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Brief Counsel

Cairns delivers a blinder - but at what cost?

28 March 2012

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​The stain on the reputation of one of New Zealand’s greatest cricketers has been washed clean by the London High Court. 

Chris Cairns won, but may still be out of pocket.  This Brief Counsel looks at whether Cairns may have (once again) played a brilliant hand in a losing cause.

The ICL and match-fixing

Cairns participated in the ill-fated Indian Cricket League (ICL) in the twilight of his career.  His departure from the ICL was for injury reasons, but Lalit Modi “tweeted” that Cairns had been removed for match-fixing.  The “tweet” was read by around 65 people in the United Kingdom, where Modi was residing.  Cairns sued Modi in England for defamation.  After an arduous cross-examination and trial, Cairns won damages of £90,000.

The result analysed

The decision of Mr Justice Bean is notable for a number of reasons.

  • It confirms, as expected, that publication of defamatory material about an identifiable person by Twitter can result in liability for defamation.  Twitter is simply a new medium through which defamation may occur.  The case should increase public awareness that social media are not immune from defamation law.
  • It demonstrates that in defamation actions where the integrity of an individual has received a very strong attack, strong evidence will be required to demonstrate the truth of the defamatory allegation.  Modi’s failure to give evidence himself left him reliant on others and the Judge made very robust observations about the credibility of those other witnesses – a salient reminder of the dangers of relying, in Court, on a witness’s “say-so”.
  • The issue of proceedings in the United Kingdom has prompted claims of “libel shopping”.  Although this claim was not formally argued, the Judge dismissed it, referring to Cairns’ long association with the United Kingdom through his schooling and county cricket career.  Modi’s residence in London must also have been a strong factor in Cairns’ decision, as it is always simpler to sue a defendant in his or her place of residence.  Cairns needed to sue in a jurisdiction where he had a reputation and where the “Tweet” was published, which, in the ICL circumstances, would have limited his options to England, India and New Zealand.  The Judge acknowledged that there would have been long delays had the case been taken in India.
  • What is most notable about the judgment though is that Cairns was obviously a very impressive witness under cross-examination which the Judge found unjustifiably intrusive and personal.  The Judge was deferential to Cairns and his career.  United Kingdom judges have often written positively, even effusively, about the game of cricket.  It may be that the UK is simply the best jurisdiction for cricketers, rather than libel generally.
  • The damages awarded to Cairns are reasonable, and include a sum for aggravation caused by Modi, but are modest compared to the legal costs of a hard-fought defamation case.  It is likely that the costs award Cairns receives will be many times the amount of the damages he has won.  
  • In New Zealand Cairns could have been even more out of pocket.  New Zealand defamation awards are frequently slender, and the regime for awarding legal costs is tighter.  There are reports Cairns may receive over £400,000 in legal costs, which is substantially more than the equivalent for a week-long trial in New Zealand.  London lawyers are expensive though, so whether the net outcome would be better there or here remains a moot point.

Chapman Tripp comment

Alongside Kane Williamson’s match-saving century against South Africa, it is uplifting to have a positive cricket story for once. 

And yet all the Cairns case really shows is that defamation is a highly strategic area of the law, and difficult to make “pay its way” (evidenced by the conditional fee arrangement Cairns had with his lawyer – an option now also available in New Zealand in certain circumstances). 

Faced with sub-six figure recoveries compared to seven figure legal fees, it must be a very important point of principle, or a very well-heeled individual, to take a defamation case the full distance.  Which is why yet another brilliant hand by Chris Cairns may still be underwhelming in the overall result.  Vindication, but at a price.

Our thanks to Justin Graham for writing this Brief Counsel.

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