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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cairns v Modi [2012] EWHC 756 (QB) (26 March 2012) URL: https://www.bailii.org/ew/cases/EWHC/QB/2012/756.html Cite as: [2012] EWHC B1 (QB), [2012] EWHC 756 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CHRIS LANCE CAIRNS![]() |
Claimant |
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| - and - |
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| LALIT MODI |
Defendant |
____________________
Ronald Thwaites QC and Jonathan Price (instructed by Fladgate LLP) for the Defendant
Hearing dates: 5-9, 12, 14 and 16 March 2012
____________________
Crown Copyright ©
Mr Justice Bean:
The ICL
"ChrisCairns
removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today."
"We have removed him from the list for alleged allegations [sic] as we have zero tolerance of this kind of stuff. The Governing Council has decided against keeping him on the list."
Cairns
", in which the allegation was repeated.
Cairns
has sued Mr Modi for defamation in respect of the Tweet and the comment to Cricinfo. The defamatory meaning of the Tweet is obvious, namely that the Claimant had fixed cricket matches. The meaning of the statement to Cricinfo is not quite as clear because of the garbled reference to an "alleged allegation". I accept the submission on behalf of the Defendant that the meaning of the statement to Cricinfo is that there were "strong grounds to suspect" that the Claimant was guilty of match fixing.
Cairns
was a match fixer; or, alternatively, whether at the material time there were strong grounds for suspicion that he had been a match fixer.
Cairns
was a cheat, he loses his case.
Cairns
was indeed a match fixer must therefore depend on evidence of statements made or instructions given by him indicating that he was corrupt or seeking to influence members of his team to act corruptly.
The standard of proof
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to proved to a high degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
… "In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below…….[A] possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann's example of the animal seen in Regent's Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established."
The obtaining of evidence for this trial
(1)In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. .
(2) Regard may be had, in particular, to the following— .
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; .
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; .
(c) whether the evidence involves multiple hearsay; .
(d) whether any person involved had any motive to conceal or misrepresent matters; .
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; .
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."
Cairns
in support of the pleaded defence of justification. On 9 February 2012, following a visit by Fladgate to India, signed witness statements from three former Chandigarh Lions were served. Each gave evidence by videolink from Delhi.
The Claimant's finances
Cairns
' evidence, supported by an internet printout of a newspaper interview he gave in 2010, was that as his cricketing career was drawing to a close he had taken the opportunity offered by a part time job with a diamond trader who had become a personal friend: all the more so after a house fire in 2007 (again evidenced by a newspaper printout) in which his children and members of Mr Dimon's family had all been in danger. The payments were for the deposit on a house in Dubai and his first year's salary.
The Claimant's injury
Cairns
' participation in the three editions of the ICL was pursuant to contracts with the ICL's promoters, Essel Sports Private Limited (ESL). The contract which governed the second and third editions was dated 31 January 2008. The contract was to run for three years at a fee of US $350,000 per year. Mr
Cairns
was to render services for "a maximum of 302 days for the term of the agreement, ie approximately 102 days each year" excluding travel time. The undertakings by Mr
Cairns
in clause 1.5 included the following:-
"h. That the Player shall use his best endeavours to maintain his form and fitness so as to be available for regular selection for Matches and to perform his duties to the best of his ability under this Agreement.
i. That, during the Term of this Agreement, the Player shall not engage in any activity or pursuit which is or may be prejudicial to ESL or to his health or cricketing form or the performance of his duties under this Agreement, including but not limited to winter sports (such as skiing, snowboard, tobogganing), scuba-diving, mountaineering, rock climbing, parachuting, racing on wheels or horseback, potholing or bungee jumping unless otherwise agreed in writing by without the consent of ESL (which will not be unreasonably withheld by ESL)………
k. That the Player shall upon becoming aware that he is, or is reasonably likely to be, suffering any illness, injury or other ailment, he will notify ESL and the ICL Therapist Team in writing and wherever practicable, the details of that illness, injury or other ailment which, in their reasonable opinion, may affect the Player's performance or his ability to fulfil his obligations under this Agreement."
Cairns
said that he had often had to play through pain. But the package which the ICL had bought for $350,000 a year was incomplete.
The third edition and the Claimant's dismissal
Cairns
was the best known international player in the Chandigarh Lions team. The most senior of the Indian players in the team was Dinesh Mongia. Mr Mongia acted as an unofficial vice-captain, not least in assisting communications between Mr
Cairns
and those Indian members of the squad whose English was limited.
Cairns
was called to the suite occupied by Himanshu Mody, the ICL chairman. Apart from the chairman four other ICL executives were present: Tony Greig, Ajay Kapoor, Kiran More and Bharat Reddy. None of these five gentlemen has given evidence in this case, although it is clear that the Defendant has been in contact with Himanshu Mody in connection with preparations for this case. Mr Beer, who has given evidence, says he was present for part of the meeting, although he merely observed and did not say anything. The Claimant does not remember him having been there at all. Neither of them was asked to recall in detail what had happened at the meeting until more than a year after it occurred, and there is no contemporaneous record. Mr Beer's diary, which he used on occasions as an abbreviated form of policeman's notebook, refers to this meeting in a single line: "
Cairns
meeting till wee hours". It is therefore hardly surprising, and does not indicate dishonesty on the part of either witness, that the two accounts of the meeting put before me differ considerably.
Cairns
' version, in his second witness statement made on 18 August 2011, was as follows:
"I went upstairs and those present in the room were Tony Greig, Himanshu Mody, Ajay Kapoor, Kiran more and one other of the ICL executive committee I believe, whose name I cannot remember. All present were always very courteous and I would describe the working relationship between us all as healthy. They are all strong individuals and they, like me, had taken a big risk in joining with the ICL and between us all there was a common bond. The meeting was cordial and lasted approximately 20 minutes. Everyone was seated in a circle around a central coffee table, having either a wine or a beer.
Himanshu Mody was the 'host' when I arrived and he led the discussions. He offered me a drink. After a bit of chit-chat he asked me about rumours that had stretched back to the Second Edition of the ICL when a Pakistani team, the Lahore Badshahs, had come into the tournament led by Izamam-Ul-Haq. Rumours had circulated at the time about their performance in that tournament. Himanshu Mody then said that there had been rumours that my name, along with others, had been mentioned in connection with match-fixing. He did not say where the rumours came from. I said any such rumours were laughable and completely untrue. Himanshu Mody accepted this and so as I could tell so did the others present. All were quite uncomfortable when Himanshu mentioned the match-fixing claims. When I refuted them there was almost an audible sigh and a more relaxed attitude pervaded thereafter. I do recall at some point during the meeting I told those present that I had had a concern about levels of performance of three of my players when my team played the Kolkota Tigers on 26 March 2008 and I had given those players a dressing down in the toilets.
There was no mention of any specific games in the Third Edition, we just talked about murmurings and rumours of match-fixing in general. There was no reference to witness statements or affidavits being given by players in my team. There was no request by me or them to hear what other players had said about either match fixing or me. It was a general conversation about the rumours of match fixing and the tone of the meeting was more a sounding out of my views. I was a senior figure in the tournament as well as being one of the first ICL recruits. In addition I was captain of the ICL international team. When I raised the dressing down conversation I have to three of my players I was not asked to name the players involved. I was not accused of anything during this meeting.
In my [first witness] statement made on 11 October 2010 at paragraph 22 I said "allegations of match fixing did not arise" in this meeting. I have reflected upon my wording. What I said in that statement was true. There was no allegation. There was instead a sounding out of my views about the rumours of match fixing.
The conversation then turned to my injury and my below par performance in the Third Edition of the ICL. It would be fair to say that the tone of the conversation changed at this point. Himanshu Mody said he felt I was undermining the credibility of the tournament. Before this meeting nobody had asked me why I had not been bowling at the tournament. However, Tony Greig, for one, knew about the injury because in his [television] commentary of our first match on 13 October 2008 he says: "ChrisCairns
has not bowled. He has got a problem with his ankle apparently. He has been doing a lot of charity walking and he suffers a fair bit of pain with his ankle." The commentary indicates that Tony Greig's co-commentator, Dean Jones, was also fully aware of the situation. By the time of the meeting on 26 October 2008 I believe my injury was common knowledge.
Himanshu Mody then said he was terminating my contract because I had not disclosed the extent of my injury. It was clear to me that the ICL Executive Committee had made its final decision regarding my ankle injury, so I reluctantly accepted it. They left the door open for me, telling me to go away get fit and come back for the 2009 tournaments. We parted on good terms. I was disappointed that I was no longer able to participate, but encouraged by being told by Himanshu Mody that I should get myself fit and return for the 2009 ICL tournaments. Unfortunately the ICL then folded. I said that whilst I understood his decision I did not agree that it was the right call. There had been talk in the Indian media that the ICL was a joke league and a retirement home for past cricketers. In hindsight, I suppose this was the ICL taking a tough stance to show they were serious and in effect I was a high profile casualty to get this message across that this was a serious league.
I tried to persuade the Committee to let me try to complete the tournament and get through it, as I had got through injuries throughout large parts of my career, and then we could sit down and have further discussions at the conclusion of the tournament. This was to no avail.
Himanshu Mody said the ICL did not want to be taken for a ride and they were paying me a serious amount of money (US$350,000) to participate in the ICL and from their point of view it was not a good investment given my fitness. It was Himanshu Mody in particular who was adamant and said he had been watching my performances and I was not bowling. Although I maintained that I would be able to soldier on, the decision was made to terminate my contract for fitness reasons. This decision had nothing to do with any allegations of match fixing, which were our discussions in the first half of the meeting."
"In the early hours of the morning on 27 October, I was summoned to an adjacent room in the hotel where I met ICL executive Tony Greig, Ajay Kapoor, Himanshu Mody and Bharat Reddy, who were with ChrisCairns
. They were discussing the allegations made by various players of Chris
Cairns
' involvement in match-fixing. (I found out a couple of days later that the ICL had also spoken to other players in the evening of 26/27 October) Chris
Cairns
was also questioned about giving instructions to a senior Chandigarh player, Dinesh Mongia. It was put to Chris
Cairns
that he had used fear tactics with some players in order to persuade them to under-perform in certain games, and that he promised money or a guarantee of their place in the team for under-performing. He denied this and denied that he had any involvement in match-fixing. Tony Greig asked Chris
Cairns
if he could offer any explanation as to why members of his team had implicated him in match-fixing. Ajay Kapoor informed
Cairns
that he would bring in the players and have them face him and repeat their allegations in his presence. Chris
Cairns
declined that offer. When
Cairns
was defending himself of [sic] these allegations, Tony Greig reminded
Cairns
that people could not believe that Hansie Cronje had been involved in match fixing……… Following this discussion, Chris was taken into another room at the hotel by Ajay Kapoor and Himanshu Mody. As I believed my presence was no longer necessary, and because it was very late, I left before the three men returned to the room and before any findings were arrived at."
Cairns
.
Cairns
returned to the room with Mr Kapoor and Mr Mody; that the Claimant seemed "a bit more relaxed and not as forthright" as before leaving the room; and that Mr
Cairns
said to Mr Greig "Look, let me finish the tournament", but was told that this would not be possible.
Cairns
rang Andrew Fitch-Holland, an English barrister who was a personal friend of the Claimant and acted as his unofficial legal adviser. According to Mr Fitch-Holland the Claimant said that his contract had been terminated because he had hidden the true state of his fitness. "He said he thought he was being made an example of, and he wanted my view". At no stage during the telephone call did Mr
Cairns
mention or refer to match fixing.
Cairns
.
Cairns
as described by Mr Beer was of a guilty man who knows he has been found out and has no answer to the charge. He also put it to the Claimant that when in his first witness statement he had said that allegations of match fixing did not arise, he had been lying.
Cairns
. It is not suggested that any of the accusers was referred to by name; and I do not accept that Mr Kapoor or anyone else seriously proposed to bring in them one by one to confront the Claimant. It is possible that Mr Kapoor may have said something on these lines: "of course we could bring in the people who are saying this and question them, but that would be pointless, because we are terminating your contract anyway because of your injury". The likelihood is that after a brief reference to the rumours, and an enquiry as to whether Mr
Cairns
had any comment to make about them, the ICL executive moved on to Mr
Cairns
' injury. Since the tournament began he had not bowled; as batsman he had scored only 23 in three matches; and the Lions were only in sixth place.
Cairns
was involved; and by a view, not supported by expert evidence before me, that some of the tactical decisions made by the Claimant during that game were inexplicable. However, this is a libel trial, not an unfair dismissal claim by Mr
Cairns
against the ICL. I find on the balance of probabilities, and on the limited evidence available to me, that the reason they gave him for his dismissal was his breach of contract relating to the injury, as set out in paragraph 39 above.
Cairns
and Mongia suspended by ICL", which read:
"ChrisCairns
and Dinesh Mongia, both of the Chandigarh Lions, have been suspended by the ICL. Andrew Hall, the South African allrounder, will replace
Cairns
as Chandigarh's captain.
A brief statement issued by the ICL did not specify the reason but sources have told Cricinfo that the action was taken by the ICL's executive board "on disciplinary grounds".
Cairns
arrived for the current Twenty20 tournament carrying an ankle injury, and did not disclose his fitness status to the ICL, it has been learnt. "This violates the player's contract, which clearly states that he needs to be fit when appearing for the tournament, or should inform the ICL in case of an injury," the sources said. "
Cairns
has been sent back and will no longer take part in this particular tournament. His ICL contract remains intact, though we will take a final call after this tournament ends (on Nov 16)."
Mongia was suspended because he knew aboutCairns
' injury in advance but did not share the information with tournament officials. "Dinesh will also not be part of this particular tournament," the sources said, also justifying the action against both players. "We wanted to send a strong message that nobody can take the ICL for granted, whatever may be the player's record and reputation." Apparently, this was conveyed to
Cairns
and Mongia today by senior ICL officials who had separate meetings with both.
Cairns
, 38, has flopped in the second season, scoring just 23 runs in three matches. Mongia has scored 90 runs at 30.00, with a wicket as well. Chandigarh are currently sixth in the ICL points table."
Cairns
saw Andrew Hall, who had been appointed to take his place, and Jock Campbell, the fitness coach, shortly before the meeting and told them he was innocent and had been made a scapegoat. According to Mr Hall in a statement made on 26 November 2008, Mr
Cairns
asked them to stick up for him when they heard stories about his involvement in match fixing. He went to address the team, said they would hear a lot of rumours about his suspension, broke down in tears, and departed. He left the country the same day.
Cairns
had been set up by the local players, to take the blame off them. Next day he and Mr Campbell had an important conversation with Mr Beer. Mr Hall asked whether the process had been done correctly and was told that "all was done to the letter", which, said Mr Hall, "eased some concerns that I had". He went on:
"I then started to have doubts regarding Chris' innocence and Jock asked Howard what was his view on Chris' involvement in the match fixing was, and he told Jock he had no doubt concerning Chris' involvement in match fixing. Jock said, "That's good enough for me" as he walked away. I asked Howard who was involved and he told me that it was not his position to divulge the names of the players."
Cairns
; by Love Ablish, Gaurav Gupta and Amit Uniyal who separately made various allegations against Mr
Cairns
, which I consider below, regarding the Mumbai Champs match, and Chetan Sharma and Karanveer Singh, who jointly told him that they had not been involved in match fixing and this was why they had not been picked for the first three games of the third edition.
Cairns
and Mr Mongia had been sacked for match fixing.
Cairns
"all the best for your surgery" [on the ankle]. On 20 March 2009 they had a conversation about the Claimant's contract, after which Mr
Cairns
emailed to say that he had not been paid anything by ICL since September. The next day Mr Mody replied: "Chris, you cannot impose the same contract on us as that was terminated the same day we had our discussions in Delhi. We have to work towards a new contract if we agree to work again with each other." These would be curious emails for the chairman of the ICL to have sent to someone who was thought to have been a match fixer, engaged in what Mr Thwaites described as a diabolical scheme.
The evidence of match fixing
Cairns
. The issue is whether he was a match fixer, not whether anyone else was.
Howard Beer
Q: On the basis of what material did you tell these two gentlemen that you had no doubt that MrCairns
was involved in match-fixing?
A: Probably on the strength of TP Singh's statement.
Q: But you told me earlier that TP Singh was a man whose word was to be treated with extreme caution, Mr Beer.
A: Correct.
Q: Why didn't you simply say "There is one allegation made against him by a witness over whom, it must be said, there are some doubts about his credibility"? That would have been a perfectly straight and fair answer, wouldn't it?
A: It may well have been, but I didn't say that.
Cairns
, but none which was favourable. (Among those he did mention was TP Singh, but he said nothing about TP Singh's admissions of his own dishonesty.) He gave a detailed account of his dealings with ICL executives on various occasions, but said nothing about being told to stop his investigations on 18 October; nor about his view that the ICL executive had an agenda, and were only telling him what they wanted him to know.
Andrew Hall
Cairns
. His view was decisively changed by the assurances given to him by Mr Beer immediately after the Claimant's departure that proper procedures had been followed to the letter and that he, Beer, had no doubts about Mr
Cairns
' involvement in match fixing.
Andrew Fitch-Holland
Cairns
immediately after the Shangri-La Hotel meeting. He has no first-hand evidence to give about match-fixing itself.
Melanie
Cairns
Cairns
told me that on the night of the Shangri-La Hotel meeting the Claimant said that he had been dismissed because of his injury. She was also able to provide supporting evidence about his relationship with Vijay Dimon. I accept her evidence as far as it goes, but it is not central to the case.
Daryl Tuffey
Cairns
was, nor indeed that any of his team mates were, involved in match fixing or cheating of any kind, including match fixing. He was not asked to make a statement during the investigation, and it is not suggested by either side that he was.
Gaurav Gupta
Cairns
concerns the match against the Mumbai Champs on 13 October 2008, the first of the third edition. Mr Gupta alleges that Mr Mongia told him that he could earn Rs 10 Lacs (about £12,000) per game if he would simply follow Chris
Cairns
' instructions.
Cairns
came to the crease. He and Mr Gupta can be seen on the DVD of the match exchanging very brief words. Mr Gupta was caught soon afterwards without further score.
Cairns
' departure, Mr Gupta spoke to Mr Hall, who had been appointed the new captain. Mr Gupta told him about corrupt approaches by Dinesh Mongia during the second tournament, Mr Mongia adding that "everyone else was involved" and that he would be given instructions at the appropriate moment. Then, according to Mr Hall:
"Gaurav told me that during the break in innings during the game on 13 October 2008 he was told by Dinesh Mongia to get out before he got to five runs. When Gaurav was batting and was on four, the Chandigarh Lions lost a wicket and ChrisCairns
came in to bat. Gaurav told me that he and Chris
Cairns
had a meeting in the middle of the wicket and Chris had asked him at this point how many runs he had. Gaurav had told Chris that he had four; Chris responded and said in that case, it was time for Gaurav to get out and walked away without saying another word. Gaurav told me that he then got caught out the next ball as per his instructions".
Cairns
was indeed party to spot fixing which made it necessary for Mr Gupta to be out for less than five, he would surely have been thinking of little else as he came to the wicket.)
Cairns
came to him during the break in innings in the Mumbai game and told him not to make any more than 5 runs. Mr Gupta "was upset at this and when he was 4, got out even though he did not mean to get out". He made no mention to Mr Beer of any conversation at the crease with Mr
Cairns
. Instead, the instigator of the alleged corrupt conversation between innings had changed from Mongia to
Cairns
.
"In the interval we all came back in to have some snacks. I was in between the dressing room and the exit when ChrisCairns
came over to me. He said "Dinesh Mongia must have talked to you" and I said "yes". He then told me "not more than 5 runs" to which I replied "ok". I felt like I would have to do this, otherwise I would not be playing again. I was also nervous as I understood what I was being asked to do………….
[When a wicket fell] ChrisCairns
came to the middle of the crease. He then asked me how many runs I was on, to which I replied that I had 4 runs. He then said "you should get out" and walked away. I was thinking that this is a good wicket, and that I wanted to play a few more balls. Even if I didn't score, I wanted to stay out a little while longer. So I decided to play some non-scoring shots and then try and get to 5 and then get out. But for one ball from Nathan Astle I tried to play a normal shot along the ground but ended up hitting it for a catch."
Rajesh Sharma
Cairns
. Mr Sharma was interviewed by Mr Beer in Ahmedabad on 10 November 2008 with the assistance of Milind Pradhan of the ICL who acted as translator, and all three men signed copies of the witness statement recording what he said. It outlines corrupt approaches made by a bookmaker, Robin Talwar, before and during the first ICL tournament, to him and TP Singh; and says that TP Singh was apparently match-fixing. Mr Sharma says that during the second tournament he was not being selected; he became upset and expressed the view that some matches looked fixed. He was told by Mr
Cairns
and Mr Mongia that if he continued in this vein he would be made to leave. He was selected to play against Hyderabad, and was not asked to do any fixing by anyone. He alleges that during the domestic tournament Mr Mongia said that if he was not going to get involved in fixing he would "continue to carry the water bottles" and not be selected. Mr Sharma said he was not interested.
Cairns
or Dinesh Mongia were involved, only my cricketing sense in watching the games."
Cairns
' hotel room after the 18 October match against Chennai, the day after Mr Beer's talk on match-fixing to the Chandigarh Lions team:
"Chris asked me, why did I want to go to Kiran More? I told ChrisCairns
, why am I not playing, what is my fault, and why are you blaming me regarding match fixing when I am not playing? Chris told me that he was giving fair chance to everyone, don't go to anyone and to shut up. Mongia said during the meeting. "Whoever gets a chance, grab it." He said that in Hindi. The next game I am playing against Hyderabad, straight after my outburst."
Cairns
' remarks about "giving a fair chance to everyone" clearly refer to his selection policy as captain; as does Mr Mongia's comment "whoever gets a chance, grab it". The version in Mr Sharma's witness statement of February 2012 is significantly different. After referring to a conversation among the Indian players in the team bus about their concerns that matches were being fixed and the need to tell Kiran More of the ICL, which he thought may have been overheard by Mongia, he describes the conversation in the hotel room as follows:
"TP Singh said to us, what are you trying to say? It was apparent to us that ChrisCairns
, TP Singh and Dinesh Mongia were asking us about our conversation on match fixing which had been overheard. I replied that I knew what was going on, and Sarabjeet said "I know everything". Chris
Cairns
told Dinesh Mongia something close to his ear. Dinesh translated it into Hindi and said "whatever you people want to do, you are free to do and will get your opportunity, but do not interfere with us".
Cairns
had been removed from the team (as had Mr Mongia); and it was widely rumoured that the real reason was involvement in match fixing: indeed Mr Hall and Mr Beer had made it tolerably plain to the team that this was why Messrs
Cairns
and Mongia had left. Mr Sharma had already made clear allegations against TP Singh, the second most senior Indian player in the team (Mongia being the most senior), and he told Mr Beer that his "cricketing sense in watching the games" made him wonder whether Mr Mongia and Mr
Cairns
might be involved too. There is no reason why Mr Sharma should have kept the true content of the 18 October conversation secret. I cannot accept his new evidence as being true.
Karanveer Singh
Cairns
.
"I would have done whatever ChrisCairns
had asked me to do throughout the ICL. To me he was one of the biggest names and I was not going to question his decisions. A lot of my friends felt the same way. This is the way we have been trained throughout our playing careers."
Cairns
, the ICL executive, TP Singh and other members of our team and other ICL teams". Mongia took the father into his hotel room and the young man was told to go back to his own room. After more than half an hour the father came back and told the son that according to Dinesh Mongia, if he (Karanveer) did not get involved he would probably continue carrying the water bottles and not play for the team. But if he agreed to become involved he would be told what to do when the moment came by either Mr Mongia or Mr
Cairns
. Karanveer Singh's witness statement continues:-
"After this conversation Dinesh Mongia did not mention it to me again. I think he believed that he had been able to convince my father. A few days later ChrisCairns
came to talk to me while we were in Chandigarh. He said "have you had a word with Dinesh?", to which I said yes. He then asked me, "what do you think?". I was not going to say yes or no to him. I did not know what to say. I would never had said no to his face, but my conscience would not allow me to say yes,"
Cairns
?
Cairns
which the witness describes is at worst ambiguous, at best entirely innocuous. Mr Mongia was the unofficial vice-captain and a regular channel of information between the Claimant and the Indian players. "Have you had a word with Dinesh? What do you think?" are the sort of remarks the captain could have made to any player at any time.
Amit Uniyal
"I spoke to UNIYAL at room 615 of Hotel Pride in company with Miland PRADHAN. UNIYAL confirmed that he had been approached by MONGIA and informed that if he did not want to be "water boy" he would do what his Captain ChrisCAIRNS
informed him during games. MONGIA informed UNIYAL, that he (MONGIA) had a huge influence in team selection and that if he did not carry out instructions, there were others in the squad who would carry them out.
It was during the Mumbai game, on Monday October 13th at Hyderabad that UNIYAL was given the ball, to bowl during the game. CaptainCAIRNS
approached UNIYAL and informed him that he had to bowl some "loose" bowls, short of a length, during his spell.
CAIRNS
told him it did not matter if he went for a lot of runs, as he would be picked for the next game and he may only have to bowl in this manner for two games only. UNIYAL stated that he was not happy with this, but did what he was told by his Captain, fearing for his position in the team.
UNIYAL said that he was not promised any money for not performing in the games, just his position in the team. I have been informed that during a subsequent interview with UNIYAL, which I was not privy to, he had admitted that he was to receive money as a result of being part of the match fixing scam. He would not partake of a written statement, having been advised by his father not to do so."
Cairns
at a particular moment in the Mumbai game, when Mr Uniyal was at the back of his bowling mark, to bowl a no ball during that over. The DVD of the match does show one glaring no ball by Uniyal, with his leading foot a long way over the line. The camera then cuts to the captain looking dismayed, as well he might. It was not suggested to the Claimant in cross-examination that this was play-acting, (It was noted by Mr Hall in his November 2008 witness statement that he had learned from Mr Campbell that both Mr Uniyal and Mr Ablish had had problems with bowling no balls during the domestic tournament.)
Love Ablish
Cairns
came up to him and told him to bowl a yorker on the leg stump. "I bowled as Chris wanted", said Mr Ablish, "and bowled two wides. I did not mean to bowl the wides, it was just that I was bowling how the captain wanted me to bowl. Chris told me not to worry and keep going for the Yorker. Then I bowled the rest of the deliveries of the over normally". He gives a similar account of his next over: Mr
Cairns
told him to go for the leg side yorker, but he bowled one wide and one full toss which was hit for four.
TP Singh
Cairns
"asked me to do loose bowling, so the batsmen can hit" and said that he would be paid if he did so. Notwithstanding this, according to Mr Singh, he bowled normally. He also says that before the second game, at Delhi, Mr
Cairns
asked him to bat slowly. Mr Singh does not seem to have done that either, since on his own account he played his normal cricket and he made 19 runs, including a 6, off 21 balls. He too has not given evidence in this trial.
Mr
Cairns
Cairns
had not mentioned that he and Mongia had played together in a tournament in Dubai in February 2008. What this proves was never made clear. They played together in each of the three ICL editions; and plainly there were opportunities, had the two men been co-conspirators, for them to be in contact by telephone or otherwise between those editions. That does not begin to prove that they were co-conspirators. Nor does the Claimant's evidence, which I accept, that he believed Mr Mongia to be an honest man.
Cairns
then was) had spent the short period between the charity walk and the start of the Third Edition recuperating in Canberra. In fact Mr
Cairns
spent 48 hours recuperating in Canberra, then made a short visit to see his children in South Africa and stopped off in Dubai before going to India for the Third Edition. The inaccuracy is immaterial and, coming in witness statements made so long after the events in question, far from indicative of dishonesty.
Conclusion
Cairns
was involved in match fixing or spot fixing, or even that there were strong grounds for suspicion that he was. Gupta, Sharma and TP Singh are not to be believed for the reasons I have given; the hearsay evidence of Uniyal and Ablish is inconsistent and unreliable; and Karanveer Singh's last-minute evidence falls well short of sustaining the Defendant's case.
Damages
"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation ; vindicate his good name ; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel ; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way."
The extent of publication
"It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach…"
This remains true in the 21st century, except that nowadays the poison tends to spread far more rapidly.
Vindication in the judgment
"The effect of such [a] judgment no doubt depends on all the circumstances and, generally speaking, the effect in relation to vindication will I think most likely be marginal. Where there has been a fiercely contested trial on the facts, perhaps attended with much publicity, and the defendant's witnesses have been roundly disbelieved and there is a positive and unequivocal finding in the claimant's favour on the merits, those circumstances will be relevant as amounting to some vindication."
The Claimant's reputation
Cairns
' own evidence there was an incident in late 2009 when the famous cricketer Rodney Marsh refused to autograph a bat already signed by the claimant. The Claimant went on to say that shortly afterwards he and Mr Marsh resolved their differences.
Cairns
was the subject of rumours about his involvement in match fixing. Some internet comments from that period were included in the documents before me, but they are of little significance compared with a comment made by the then chairman of the IPL. I do not consider that there is evidence of a generally blemished reputation such as to reduce the Claimant's damages.
Cairns
never challenged his dismissal from the ICL; that it was "connected with match fixing"; and that he "acquiesced with the ICL to present his dismissal (upon grounds that have never been properly explained) as having been brought about by his failure to disclose an ankle injury, when this was patently ludicrous". I have already held that the ICL were entitled to dismiss the Claimant for his breach of contract in aggravating his ankle injury on the charity walk and arriving for the ICL tournament unfit to bowl as a result, and that this was the reason they gave him at the time. That issue is in my judgment irrelevant to the assessment of damages for these libels.
Aggravating features
"… if one looks at the matter not from the point of view of the state of mind of the defendant but for the purpose of assessing the injury to the plaintiff's feelings, it is easy to see that a contest which involves justification or fair comment may increase the injury and add greatly to the anxiety caused by the proceedings which the plaintiff has had to bring to clear his name."
Cairns
v Lalit Modi in the UK.". He also wrote "why can't I say more? See Chris
Cairns
v Lalit Modi in UK. … Match fixing must be stopped".
Cairns gave evidence in re-examination that he was sad and angry that these allegations have been put and in particular that the good name of his friend Vishal Shah had been attacked without Mr Shah having any opportunity to reply. He has a point, but in my judgment the effect on a third party who is a friend of the Claimant cannot aggravate the damages. The relevant allegation for present purposes was in effect that the Dubai account was being used by the Claimant to launder advance payments for match fixing, or at any rate that there were strong grounds for suspecting that it was. This was one aspect of the way in which the plea of justification was advanced at trial, which I deal with next.
"In our submission it was nothing short of a diabolical scheme that involved blackmailing young players of ability and integrity into match fixing when that was the last thing they wanted to do. … So they were prisoners. They were being abused. There was a breach of trust by the captain and the vice-captain. They were like children in an orphans' home who, abused by everyone around them, can trust no one, can report to no one."
Conclusion on damages