Full case report
Cairns v Modi No 2
Reference  EWHC 756 (QB)
Judge Bean J
Date of Judgment 27 Mar 2012
Defamation – justification – guilt – reasonable grounds to suspect – aggravated damages
D posted on his twitter page that C had been removed from the Indian Premier League (‘IPL’) auction list because of match-fixing in earlier cricket matches. The online cricket magazine cricinfo picked up the tweet and asked D for confirmation. The journalist was told that the IPL governing council had confirmed the decision. C sued for libel in relation to the tweet and the publication to cricinfo. D applied to strike out the claim as not amounting to a real and substantial tort in the UK but withdrew the application. At trial D relied upon strong grounds to suspect that C had engaged in match-fixing or spot-fixing and was a cheat. D relied on hearsay evidence in the form of some player transcripts of interviews taken in India alleging match fixing and on 3 statements from players who gave evidence via live link. No evidence from a cricket expert witness was admitted.
Whether the plea of justification was made out.
The plea of justification failed:
(1) Evidence of payments to C in Dubai were the result of new employment. C was not dismissed for match-fixing after a meeting at the Shangri-La hotel, a version of events which was not consistent with a discussion had in the aftermath between C and a UK lawyer and as to which only one witness of 5 potential ones gave limited evidence. Later emails from the team chairman were not consistent with C having been dismissed for match-fixing rather than not revealing the extent of an injury. Evidence from IPL players alleging C had been involved in match-fixing was unreliable.
(2) C was entitled to damages reflecting that an allegation of match-fixing went to the core attributes of a sporting reputation. The Judge accepted that the ambit of publication was 65 twitter followers and 1000 readers of cricinfo (who had already paid C £7000 compensation). Mitigating evidence of bad character as relevant to damages was not accepted. The aggressive, highly-pitched presentation of the justification defence, presumably on instructions from D, aggravated damages by 20% to £90,000.
A substantial award of damages of £90,000 in relation to a tweet to approximately 65 “followers” in the jurisdiction and causing a republication in a niche cricket infosite, albeit in relation to serious allegations. The case also includes some useful discussion on the factors that aggravate damages. It appears from the decision that the courts may take the approach that publications by well known individuals via social media, a format designed to inculcate celebrity and influence, are quite different than ephemeral “saloon bar” banter in anonymous web forums. Those who may have expected argument on whether tweets to followers and republications on niche interest websites are protected by qualified privilege will need to wait for future cases.
Collyer Bristow for C, Fladgate LLP for D
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