Most Read Contributor in New Zealand, September 2016
The stain on the reputation of one of New Zealand's
greatest cricketers has been washed clean by the London High
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
The result analysed
The decision of Mr Justice Bean is notable for a number of
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
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
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
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.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Parties have agreed on the resolution themselves, so it is often more practical for their own particular circumstances.
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