ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Tugendhat
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE MOSES
| Lalit Modi
International Management Group (UK) Ltd
|- and -
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Sherborne (instructed by Schillings) for the Second Appellant
James Price QC and Adam Speker (instructed by Rosenblatt) for the Respondent
Hearing date: 21 June 2011
Crown Copyright ©
Lord Justice Thomas:
I attach an email detailing minutes of a meeting called by Mr Modi, held with IMG and 3 English Test grounds. A whistleblower provided this.
The minutes are self-explanatory.
It sets out a plan to destroy world cricket's structure and especially that in England, and create a new rebel league.
The plan seeks to remove all Boards' powers, and involve players in a fashion unheard of.
I am certain BCCI [the Board of Control for Cricket in India] had no knowledge of this meeting nor of these proposals, but Mr Modi clearly represents that [Indian Premier League] and its Governing Council are offering financial inducements to English counties.
*We have already commenced legal action with regard to the English officials and counties involved.
*We also wish to take action against IMG for promoting this along with Mr Modi and to seek their banning from world cricket.
*ICC [International Cricket Council] Regulations are very clear concerning contacts of this nature which are forbidden.
Your help and support in eradicating this threat and dealing with the miscreants will be greatly appreciated. The ECB [England and Wales Cricket Board] believes under your leadership the BCCI/ECB relationship has become very strong.
I have tried to call you to brief you.
I am in West Indies and communications are very varied.
With best personal wishes,
The e-mail attached was from Stewart Regan which appended his report of the meeting with Mr Modi and IMG. Some days later, on 8 May 2010, Mr Clarke wrote a letter (backdated to 2 May 2010) to Mr Shashank Manohar in the same terms as the e-mail, but omitting the paragraphs against which there is an asterisk. The meanings of the acronyms in the e-mail did not appear in the e-mail as sent.
The applicable law
"A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally."
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" …. (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense."
"Words are not defamatory, however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that would disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man is not actionable within the law of defamation."
There are a number of cases which illustrate by their particular application this distinction. These include Myroft v Sleight (1921) 90 LJKB 888, Clay v Roberts (1863) 8 LT 397 and Hughes v Architects' Registration Council of the UK  2 QB 550.
"the court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naive or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task."
The pleaded defamatory meaning of the e-mail
"In their natural and ordinary meaning the said words meant and were understood to mean that [IMG] was complicit in the promotion of a plan to destroy the structure of world cricket and especially that in England by the creation of a new rebel cricket league so as to subvert the legitimate powers of all national and world cricketing boards, including the ECB [England and Wales Cricket Board], the BCCI [Board of Control for Cricket in India] and the ICC [International Cricket Council], in a manner forbidden by the ICC regulations and such as to merit the banning of the miscreant [IMG] from any role in world cricket as well as the institution of legal proceedings."
IMG in the claim for damages also alleged that the e-mail and letter:
"accused IMG of gross professional misconduct justifying not only it being banned from world cricket but also the institution of legal proceedings against it."
"In their natural and ordinary meaning the said words meant and were understood to mean that [Mr Modi] had been secretly orchestrating a plan to destroy the structure of world cricket and create a new rebel league; such conduct being unlawful, forbidden by ICC regulations, already the subject of legal proceedings and justifying his being banned from world cricket."
The decision of the judge
"Right thinking members of society have, by definition, a view of what is right or wrong in personal conduct. But the court cannot attribute to members of society generally any view on what might be the proper structures for the governance of cricket or the rules they should apply to any sport. That is not a matter of right or wrong in the sense of what is required by the legal definition of what is defamatory."
The submission as to meaning advanced on the appeal
i) Mr Clarke's e-mail alleged that Mr Modi and IMG had called the meeting, whose objective was to destroy world cricket structure, such intention being plainly anti-social, disruptive and a threat which needed to be eradicated by their being banned from world cricket.
ii) Mr Modi and IMG had called the meeting secretly (until exposed by the whistle-blower) and behind the back of the Board of Cricket Control in India who allegedly had no knowledge, such conduct being plainly underhand, if not deceitful.
iii) The conduct of Mr Modi and IMG was such that those who attended the meeting called by him had already been made the subject of legal action by the England and Wales Cricket Board, in other words Mr Modi and IMG had by calling the meeting induced unlawful conduct on the part of those attending, and thereby acted unlawfully themselves.
iv) The contact initiated by Mr Modi and IMG with the English officials and counties involved was very clearly forbidden by the regulations of the International Cricket Council.
The meaning the words are capable of bearing
Are the words capable of being defamatory?
"It is not of itself disgraceful to disagree with a majority view and to act accordingly. It is only if a man has bound himself in honour to accept that view and to act according to the code that a deliberate breach of the code for his own profit can be called disgraceful."
In my view that reflects the position of Mr Modi and explains why the words are capable of having a defamatory meaning.
Lord Justice Moses:
Master of the Rolls: