Modi & Anor v Clarke

An allegation that a person seeks to change a sport’s structure, negotiates confidentially, induces a breach of contract or contravenes its regulations is not, without more, defamatory merely because it disparages that person among supporters of the existing structure.

The position may differ where the person has undertaken to observe the governing rules. An allegation that the person secretly undermined rules by which they professed to be bound is capable of imputing dishonour and lowering them in the estimation of right-thinking members of society generally. The same principle may apply to a company alleged to have dishonourably and disloyally breached rules binding upon it.

The appellants brought defamation proceedings concerning an email and a related letter sent by the respondent, the chairman of the England and Wales Cricket Board. The communications described a proposed new cricket league as a threat to world cricket, alleged prohibited contacts and sought action against the appellants.

At a pre-trial hearing, Tugendhat J held in [2011] EWHC 1324 (QB) that the words were incapable of bearing a meaning defamatory of either appellant. Permission to appeal was granted on a limited ground.

The central issue was whether the communications were capable of conveying any defamatory meaning, particularly that the appellants had acted dishonourably by undermining rules and practices by which they were bound.

1. Appeals allowed unanimously. The communications were capable, on a narrow basis, of bearing a defamatory meaning concerning each appellant. The pleadings had to be amended to reflect that limited meaning.

2. The court had to determine the natural and ordinary meaning conveyed to the reasonable reader. That reader was neither naïve nor unduly suspicious, could read between the lines and would read the communication as a whole without an over-elaborate analysis. The relevant reader was assumed to understand the cricketing acronyms, the appellants’ organisational positions and the attached account of the meeting.

3. Defamation requires disparagement in the estimation of right-thinking members of society generally. Disparagement confined to a section of the community is insufficient. Any risk that a jury might confuse those categories could be addressed by appropriate directions and did not justify removing the issue from the jury.

4. Allegations that a person wished to destroy the existing structure of cricket, negotiated confidentially, induced a breach of contract or made contact prohibited by cricket regulations were not, taken alone, capable of being defamatory among society generally. Their adverse effect depended upon acceptance of the existing cricketing structure or code.

5. Mr Modi’s position was different because of his offices in cricket’s governing bodies. A reader could understand that he had agreed to be bound by their rules and practices. The email was capable of alleging that he secretly undermined rules by which he professed to be bound and therefore acted dishonourably. Applying Hughes v Architects’ Registration Council of the UK [1957] 2 QB 550, disagreement with a prevailing view was not itself disgraceful, but deliberate breach of a code accepted as binding in honour could be.

6. The email was also capable of alleging that IMG was bound by International Cricket Council regulations and had dishonourably and disloyally breached them by attending the meeting. Right-thinking members of society generally could view that allegation as imputing more than robust commercial competition.

7. The possible weakness of the claims, and the availability of defences including honest comment, qualified privilege and justification, did not determine whether the words were capable of bearing the defamatory meaning.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 937, unanimously allowed the appeals on the narrow ground that the communications were capable of imputing dishonourable and disloyal conduct. Amendment of the pleadings was required.
• Queen’s Bench Division: Tugendhat J held in [2011] EWHC 1324 (QB) that the words were incapable of bearing any meaning defamatory of either claimant and refused permission to appeal.