Modi v Clarke; IMG v Clarke

Reference: [2011] EWHC 1324 (QB)

Court: Queen's Bench Division

Judge: Tugendhat J

Date of judgment: 24 May 2011

Summary: Defamation - Libel - Costs - Defamation Proceedings Costs Management Scheme - Practice Direction 51D - Whether it is necessary or appropriate under the Scheme to refer a Master or Judge to settlement offers

Appearances: Desmond Browne CBE KC - Leading Counsel (Claimant)  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, the Judge addressed issues relating to the Defamation Proceedings Costs Management Scheme set out in CPR PD51D.


(1) What is the extent of the task the Court is required to engage in when deciding what is meant by ‘proportionate’ under the Scheme?

(2) Whether that task required the court to consider without prejudice save as to costs correspondence including part 36 offers


The Scheme did not require the court when reviewing budgets which are not agreed to consider evidence and documents to arrive at a judgment as to the value of the claim and the reputational issues at stake. Nor was the court required to form a view as to whether one side or the other is being unreasonable in pursuing the claim in spite of offers to settle by the other side. For that reason it was not necessary when considering proportionality to consider offers of settlement.


This is the first judgment which provides some guidance, albeit limited, on how to approach the Costs Management Scheme.