Cricket: Cairns’ £90,000 Damages out of proportion?… NOT OUT: Cairns v Modi [2012] EWHC 483 (QB)

The writer has barely coped with the mental devastation heaped on his football team in last month’s AFL Grand Final, but alas it is now but a distant suppressed memory  ….. and its cricket season!

The plaintiff’s reaction to the Court of Appeal’s decision

Early in the year, Chris Cairns, a fine butcher of a batsman from New Zealand, brought a libel case in the UK against Lalit Modi, the former Chairman and Commissioner of the Indian Premier League and Vice-President of the Board of Cricketing Control for India (BCCI), possibly one of the most powerful sporting organisations in the world.

At the time in 2010,Cairns was playing in the T20 Indian Cricket League. For those unaware how cricket works, in the last five years there has been a sudden and, to stodgy cricketing traditionalists such as myself, very galling rise in the popularity of twenty-over cricket.  It is a shortened, hyped up version of the game with flashing lights, dancing tigers and designed for the new generation of supporter who has the attention span of a yellow traffic light.

I digress.

On 6 January 2010, Modi published this Tweet:

“Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.”

That very day, Modi was contacted by the major cricketing website, Cricinfo, seeking confirmation of the message. He responded with this:

 “We have removed him from the list for alleged allegations as we have zero tolerance for this kind of stuff. The Governing Council has decided against keeping him on the list.”

Thems are fighting words.

So Cairns sued Modi and Cricinfo. He settled early with Cricinfo, but Modi wouldn’t apologise or pay anything and took Cairns all the way to a trial, where he ran the defence of truth. Modi did not himself give evidence and his witnesses were not accepted. At the end of a hard fought trial, Cairns was awarded £90,000 damages. This included £15,000 for aggravated damages, as a result of the conduct of Modi’s former Counsel at the trial. Under Modi’s instructions, serious allegations had been put to Cairns under cross-examination and were also made in the closing.

Modi, not one used to losing, sought permission to appeal the judgment on liability, and that was refused on 28 June. The only issue for the Court of Appeal then, was damages.

In assessing the verdict, the Law Lords considered the principles of damages and the need for proportionality. In doing so, they referred to the recognition of a “ceiling” figure corresponding to the maximum level of damages for pain and suffering and loss of amenity in personal injury cases, £275,000.

Their Honours noted that the damages awarded to Cairns had to be enough for him to point to the verdict and convince a by-stander that the charge was baseless. The by-stander would not be expected to read the judgment as a whole, but would simply want to know: “How much did he get?”

“In any event it cannot be right in principle for a defendant to embark on a wholesale attack on the character of a claimant in a libel action heard by a judge without having to face the consequences of the actual and potential damage done to the victim both in the forensic process and as a result of further publicity.” (see [40])

What must have further counted against Modi was the very fact that he had sought permission to appeal on liability. By doing this, he claimed that the judgment was wrong. Possibly, this created further hurt to Cairns, so good luck to Modi in arguing that his own conduct in the trial did not exacerbate Cairns’ hurt.

In conclusion: the third umpire’s decision was that the judgment was entirely proportionate. Appeal dismissed.

Let the cricket season begin…