Reference:  EWCA Civ 937
Court: Court of Appeal
Judge: Master of the Rolls, Thomas and Moses LLJ
Date of judgment: 29 Jul 2011
Summary: Appeal - Permission to Appeal - Defamation - Libel - Meaning - Whether the Judge was correct to rule that the words complained of were incapable of bearing any meaning defamatory of either Claimant
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Appearances: David Sherborne (Claimant) Adam Speker KC (Defendant)
Instructing Solicitors: Carter Ruck for Mr Modi; Schillings for IMG; Rosenblatt for Mr Clarke
Mr Modi is the former Chairman and Commissioner of the Indian Premier League (‘IPL’) and IMG is a sports, media and entertainment company. Mr Clarke is the Chairman of the England and Wales Cricket Board (‘ECB’).
On 2 May 2010 Mr Clarke sent an email to Mr Manohar, the President of the Board of Control for Cricket in India (‘BCCI’) copied to Mr Srinivasan, the secretary of the BCCI and Mr Collier, the chief executive of the ECB. Mr Clarke’s email was a covering note forwarding another email written by Mr Stewart Regan of Yorkshire County Cricket Club which relayed information about a meeting held in Delhi on 31 March 2010 attended by Mr Regan, Mr Modi, representatives from IMG and two individuals from English county cricket clubs.
In separate actions, Mr Modi and IMG sued Mr Clarke for libel in respect of what he said in the email about Mr Modi and IMG. IMG also sued, by amendment, in respect of a letter written by Mr Clarke to Mr Manohar which was identical to the email save that certain words were omitted.
In his Defence Mr Clarke did not admit the words were defamatory and in addition raised affirmative defences of qualified privilege, honest opinion and justification. In their Replies, Mr Modi and IMG alleged malice.
At the Pre-Trial Review, Mr Clarke applied for rulings on whether the words complained of were capable of bearing any meaning defamatory of the Claimants. In a reserved judgment bearing the neutral citation  EWHC 1324 (QB) Tugendhat J ruled that the words were not capable of bearing any meanings defamatory of the Claimant. The Claimants appealed. Limited permisison to appeal was granted by Sir Richard Buxton.The hearing before the Court of Appeal proceeded as both an appeal and a renewed application for permission to appeal.
1. Whether the Judge was correct to have ruled that the words complained of were not capable of bearing any meaning defamatory of Mr Modi.
2. Whether the Judge was correct to have ruled that the words complained of were not capable of bearing any meaning defamatory of IMG.
1. allowing the appeal on a limited basis. It was not defamatory to say of someone that he wishes to destroy the structure of a sport or had gone behind the backs of sports administrators and entered into ngeotiations or that an action was being brought against him for inducing breach of contract. However, given Mr Modi’s position within the sport, the words complained of were capable of being defamatory but only insofar as they could mean that he was acting dishonourably as he was breaking the rules to which he had subscribed and that he had by his actions undermined those rules to which he was party whilst professing to be bound by them and he had engaged in secret meetings and was therefore acting dishonourably.
2. allowing the appeal on a limited basis. The position was less straightforward for IMG but the words complained of were again capable of bearing a defamatory meaning only if they were capable of meaning that IMG had been acting dishonourably and disloyally and not simply in a robust competitive manner.
Although the CA overturned Tugendhat J it did so, as Thomas LJ says at , on a limited basis.
Thomas LJ was robust in ruling out that a number of the accusations were not capable of being defamatory. This judgment, together with Tugendhat J’ s at first instance, might be seen as further indication, following Thornton v Telegraph, of a tougher approach by the courts of what words can be said to be capable of being defamatory and a greater willingness to grapple with that issue rather than leaving the question to the jury.