it deals with a claim brought by cricketer Chris Cairns, who is based abroad, against Lalit Modi, based in India, in respect of publications including allegations of match fixing on a cricket website Cricinfo owned by ESPN and on the defendant’s Twitter site.
Twitter is based in the US but has subscribers around the world and each subscriber will have a number of followers. (e.g. Lily Allen has nearly 2,500,000 followers. Stephen Fry has just under 2,000,000 followers).
Cairns sought and obtained permission to serve out of the jurisdiction on Modi in India and then subsequently obtained an order for substituted service on Modi’s English solicitors. Modi initially sought to set aside these orders and stay the proceedings on the grounds that India was the most convenient forum ( forum non conveniens challenge) and that in respect of the offending Tweet, that the claim was an abuse of process since no substantial tort had been committed within this jurisdiction, following the decision in Jameel (Youssef) v Dow Jones & Co Inc. [2005] QB 946.
There have been a number of posts about the Jameel jurisdiction to strike out/stay and a number of recent decisions Ronaldo v Telegraph [2010] EWHC 2710 (QB) and Mardas v v New York Times Co [2009] EMLR 8.
After issuing the application to set aside, Modi subsequently abandoned the forum coveniens challenge but maintained the no substantial tort challenge on the grounds that the Claimant had failed to establish a sufficient number of readers of the Tweet in this jurisdiction. Interestingly Modi issued a fresh application for a direction for the hearing of a preliminary issue of the extent of publication since this would go to 2 issues; whether there was a substantial tort within the jurisdiction and the extent of damage.
Expert evidence had been filed by the parties about the estimated number of followers and/or readers of Mr Modi’s Twitter account within the jurisdiction. The figures ranged from 35 readers to 100 readers.
Tugendhat J however dismissed both applications issued by Modi with the effect that the proceedings will now continue to trial unless the matter is settled. He held :
“I prefer, and accept, the submissions of Mr Caldecott. It is true that the Claimant’s case on publication of the Tweet within the jurisdiction has been revised down. But I express no views as to it being speculative. It would not be appropriate for me to express a view to that effect now. Nor do I accept that if the Defendant’s evidence on publication, as it now stands, were accepted by the court, then the claim in respect of the Tweet would be liable to be struck out. That is not a matter before me now. There is more to abuse of process than the number of publishees.”
I am not prepared to assume that the experts would reach no further agreement between them if they met in what is now the usual way under CPR 35. But even if they did not, I doubt if the claimant would require the difference between them to be determined by a trial on oral evidence. A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publications to a similar effect being made in the future. But that is subject to there being be a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.
I am also concerned at the idea of a trial of an issue of fact as part of (or a preliminary to) an application to strike out for abuse of process. The jurisdiction recognised in Jameel has proved very useful. It has been applied in a number of different circumstances in various judgments in this court. But it must not be seen as an additional hurdle which claimants must overcome, increasing the complexity and cost of litigation, instead of reducing it. Even if I had taken the view that the issue of publication would very probably have to be decided in any trial of the action, I would still have been reluctant to order that it be tried now.
It appears theoretically still open to Modi to argue that no substantial tort has taken place in the jurisdiction but the matter must be determined at a full trial.
The decision may be seen as a blow to campaigners against so-called libel tourism. The case also makes clear that even Tweets can give rise to libel claims. Tweets can also give rise to criminal liability. Paul Chambers yesterday lost his appeal in the “Twitter joke trial” and it was reported that a Conservative Councillor was arrested over a Tweet. It is a clearly a mode of communication which must be used with care.
Tweets have a potentially huge audience. You cannot simplify it as did the defendants by looking at the number of direct followers. These were two high celebrity cricketers playing a sport that is high profile talking about contentious issues such as match fixing.