A Lesson in Libel, 2012 Edition

I remember Lance Cairns very well. He came to England several times. He was a big man with an even bigger reputation but, sadly, his performances here were patchy to say the least. It was the way that he wielded the willow that caused all the expectancy. Over his career, using that rather strange looking shoulder-less bat, which was affectionately known as Excalibur, there were some ferocious displays of big hitting. It only happened once in England though, in an ODI at Old Trafford in 1978. Cairns came to the crease at 85 for 6 with his team chasing an impossible target. They only got 67 more, but Cairns got 60 of those in no time at all. He cleared the boundary four times as well as hitting four fours. It confirmed what he was capable of, but sadly England never saw a repeat.

Cairns’ main role, certainly here in England, was as a bowler, and his figures, while not being spectacular, are decent enough. Along with the likes of Ewan Chatfield, Derek Stirling, and Martin Snedden he was one of that pack of Kiwi medium quicks who, while not looking particularly threatening on their own, were a perfect foil for Richard Hadlee.

No member of Hadlee’s supporting cast was particularly fast but, as I recall it, Cairns was barely above medium most of the time. He had a strange, almost mincing, approach to the wicket, and then bowled off the wrong foot. He had the same natural in-swing that all who bowl in that fashion achieve, and as he gained experience he acquired the ability to move the ball off the seam as well. He chose an auspicious moment for his one foray into Hadlee’s limelight, at Headingley in 1983. In conditions that suited his style of bowling perfectly he took seven wickets in England’s first innings and three more in their second as New Zealand recorded their historic first Test victory in England. Remarkably Sir Paddles contribution with the ball was 0-44 followed by 0-45, but you can’t keep an all-time-great completely quiet, and his 75 runs in the New Zealanders first innings were crucial to their victory.

I really should remember Cairns for that performance at Headingley, although I am afraid to say that my abiding memory of him tends to be an incident that took place in the field in the next Test of the same series, at Lord’s. Cairns was at square leg and one of those languid Gower pulls, a top edge on this occasion, flew up in the air towards him. It went quite high in the air, but he hardly had to move and somehow contrived to drop an absolute sitter. I am not going to say that that was representative of his fielding, as I have no other memories of it to call on to enable me to make that judgment, but I have no doubt that it was one of those episodes where he just wanted the ground to open up and swallow him.

Lance Cairns’ career ended, somewhat unsatisfactorily, in 1986 when he was left out of the squad which was to tour Australia. Anno Domini was against him, but he had never recovered from an incident that took place in a Test match against Pakistan in Dunedin in February 1985. Batting without a helmet he was poleaxed by a delivery from a then 19 year old Wasim Akram, and was hospitalised afterwards with a suspected fracture of the skull. Despite the potential severity of the injury, and its after effect of dizzy spells lasted for months, Cairns showed that he had immense courage to go with his other attributes as he sat, waiting for his turn to bat later in that very same match. Thankfully he was not required as Ewan Chatfield helped Jeremy Coney add the fifty runs for the ninth wicket that took the match, and the series for New Zealand.

As Lance Cairns’ career was finishing that of son Chris was just beginning. One record that the pair hold, and one it is difficult to see being beaten, is that amongst those select families who have contributed a father and a son to Test cricket the period of less than four years that elapsed between Lance’s final Test and Chris’s first, is far shorter than the period of just under ten years that applies to the Cowdreys, who are second in that particular table.

Despite the enormous popularity enjoyed by Lance and the affection with which he is remembered by cricket lovers in New Zealand, nobody would seek to suggest that Chris was anything other than a significantly superior cricketer in all respects*. The disappointment of Chris Cairns’ career is that while he did manage to play as many as 62 Test matches for New Zealand he also, over its duration, missed another 55 through injury. Had he remained fully fit throughout he might now be remembered as the finest all-rounder the game has seen.

In his early days Chris Cairns the bowler was distinctly sharp. He was not quite genuinely fast, but was not far short, and could hurry the best batsmen. The successive injuries took their toll on his pace but overall his quality as a bowler did not suffer too much, as what he lost in speed he gained in guile and, much like Richard Hadlee before him, he remained a top class performer despite cutting his pace.

As to his prowess with the bat Chris was a much better player than his father, and lost little in comparison in the big hitting stakes – indeed at one time held the record for the most sixes in Test matches.

Chris Cairns’ final test came at the age of 33 in 2004. He continued to play ODIs for a couple more years before retiring from that format as well, following a couple of mediocre series against Zimbabwe and Sri Lanka.

Given the pattern of his career it was no surprise that Chris Cairns was one of the few established Test cricketers who eventually ended up signing for the now defunct Indian Cricket League. The threats of bans and otherwise being ostracised from the game’s mainstream were of relatively little consequence to a man who had already called time on his International career. As captain of the World XI and the Chandigarh Lions he was, Brian Lara apart, the biggest name in the competition. He completed his first season with the ICL but left part way through the 2008/2009 competition. It came as no surprise to any seasoned Cairns observer when the reason given for the ending of his contract was injury.

That seemed to be the end of Chris Cairns’ cricket career until he resurfaced again in January 2010, and put himself forward for the Indian Premier League auction that was due to take place on 19 January. He did not however make it into the auction because the Governing Council of the IPL removed his name from the list of available players.

IPL Commissioner Lalit Modi made no bones about why Cairns’ name had been removed. He did, of course, have every reason to despise the ICL but at the end of the day his IPL had seen off their rivals, and other former ICL players such as Shane Bond, Damien Martyn and Saqlain Mushtaq did not find their names removed from the list.

As soon as Chris Cairns walked away from the ICL there were rumours across the internet that allegations of match fixing were involved. It seems, and he accepts this, that that was a subject that had indeed been discussed at the meeting at which his contract was terminated, but there was no suggestion that that was any part of the reason for the decision being made. That was always said to be an ankle injury, which Cairns had exacerbated by doing a 1000 kilometre charity walk in memory of his sister who had tragically died in a train accident at the age of 13.

One of the frustrating aspects of the limited reports that are available about the case of Cairns v Modi is the lack of any detail about the end of Chris Cairns’ ICL career, particularly as one of the suggestions made to Cairns in the High Court was that to walk away from a contract under which he could potentially earn USD750,000 was of itself evidence that there was merit in the allegations being made. Personally I strongly suspect the issue of the injury, and the manner of its being aggravated, would almost certainly have given the ICL grounds to take the action that they did, assuming that they had made the prudent investment of having some decent legal advice when their contracts were drafted. The answer that Cairns gave in Court, that he harboured hopes of returning to the ICL in the future and that he did not therefore wish to burn his boats by embarking on precipitous legal action against them, seems to me to be a sound one, particularly as I doubt he had any room for manoeuvre anyway. Even now Chris Cairns is only 41 and, given the way he played the game, there can be no doubt that as long as he remained relatively free of injury he could have been playing T20 cricket to this day.

But I get ahead of myself. Cairns sensibly ignored the tittle-tattle that appeared on the internet but felt, entirely understandably, that once a figure as influential in the game as Lalit Modi went public on the allegations that he had to act. After the now notorious tweets Modi confirmed his views in subsequent interviews and a libel writ was issued. Cairns did this in the High Court in London which led to him being criticised by Modi’s Counsel for “libel tourism”. It is certainly true that London is a forum of choice for many libel claimants by virtue of the fact that the burden of proof lies on the maker of a defamatory statement to demonstrate that it was true. So as long as the libel was published in England and Wales, even if few see it, the action can be conducted here. In fairness to Cairns it needs to be pointed out that he does have a substantial connection with England. He and his children were educated here and, lest it be forgotten, he had as many as seven seasons, albeit often injury-interrupted ones, playing for Nottinghamshire in the County Championship.

There is of course a downside to beginning the litigation in England. Now that Cairns has been successful he has the problem of recovering the sums the Court have ordered should be paid to him. It may be that Modi will simply pay up but if he does not then, assuming he has no assets in the UK, I can foresee a rocky road for Cairns in his efforts to harvest the fruits of his litigation.

In truth Cairns probably had little choice but to pursue the course that he did. As he said himself “The allegations have had a profound effect on my personal and private life. They put a strain on my marriage. It hurts that my wife may think that I am not the man she thought I was. It hurts me too that friends, many of whom are former cricketing foes, will question my integrity as a man and a sportsman and that all I achieved in the great game of cricket could turn to dust”.

To clear his name Cairns spent the early part of last month defending himself in the High Court. He spent eight hours being cross-examined by Lalit Modi’s Counsel, Ronald Thwaites QC. That cannot have been a pleasant experience. Thwaites is known, certainly in my corner of the legal profession, as “Rough Ron”. The soubriquet is well earned. He is a peerless cross-examiner and I have no doubt that those hours that Cairns spent in the witness box faced by Rough Ron would have been an infinitely more searching examination than anything he faced on the cricket field.

Perhaps it was because it came so hot on the heels of the trial and subsequent imprisonment of Salman Butt, Mohammed Asif and Mohammed Amir, that the case took on, at least in the eyes of the media, something of the flavour of a criminal trial. In fact it wasn’t. Chris Cairns, effectively, had to prove nothing beyond establishing that what was tweeted was defamatory and that was not difficult. As Mr Justice Bean said in his Judgment “It is obvious that an allegation that a professional cricketer is a match-fixer goes to the core attributes of his personality and, if true, entirely destroys his reputation for integrity”. That being the case then as noted the onus then fell on Modi to establish his defence of justification or, in simple terms, that Cairns was indeed a match fixer.

Looking at the case after its conclusion it is clear that Rough Ron did not have a great deal to work with. The core of his case was the evidence that was given to the Court by six of Cairns’ ICL teammates. It is interesting to look at the careers of those players.

If I have understood the reports I have read in the case correctly four of the men gave evidence over a video link, and hearsay evidence was provided by two others. The first of those who actually gave evidence, Rajesh Sharma, is now 27. He is an off spinner with a modest record who has not played in a First Class match since December 2006.

Tejinder Singh is a 34 year old left handed batsman, and occasionally effective orthodox slow left arm bowler who has clearly had his moments in the past, but overall has a distinctly ordinary record and, after playing just 10 First Class matches since the 2006/07 season, the last of which was in November 2010, his career would appear to be over.

Gaurav Gupta last played First Class cricket in January 2007. He is now 27 years of age and averaged less than 30 with the bat in the 18 First Class matches that he played before joining the ICL.

The last of those who actually appeared, Karanveer Singh, whose evidence ultimately did not apparently support Modi in any event, is currently 24. A leg spinner by cricketing trade, Singh has never played a First Class match.

Those whose hearsay evidence was received were Lovesh Ablash and Amit Uniyal. Ablash, a 29 year-old all-rounder, has played First Class cricket since the demise of the ICL, although not since December 2009, and overall despite reasonable figures his 16 match First Class career does not suggest that he had any pretentions to greatness.

Finally Amit Uniyal is a 30 year old all-rounder with, like Ablash, a fairly respectable set of First Class statistics over a brief career, but he has not played at that level since December 2006. He did however, perhaps surprisingly, appear in a couple of IPL matches for Shane Warne’s Rajasthan Royals in March 2010 albeit with little success.

I have seen it suggested in various blogs and other less than reputable places on the internet that these men, none of whom have been able to make a career out of their chosen profession, might have received some “assistance” in order to give the evidence that they did. It should be stressed that while the Judge certainly rejected their evidence he himself made no such suggestion. In addition while the Judge was critical of the competence of Howard Beer, who I will go on to mention in more detail, he did not question his honesty, and I believe we can therefore take it as true in light of Andrew Hall’s evidence that some or all of these Indian players had raised the match-fixing issue long before Lalit Modi chose to make the comments that gave rise to the case.

The Court also heard from two other players. Darryl Tuffey, who played with Cairns for New Zealand and Chandigarh, submitted a witness statement on behalf of his old teammate stating that he had “no reason to believe any of my teammates were involved in match fixing”, that he was “completely shocked”, to hear the details of the Twitter messages and finally “I have no doubt as to Chris’ honesty and his integrity”.

More interestingly Cairns’ successor as captain of the Chandigarh Lions, South African all-rounder Andrew Hall, was called to give evidence to the Court on behalf of Modi. Hall did at least confirm that in a meeting that he had had with six of the side’s Indian players that three of them sought to implicate Cairns in match fixing. Having been of that level of assistance to Modi he went on to say, much no doubt to Modi’s disappointment, that he had concerns that Cairns had been framed by the Indian players and was worried about the same thing happening to himself.

Modi’s star witness was doubtless intended to be Howard Beer, a former Australian police officer, who had been the ICL’s anti-corruption officer. In the course of his investigation Beer interviewed 23 players and told the Judge that the “overall context of the evidence” led him to the view that Cairns, together with Dinesh Mongia, were involved in match-fixing.

One man the Court did not hear from was Mongia, the Lions’ vice-captain and former Indian ODI batsman. He is a man of considerable significance in the story because the allegation seems to have been that his role, effectively to interpret between Cairns and the Indian players, would have been crucial to the supposed match fixing. He did not appear for either side and, of course, the mere fact of the need for an interpreter raises the very real possibility of misunderstandings anyway. I have little doubt but that both parties would have approached him and considered the possibility of calling him as a witness so, presumably, he either refused to help them or they took the view that he was too much of a loose cannon to be risked in court. Sadly we will probably never know, which is a great shame as it must surely be the case that one way or another he is the one man involved who does know precisely what happened.

One point which, early in the trial, seemed to be quite damaging to Cairns was the payments that he had received in 2008 and 2009 from an Indian diamond trader, Vijay Dimon. In total USD245,000 was paid into his account in three separate tranches. This was, Cairns accepted, not paid pursuant to any written contract but simply to a verbal arrangement. It does seem an odd way to do business, and the apparent absence of any confirmatory evidence from anybody concerned with the deal seems strange but, ultimately, despite Thwaites digging away at the point Cairns remained resolute in his explanation. Nothing was, as far as I can see, put forward to suggest that Mr Dimon was anything other than a genuine trader nor indeed does it seem that it was actually asserted that Cairns did not do the promotional work that he claimed to have been paid for, so what appeared at one stage to be a telling point in Modi’s favour turned out to be something of a damp squib.

Modi, much to Cairns’ anger, chose not to give evidence himself. That is not surprising in the circumstances. What Modi had done was simply to repeat allegations made by others. There was nothing he could add to the evidence that was put forward in support of his plea of justification, and had he got into the witness box he would simply have exposed himself to the sort of gruelling cross-examination from Andrew Caldecott QC that Rough Ron inflicted on Cairns. The Judge would have understood that – had this been one of those libel cases heard in front of a jury then the decision that Modi had to make would have been rather trickier.

To use a cricketing comparison it would be fair to say that in the end Cairns won by an innings. The most quoted line from the judgment has been that Modi “singularly failed to provide any reliable evidence that Mr Cairns was involved in match fixing or spot fixing or even that there were strong grounds for suspicion he was”. Of Mr Beer’s involvement the Judge was deeply critical stating his “brief appears to have been to look only for evidence of guilt”, and that he was “partisan to the point of being unprofessional”. As for the players their evidence was described as “inconsistent and unreliable” and the Judge concluded “Even if I were applying a simple balance of probabilities test, the plea of justification would fail”. Damages were assessed at GBP75,000 but an uplift applied to take them to GBP90,000 to mark the manner in which the case was was fought by Modi, which the Judge described as a “sustained and aggressive” attack on Cairns. He counted 24 separate occasions on which Cairns was described as a “liar” in the defence’s closing argument. Modi will have to pay Cairns’ costs as well and an interim payment of GBP400,000 has been ordered against those. For once it would seem that Mr Thwaites was a little too rough. Had that GBP15,000 not been added the costs argument would have been rather more interesting as it emerged that in April 2011 Cairns had rejected an offer of GBP75,000.

So Chris Cairns beat Lalit Modi on a slow turner in the High Court, but has his reputation been completely vindicated, or are there always going to be a few doubts about his integrity? Unusually in a libel action I have to say I firmly believe it is going to be the former. Part of the reason for that is the fact that the accusation is, realistically, so absurd. If Chris Cairns had really wanted to take the bookmakers’ cash then why on earth would he have sought to achieve that by paying what amounted to very little to as many as six men who he did not know, and could never get to know because he could not directly communicate with them anyway? And of course there was the seventh man, Mongia, who would need to be paid as well. In addition it should not be forgotten that Cairns was the Lions’ captain, so he had complete control over the batting order and who bowled when. He was also an all-rounder, quite capable of bowling a deliberate no ball from the opening delivery of his second over, or getting out for less than five, without the need to involve anyone else at all in his dastardly plan, or share any part of his ill-gotten gains. One participant alone cannot fix the result of a cricket match, but a captain can spot-fix with alacrity.

Modi can of course appeal, and indeed the trial Judge gave him permission to do so, albeit on the limited ground of the quantum of the award. That would lead to an interesting judgment from the Court of Appeal, but only to the parties and to anyone interested in the law. It would not make a scrap of difference to the fact of the Judge finding in favour of Cairns. Modi has of course said he will appeal the whole decision, but to do that he will need to persuade the Court of Appeal that there is some question of law or procedure that was dealt with so badly by the Judge that the verdict cannot stand. His legal team will doubtless produce some carefully crafted grounds in support of his application, but nothing I have read suggests to me that those grounds are going to be able to get around the essential problem that Modi came up against, that being that the Judge did not believe his witnesses. In English law no grounds of appeal to the Court of Appeal can ever exist simply on the basis that the putative appellant does not like a Judge’s findings of fact.

So in my book Chris Cairns walks away from his unseemly spat with Lalit Modi with his reputation not only intact but, perhaps even enhanced. If I were advising Lalit Modi I would suggest that an apology might be in order, coupled with the wielding of his chequebook. Those two steps themselves would not gain him my respect, but he would earn that if he went on to offer Chris Cairns the opportunity to play in the 2013 IPL.

*In 43 Test matches Lance Cairns scored 928 runs at 16.28 with 2 fifties. He took 130 wickets at 32.90. There were 6 five-fors and that one 10 wicket match haul at Headingley. His 78 ODIs brought him 987 runs at 16.72 with 2 fifties. His 89 wickets came at 30.52 with an economy rate of 4.06

In 62 Test matches Chris Cairns scored 3,320 runs at 33.53 with 5 centuries and 22 fifties. He took 218 wickets at 29.40. There were 13 five-fors and one 10 wicket match haul. His 215 ODIs brought him 4,950 runs at 29.46 with 4 centuries and 26 fifties. His 201 wickets came at 28.31 with an economy rate of 4.84