The trial of cricketer Chris Cairns’ libel claim against Lalit Modi came to an end at the High Court on Friday March 16. Both parties were in Court 15 as closing submissions were made by Andrew Caldecott QC for the Claimant. It was the eighth day of a hearing in front of Bean J, revolving around the Indian businessman and IPL founder’s 2010 tweet about the Claimant’s having departed the Indian Cricket League (‘ICL’) as a result of his alleged involvement in match-fixing. A blow by blow account of the trial can be found on ESPN’s Cricinfo.

With the Defendant (represented by Ronald Thwaites QC) relying on justification, counsel for both sides spent the last two days assessing the extensive evidence amassed surrounding the circumstances of the Claimant’s departure from the league, and the details of allegations made by former team-mates and officials of match-fixing. This ranged from match DVDs to testimony via video link from India, an anti-corruption official’s notes, and transcripts of statements in Hindi.  The Defendant did not give evidence.

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. His international career over, he joined the ICL, a private ‘rebel’ league which operated for two seasons between 2007 and 2009 in India, and played as team captain of Chandigarh Lions. In 2008 he was suspended from his position, the termination of his contract reported at the time as being for failing to disclose an ankle injury which he had when he arrived at the tournament, and he left India.

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”, and the allegation was repeated on the popular Cricinfo website.

The Claimant commenced proceedings in London against both the Defendant and Cricinfo. Cricinfo settled with the Claimant for an undisclosed sum. 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. Tugendhat J gave a decision on that application (Cairns v Modi [2010] EWHC 2859 (QB)), holding that the figure of between 35 and 100 Twitter readers agreed between the experts did not prevent there being a real and substantial tort.

The Defendant’s case

The plea of justification made by the Defendant was based around evidence adduced which, it was said, showed that the Claimant was guilty of match-fixing along with a senior Indian player who was suspended from the team at the same time, Dinesh Mongia. Rather than breaching his contract in failing to disclose a pre-existing ankle injury, the Defendant said that the Claimant did so because the agreement placed him under an obligation not to engage in, or induce others to engage in, corrupt practices.

The Defendant focused on evidence given over video-link by three Indian players who were part of the Lions team with the Claimant, Gaurav Gupta, Karanveer Singh and Rajesh Sharma. He said that it was this which “pins the guilt onto the Claimant’s chest”, and described the match-fixing as a “diabolical scheme” which took advantage of the young players who were “like children in an orphans’ home”.

The events of the night on which the Claimant was confronted by ICL board members at a hotel at which the team was staying were also scrutinised. The Defendant suggested that, after the Indian players allegedly involved were spoken to individually, the Claimant was confronted about match-fixing, and that his behaviour in the aftermath was consistent with his guilt.

The Defendant also relied on evidence of payments made into the Claimant’s Dubai bank account by the company Vijay Dimond, around the time of the alleged match-fixing. These cash payments alone, were, according to the Defendant, enough evidence of match-fixing because they were “suspicious”.

The Defendant also referred to the issue of ‘libel tourism’, pointing to the tangled backgrounds of the parties, who are associated variously with New Zealand and Australia, India, and London. He asserted that

“one of the potential drawbacks of libel tourism is that the party defending the case may find it difficult or impossible to bring their best evidence before the court”.

The diverse backgrounds of those involved had, he said, increased the difficulty of getting evidence to the court in London.

The Claimant’s case

The Claimant asserted that he was a “scapegoat of convenience” for wider corrupt activity in the ICL, that the allegations were orchestrated after his departure from India, and that the evidence adduced at the trial did not prove that he had fixed the outcome of matches. The breach of contract for which he was suspended from the league was said to be his failure to notify the authorities of an injury, which he had potentially aggravated by undertaking a sponsored walk before it began. Particular emphasis was placed in the Claimant’s submissions on the comments of Goff LJ (as he was then) in The Ocean Frost (1984 WL 281667) on the judicial approach to conflicting evidence of the existence of fraud, to the effect that in such cases, it was essential

“when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.”

The evidence of the Indian players on which the Defendant relied was said to be inconsistent. The Claimant focused on the chronological sequence in which the allegations from the players emerged, and on the evidence of the ICL’s own anti-corruption officer, Howard Beer. Beer had stated in cross-examination that “there was obviously an agenda” in relation to allegations of corruption.

The sequence of events on the night on which the Claimant was suspended was, according to him, confused. Procedural irregularities were present in the investigation and the meeting at which the allegations were put to the Claimant was “informal”, taking place late at night with alcohol being drunk.  Following his denial of the match-fixing allegations, the problem raised on the Claimant’s contract which resulted in his departure was the pre-existing injury.

The cash payments made to the Claimant were said to be for endorsement work for Vijay Dimond, and were made in relation to an oral agreement between the Claimant and the company. Although there was no writing to provide evidence of it, the relationship was conducted on the basis of trust, and was  of the kind that is often found in business. The Claimant had given a newspaper interview setting out his dealings with the company.

On the subject of libel tourism, the Claimant asserted a real connection to this jurisdiction, deriving from his own and his children’s education, and his playing career. He also pointed to a failure to make any subsequent Jameel application in relation to jurisdiction, after the earlier unsuccessful attempt to get the order for service out set aside. The evidence adduced had not, according to the Claimant, been hampered by geographical boundaries.

Present Position

Oral submissions have now concluded.  The parties are to give written submissions on damages to the Judge. The situation is complicated by the fact that, if liability is found, the damage done by the republication of the allegations on Cricinfo will have to be taken into account.  The Claimant settled with Cricinfo for a reported sum of £15,000 which will have to be taken into account under section 12 of the Defamation Act 1952 when making an award of damages against Mr Modi,

The judgment may be available very soon.  Bean J said he hoped to give a decision before the end of the month.

The hot topics of libel tourism, and of the nature and extent of publication on Twitter, were both mentioned in the closing submissions. The Judge’s views of these will be of interest to readers, but the case turns on the whether the Claimant was involved in the match-fixing which was undoubtedly taking place in the murky world of the ICL, rather than whether London was the right place for the action, or whether the Defendant’s tweet was a substantial publication of his allegations. In his assessment of the case, arguments about the law in those areas will almost certainly take a back seat to those about corruption and cricket.

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