TEAM CODE: T07

TAMIL NADU NATIONAL LAW UNIVERSITY

(A University established under Tamil Nadu Act No.9 of 2012)

2nd NATIONAL MEDIATION-ARBITRATION COMPETITION

[31ST JANUARY – 2ND FEBRUARY 2020]

MR. REN WAKES

(CLAIMANT)

vs

GLOBAL CRICKET COUNCIL

(RESPONDENT)

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………….2

TABLE OF ABBREVIATION………………………………………………3

INDEX OF AUTHORITIES…………………………………………………4

STATEMENT OF JURISDICTION…………………………………………6

STATEMENT OF FACTS…………………………………………………...7

SUBMISSIONS RENDERED………………………………………………..9

SUMMARY OF SUBMISSIONS……………………………………………10

SUBMISSIONS ADVANCED………………………………………………11

1. Whether the appointment of the Third Arbitrator in accordance with the guidelines
prescribed be challenged?...........................................................................................11
1.1. The existence of an Arbitration Agreement…………………………………11
1.2. The appointment of Third Arbitrator is in accordance with the Mediation –
Arbitration agreement……………………………………………………….12
1.3. Grounds for challenging the Appointment of Arbitrator……………………13
2. Whether Respondents are liable for causing Reputational Loss to the Claimant
because of their Negligent Behaviour and is Claimant entitled to damages?............16
(A) The Respondent owed a Duty of Care to the Claimant…………………………16
(B) The Respondent made a Breach of the Duty……………………………………17
(C) The Claimant suffered damages as a consequence thereof……………………..19
(D) The rule of Last Opportunity……………………………………………………20
3. Whether the Claimant is liable for Defamation to be paid?........................................21
(A)The statement is a matter of truth………………………………………………..21
(B)The statement made was a fair comment………………………………………..22

PRAYER………………………………………………………………………24

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LIST OF ABBREVIATIONS

AIR All India Reporter

& and

Arb Arbitration

Cl. Clause
Del Delhi
Ed. Edition
GCC Global Cricket Council
GRC Grievance Redressal
Committee
Med Mediation
para paragraph
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
vs. Versus
w.e.f with effect from

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INDEX OF AUTHORITIES

STATUTES
• Arbitration and Conciliation Act, 1996. (India)
• Arbitration and Conciliation Act [As amended by Act No.3 of 2016
(w.e.f 23.10.2015)]

BOOKS
• Law of Defamation & Malicious Prosecution by V. Mitter
• The Law of Torts by M. N. Shukla
• The Law of Torts by Ratanlal & Dhirajlal
• Law of Torts by R.L.Anand

ELECTRONIC SOURCES
• http://www.supremecourtonline.com/
• http://www.indiakanoon.org/
• www.scconline.com/
• www.statista.com

CASES REFERRED
1. K. Sasidharan vs Kerala State Film Development Corporation, (1994)
4 SCC 135.
2. M.Dayanand Reddy vs A.P. Industrial Infrastructure Corporation Ltd.
And others, (1993) 3 SCC 137.
3. Jugal Kishore Rameshwaradas vs Goolbai Hormusji, AIR 1955 SC
812: (1955) 2 SCR 857.
4. Ranjeet Combine vs B.N.Khanna, (2000) 3 arb LR 348 (Del).
5. Indian Iron & Steel Co Ltd vs Tiwari Roadlines, (2007) 5 SCC 703.
6. Indian Oil Corporation vs Raja Transport (P) Ltd., (2009) 8 SCC 520.
7. Secretary to Government, Telecom Department, Madras vs
Munuswamy Mudaliar and Anr., AIR 1988 SC 2232.
8. International Airports Authority of India vs K.D. Bali (1988) 2 SCC
360.
9. V.K. Dewan & Co. vs Delhi Jal Board, (2004) 2 Arb LR 444 (Del).
10. State of Karnataka vs Shree Rameshwara Rice Mills.
11. Minor Veeran v. T.V. Krishnamorty AIR 1966 Kerala 172.
12. Philips v. Williams Whitely, Ltd., (1938) 1 All ER 566.
13. Hedley Byrne Co. Ltd. V. Heller and Partners Ltd.

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14. P.Narasinkha Rao v. Gundaverapu Jayaprakashan AIR 1990 AP 207.

15. Kishore Lal v. Chairman, ESI Corpn. (2007) 4 SCC 579; AIR 2007
SC 819.
16. Jones v. G.W. Ry., (1930) 11 LT.
17. Spaight v. Tedaestle, (1881) 6 AC 217.
18. Clarke v Taylor, (1836) 2 Bing 654.
19. Sutherland v Stopes, (1925) AC 78 -81.
20. Dainik Bhaskar v. Madhusudan Bhaskar AIR 1991 MP 162.
21. McPherson v. Daniels, (1829) 10 B & C 263.
22. Christile v. Robertson, (1889) 10 New South Wales LR 161.
23. J.B. Jeyaretnam v. Goh ChokTong (1985) 1 MLJ 334.
24. W.S. Irwin v. D.F. Reid, AIR 1921 Cal 282:63 IC 467:48 Cal 304:25
CWN 150.
25. Silikin v. Peaverbook Newspapers, (1958) 2 All ER 516.

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STATEMENT OF JURISDICTION

THE CLAIMANT HAS APPROACHED THE HONORABLE TRIBUNAL UNDER SEC..8

OF THE ARBITRATION AND CONCILIATION ACT, 1996

The Claimant, Europanea Captain Ren Wakes submits this statement of claims pursuant to
the Sec. 8 of the Arbitration and Conciliation Act 1996, as there exists an arbitration
agreement pursuant to Sec. 7 of the Arbitration and Conciliation Act, 1996. It is reproduced
as follows:

“Any disputes, difference or controversy arising out of or in relation or in connection with

this agreement shall be referred to mediation at the Tamil Nadu National Law University
(TNNLU) and in accordance with the NMAC Rules, 2020. The disputes shall also be referred
to arbitration as per the NMAC Rules, 2020 and Arbitration and Conciliation Act, 1996 at
Tamil Nadu National Law University, National MED-ARB competition, 2020.”

THE PRESENT MEMORANDAM SETS FORTH THE FACTS, ISSUES, CONTENTIONS

AND ARGUMENTS IN THE PRESENT CASE.

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STATEMENT OF FACTS

The Parties
1. Ren Wakes (Claimant) is the player and the Captain of the Europanea Cricket Team which
won the Cricket World Cup 2019 which was organised by Global Cricket Council
(Respondent).
Cause of Action
2. After nail-biting qualifiers, Team of Arasian and Team of Europanea made it to the finals.
Team of European was playing the second innings. During the over 49.4 Bismah bowled to
Wakes, it was a full toss on the middle, smeared away to the 30-yard circle fielder. Arasian
captain Lokesh Sen took the ball and set himself up for a direct hit. It might have well been a
direct hit but Wakes inadvertently deflected it away with his outstretched bat, diving forward
to save himself from being run-out. The deflection ensures the ball tickles away to the
boundary. Its six runs in the end. The Arasian captain Sen claimed that the ball hit the bat
before wakes touched the line, which ultimately ran away for a four. Sen claimed that it was a
deliberate act done by the batsman just to save his wicket and to take charge of the next ball.
The 3rd umpire reviewed it and used the on-field umpires’ discretion as per the GCC Rules,
1974, Amended in 2018 and declared it as 6 runs. Thereby, 2 runs required from 2 balls.
Later the match was draw so there was a super over to decide the winners of the trophy.
3. The Team Europanea won the World Cup for the first time on 26th December, 2019. The
“Man of the Match” Ren Wakes was picked up by the “Rising Star Team” for the T-20
League, and he also signed various personal endorsements with giant companies.
4. On controversy, on 27th December, 2019, the Arasian Captain challenged in front of the
GCC, the umpire’s decision of declaring 6 runs as arbitrary citing the 49.4th over and the
GCC Playing Conditions of Men’s ODI.
The Grievance Redressal Committee
5. GCC referred the matter to the Grievance Redressal Committee (GRC) of the GCC. The
GRC concluded on 31st December that it was a mistake on the part of the umpires in the
49.4th over and therefore decided that the GCC trophy shall be shared between the two
teams. The GCC also released a statement stating that since the trophy was to be shared, the
‘Man of the Match’ award was also to be shared. They released the statement on their
official website, and through press media. Subsequently, Ren Wakes took it to twitter to share
his grievances regarding GCC’s functioning.
Invocation of Arbitration
6. Following the press release, Ren Wakes was stripped off his captaincy and he lost his place
in the T-20 League, along with all the endorsements he had signed on the personal front. He
was no longer made eligible for the deal worth 500cr between GCC World Cup and ‘Garcia’,
a cola brand, to appoint the ‘Man of the Match’ as their Brand Ambassador.

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7. The Europanea captain challenged the decision of the GCC on 3rd January 2020 citing the
umpire fiasco as a big mistake which had negative repercussions on Europanea team and its
Captain. Subsequent to the challenge the GCC called for dispute resolution through a Med-
Arb as per the GCC Playing Conditions between Ren Wakes representing the entire
Europanea team and the GCC.
8. Each party to the dispute appointed one arbitrator, and the third neutral arbitrator was
chosen according to the guidelines prescribed under the GCC Rules. Mr. Pat Rafter was
appointed as the Third Arbitrator, which was eventually challenged by GCC while the other
side defends the appointment. The dispute will be now heard by this Arbitral Tribunal.

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SUBMISSIONS RENDERED

ISSUE 1
WHETHER THE APPOINTMENT OF THE THIRD ARBITRATOR IN ACCORDANCE
WITH THE GUIDELINES PRESCRIBED CAN BE CHALLENGED?

ISSUE 2
WHETHER THE RESPONDENTS ARE LIABLE FOR CAUSING REPUTATIONAL
LOSS TO THE CLAIMANT BECAUSE OF THEIR NEGLIGENT BEHAVIOUR AND IS
CLAIMANT ENTITLED TO DAMAGES?

ISSUE 3
WHETHER THE CLAIMANT IS LIABLE FOR DEFAMATION AND IS RESPONDENTS
ENTITLED TO DAMAGES?

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SUMMARY OF SUBMISSIONS

1. WHETHER THE APPOINTMENT OF THE THIRD ARBITRATOR IN

ACCORDANCE WITH THE GUIDELINES PRESCRIBED CAN BE
CHALLENGED?
It is humbly submitted that the appointment of the third arbitrator is in accordance
with the Mediation-Arbitration Agreement between the parties. Further, it is to be
noted that there is no ground available for challenging the appointment of the third
arbitrator as there is no cogent material available to challenge his independency and
impartiality.

2. WHETHER THE RESPONDENTS ARE LIABLE FOR CAUSING

REPUTATIONAL LOSS TO THE CLAIMANT BECAUSE OF THEIR
NEGLIGENT BEHAVIOUR AND IS CLAIMANT ENTITLED TO DAMAGES?
Yes, the Claimant is entitled to damages as the Respondents were negligent in
carrying their duty with due care. As the Respondents employed the Umpires to make
sure that the game is being held in accordance with the Playing Conditions, the
Respondents are Vicariously Liable for their actions. The umpires called for a wrong
decision and were negligent about the number of fielders on ground due to which the
claimant lost all the opportunities he was entitled with. The final game was not
conducted in a fair manner as the Umpires were negligent.

3. WHETHER THE CLAIMANT IS LIABLE FOR DEFAMATION AND IS

RESPONDENTS ENTITLED TO DAMAGES?
No, the Claimant is not liable for defaming the Respondent as the statement made by
the Claimant on Twitter was a fair comment, and everyone has a right conferred with
them to express their views, and honest criticism online. The Claimant had no
malafide intention while posting on twitter.

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SUBMISSIONS ADVANCED

1. WHETHER THE APPOINTMENT OF THE THIRD ARBITRATOR IN

ACCORDANCE WITH THE GUIDELINES PRESCRIBED CAN BE
CHALLENGED?

1. The Claimants humbly reiterate the fact that, the parties are free to agree on a procedure of
appointing the arbitrator or arbitrators, subject to some provisions of Article 11 of Arbitration
and Conciliation Act, 1996.
1.1. The existence of an Arbitration Agreement

2. According to Sec. 7(1) of the Arbitration and Conciliation Act, 1996, ‘an agreement by the
parties to submit to the arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship, whether contractual or not is
considered as an arbitration agreement’.

3. An Arbitration Agreement is procedural in nature and ancillary to the contract and is a

mode of settling disputes, which is collateral to the substantial stipulation of the contract,
embodying an agreement of both parties with consensus ad idem that in the event of any
dispute between the parties with regard to the obligations undertaken therein, which one party
has undertaken towards the other, such dispute shall be settled by a Tribunal of their own
creation.1

4. An arbitration agreement within the meaning of Sec. 7 of Arbitration and Conciliation Act,
1996, is not required to be in any particular form, but has to be ascertained, whether the
parties have agreed that if disputes arise between them in respect of the subject matter of
contract, such dispute shall be referred to Arbitration, which arrangement would spell out
existence of an Arbitration Agreement, irrespective of whether or not the expression
‘arbitration’ or ‘arbitrator’ arbitrators has been used in agreement2, however signatures of the
parties is not necessary.3

1
K. Sasidharan vs Kerala State Film Development Corporation, (1994) 4 SCC 135.
2
M.Dayanand Reddy vs A.P. Industrial Infrastructure Corporation Ltd. And others, (1993) 3 SCC 137.
3
Jugal Kishore Rameshwaradas vs Goolbai Hormusji, AIR 1955 SC 812: (1955) 2 SCR 857.

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5. The rules of construction and interpretation of arbitration agreement are the same as apply
to agreements generally. It is a normal judicial approach that the interpretation constructs the
agreement and not destroys it. The court gives effect to the intention of the parties gathered
from the contract as a whole and not as pick and choose4.

1.2. The appointment of third arbitrator is in accordance with the Mediation-

Arbitration agreement

6. Existence of a valid and enforceable Arbitration Agreement within the meaning of Sec. 7
of Arbitration and Conciliation Act, 1996, is a condition precedent before appointment of an
Arbitrator under Sec. 11 of the Act.

7. It is most humbly submitted that the appointment of the arbitrator has been made by
following the procedures as agreed between the parties and no departure has been made by
the parties. The further can be explained by pinpointing the process of appointment which is
produced hereinafter:

Cl. 13.5 of GCC Playing Conditions for Men’s ODI-

If the parties go for arbitration, as per the practice of GCC, there shall be three arbitrators
and the third arbitrator shall be an ex-chairman of the GCC who-

i. Is familiar with the functioning of GCC and appreciates the spirit of cricket.

ii. Has an expertise on cricket for the past 30 years.

iii. Should not hold any personal interest in the dispute or have any personal
relationship with any of the parties to the dispute.

8. The due procedure has been followed which had been agreed to, and therefore, the
question of appointment does not arise and more so when no ground for challenging the
appointment is made out. The agreed procedure of appointment of the arbitrator must be
respected.5

9. The process of arbitration is binding and voluntary alternative dispute resolution process
by a private forum chosen by the parties. It is quite common to provide for settlement of
disputes by arbitration, and further provide that the arbitrator will be a senior officer who has
full knowledge and comprehension of the functioning. If a party, with full eyes and complete

4
Ranjeet Combine vs B.N.Khanna, (2000) 3 arb LR 348 (Del).
5
Indian Iron & Steel Co Ltd vs Tiwari Roadlines, (2007) 5 SCC 703.

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knowledge and comprehension of the said provisions enter into an arbitration agreement, he
cannot subsequently turn around and contend that he is agreeable for the settlement of
disputes by arbitration6, but not by the named arbitrator following the procedures for
appointment of the same. A party to the agreement cannot claim the benefit of arbitration
under the arbitration cl., but ignore the appointment procedure contained in the arbitration cl.

10. The parties agreed to the agreement knowing the terms and its clauses. Unless there is
allegation against the named arbitrator either against his honesty or mala fide or interest in
the subject matter or reasonable apprehension of the bias, a named and agreed arbitrator
cannot and should not be challenged.

1.3. Grounds for challenging the appointment of arbitrator

11. Sec. 12 of the Arbitration and Conciliation Act, 19967 provides grounds for challenging
the appointment of an arbitrator. The Sec. further mentions the grounds giving rise to
justifiable doubts as to the independence or impartiality of arbitrators in the Fifth schedule.

12. Furthermore, the appointment of the arbitrator can be challenged on two grounds: (i) if
the circumstances exist that give risk to justifiable doubts as to his independence or
impartiality; or (ii) he does not possess the qualifications agreed to by the parties.

13. Merely because the arbitrator was the Claimant ’s coach does not give rise to a
circumstance that raises justifiable doubts so as to his independence or impartiality, as he is
also said to be the Ex-chairman of the Respondent.

14. It is a justifiable apprehension about the independence or impartiality of a former

employee arbitrator, if such person was dealing authority in regard to the subject contract or
if he is in direct accordance with the parties. However, the named arbitrator had nothing to do
with execution of the subject agreement, there can be no justification for anyone doubting his
independency and impartiality, in the absence of any specific evidence.

15. Reasonable apprehension of bias in the mind of a reasonable man can be a ground for
removal of the arbitrator. However, there must be a reasonable apprehension of the
predisposition. The reasonable apprehension must be based on cogent material. Vague

6
Indian Oil Corporation vs Raja Transport (P) Ltd., (2009) 8 SCC 520.
7
Sec. 12(1), When a person is approached in connection with his possible appointment as an arbitrator, he shall
disclose in writing any circumstances, - (a)Such as the existence either direct or indirect, of any past or present
relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial,
business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or
impartiality;

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suspicions of whimsical, capricious and unreasonable people should not be made the standard
to regulate normal human conduct8. Here, there is no basis for suspicion to challenge the
appointment of the arbitrator.

16. The test for bias is whether a reasonable intelligent man, fully appraised of all the
circumstances, would feel a serious apprehension of bias9; or/and there must be reasonable
evidence to satisfy that there was a real likelihood of bias10.

17. It is a case of mere suspicion and not a well-founded and justifiable doubt about the
arbitrator that he would not act fairly or impartially11 as he is related to the Claimant.

18. There cannot be any basis to contend that there is an apprehension in his mind regarding
the bias of the Arbitrator as the Arbitration Proceedings have not even commenced. It is
stated that the conduct of the Respondent is bad as it is indulging in delaying the proceedings;
as there is no ground available for the Respondent to challenge the appointment of the
arbitrator without any proceedings being held.

19. The Law Commission in 246th Law Commission Report mentioned that real and genuine
party autonomy must be respected, and, in certain situations, parties should be allowed to
waive even the categories of ineligibility as set in the proposed Fifth Schedule.

20. The doubts about ‘bias’ or partiality must be ‘justifiable’ on some objective basis. The
reasonableness of doubts must be tested by the standard of a fir minded, rational, objective
standard.

21. It is contended that the arbitrators appointed must be neutral ones12, and considering the
same approach the appointment of the said arbitrator is neutral in nature as he wouldn’t have
any personal interest with any of the parties.

22. Sec. 12(1) requires an arbitrator, when approached in connection with his possible
appointment, to disclose in writing any circumstances likely to give rise to justifiable doubts
as to his independence or impartiality. Sub-Sec. 12(3) enables the Arbitrator being challenged
if (i) the circumstances give rise to justifiable doubts as to his independence or impartiality,
or (ii) he does not possess the qualifications agreed to by the parties.

8
Secretary to Government, Telecom Department, Madras vs Munuswamy Mudaliar and Anr., AIR 1988 SC
2232.
9
Halsbury’s Laws of England, 4th Edn., Vl.2, Para 551, p.282.
10
International Airports Authority of India vs K.D. Bali (1988) 2 SCC 360.
11
V.K. Dewan & Co. vs Delhi Jal Board, (2004) 2 Arb LR 444 (Del).
12
State of Karnataka vs Shree Rameshwara Rice Mills.

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Sec. 18 requires the Arbitrator to treat the parties with the equality (that is to say without
bias) and give each party full opportunity to present his case. Nothing is Sec.s 11, 12, 18 or
other provisions of the Act suggests that any provision in an arbitration agreement, detailing
the procedure to the appointment of the arbitrator, if when such procedure is followed and the
named arbitrator had any personal relationship with either of the parties as there cannot be a
justifiable apprehension about the independence or impartiality of the said arbitrator as he has
no personal interest in the subject matter.

23. Where however the named arbitrator has nothing to do with the agreement, there can be
no justification for anyone doubting his independence or impartiality, in the absence of any
specific evidence. Therefore, he is considered to be independent and impartial and are not
barred from functioning as Arbitrators merely because he was related to either of the parties.

24. The position may be different where the said Arbitrator was still continued to be the
Claimant ’s coach as that would create a valid reasonable apprehension of bias in view of his
position and interest, and may be unsuitable to act as an Arbitrator in an arbitration involving
his team member. However, the said Arbitrator was Claimant s childhood coach, and he is
also said to have served as GCC’s chairman, which imbibes a position of neutrality in his
behavior towards resolving the said matter.

In the instant case appointment of the Third Arbitrator is in accordance with the
guidelines mentioned in the GCC Playing Conditions for Men’s ODI, so there cannot
be a question raised on the appointment of the third arbitrator as both the parties
have duly agreed to the guidelines.

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2. WHETHER THE RESPONDENTS ARE LIABLE FOR CAUSING

REPUTATIONAL LOSS TO THE CLAIMANT BECAUSE OF THEIR NEGLIGENT
BEHAVIOR AND IS THE CLAIMANT ENTITLED TO DAMAGES?

Common law has long recognized the rights of the individuals and institutions to protect their
reputations from destructive attacks. Damage to reputation lowers one’s standing amongst
one’s peers and, at the extreme, may even destroy the opportunities that may come in.

The Claimant humbly submits that the Respondent is liable for Negligence and therefore the
Claimant is entitled to damages for causing reputational loss to the Claimant. The same can
be justified by establishing that (A) The Respondent owed a duty of care to the Claimant; (B)
The Respondent made a breach of that duty; (C) The Respondent suffered damages as a
consequence thereof. (D) Also, the Rule of Last Opportunity.13

(A) The Respondent owed a Duty of Care to the Claimant

It is humbly submitted that the Respondent is a highly reputed governing body for the game
of Cricket and organizes World Championships. The Claimant, along with his team,
participated in the World Cup 2019 organized by the Respondent representing their country
Europanea. Hence, the Respondent was under a duty to take reasonable care towards the
Claimant to avoid the damage complained of.

The Umpires looking over the matches on ground and off ground owe duty of care to the
players playing on the field to make sure that the game is being conducted in a smooth
manner without any disruption, and all the rules and conditions mentioned in the Playing
Conditions is being followed. The Umpires are acting on behalf of the Respondent, as they
have been employed to carry on a certain duty, due to which the Respondent would be
Vicariously liable for their actions.

The House of Lords in various cases are of the opinion that the law will imply a duty of care
when a party seeking information from a party who possessed special skill trusts him to
exercise due care and that a negligent, though honest, misrepresentation in breach of his duty
may give rise to an action for damages.14 The law expects a person to show average amount
of competence associated with the proper discharge of the duties of that profession if he is
asked to perform a duty which needs certain professional skill. And he is said to be not acting

13
Minor Veeran vs T.V. Krishnamorty AIR 1966 Kerala 172.
14
Philips vs Williams Whitely, Ltd., (1938) 1 All ER 566; Hedley Byrne Co. Ltd. vs Heller and Partners Ltd.

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reasonably if he falls short of that and injures someone in consequence. Here, the Umpires
did fall short in exercising their duty firstly by calling for a wrong decision by awarding extra
runs which was later rectified by GRC, and secondly by unnoticing that there were more than
5 fielders outside the fielding restriction area because of which the match concluded with
unfair result.

The persons who undertake work requiring special skill must along with exercising
reasonable care also measure up to the standard of proficiency that is expected from persons
of such profession.15 Failure to conform to the required standard of care resulting in material
injury is actionable negligence if there is proximate connection between the Respondent’s
conduct and the resultant injury. The umpires took an arbitrary decision by awarding 6 (4+2)
runs to the Team of Europanea which was an outcome of Claimant’s act to “obstruct the
field”. The Umpires didn’t take the right decision while the obstruction was created on the
field by awarding 6 runs as according to the playing conditions it should not have been
awarded because of which the game ended in a divergent manner - at first the team of
Europanea were claimed to be the winners, which eventually resulted in the sharing of
Trophies by both the teams playing the finals.

Subsequently, the Claimant’s reputation built because of winning the World Cup at first, and
the opportunities he had received were all taken away from him because of the change in
decision by the GRC. After the change in decision, the Claimant was stripped off from his
captaincy and lost his position in the ‘Rising Star Team’ for the T-20 League. He was also no
longer eligible for the deal to be the ‘Garcia’s’ Brand Ambassador, though he was sharing the
‘Man of the Match’ trophy.

(B) The Respondent made a Breach of the Duty

The expression ‘Negligence’ is well explained in Blyth v. Birmingham Waterworks Co16. –

“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.”

In the case concerned, the Respondent is duty bound to ensure that the matches are conducted
in accordance to the Laws (which are incorporated within the GCC Playing Conditions), and

15
P.Narasinkha Rao vs Gundaverapu Jayaprakashan AIR 1990 AP 207.
16
(1856) 11 Ex 781.

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smoothly without any mistake on field by the Umpires, but the Umpires breached the duty
that they were bound to by not abiding to the rules laid in the Playing Conditions17 strictly.

The happening of the unfortunate incident affords prima facie evidence that it was the result
of want of due care. The very Negligence of the Respondent can be proved by the maxim
‘Res Ipsa Loquitur’ which means ‘the thing speaks for itself’. The doctrine of 'Res Ipsa
Loquitur' applies and it is proved because of the change in decision by the GRC after the
appeal to consider the instance. The said occurrence of events could have been avoided if the
Umpires acted reasonably by either calling it as a run out as according to Cl. 9.1.2 of the
playing conditions, “The striker is out obstructing the field if, in the act of receiving a ball
delivered by the bowler, he willfully strikes the ball with a hand not holding the bat or
holding the bat in one hand and obstructing the ball saving him from either bowled out or
run out.” Or if the umpires felt that there was no deliberate action by the Claimant then the
Umpires should have awarded the batsmen with 5 runs as according to Cl. 8.1 of the playing
conditions “If the boundary results from an overthrow or from the wilful act of a fielder, the
runs scored shall be any runs for penalties awarded to either side and the allowance for the
boundary and the runs completed by the batsmen, together with the run in progress if they
had already crossed at the instant of the throw or act. Batsman returning to wicket he has left
shall apply as from the instant of the throw or act.” Referring to the mentioned Cl. it is clear
that the umpires should have either called it a run out, or should have given 5 runs as the
batsmen had not crossed during the instant of the throw or act.

It was said in Scott v. London & St. Katherine Dock Company18, “where the thing is shown to
be under the management of the Respondent or his agent and the accident is such that, in
ordinary course of the thing, it does not happen, if those, who have management use the
proper care, it affords the reasonable evidence, in absence of explanation by the Respondent,
that accident arose from want of care.”

Negligence includes omission to take due care and as Organizers the Respondents act in not
abiding to the Playing Conditions, especially awarding the extra runs, and not eyeing on how
many fielders were outside the fielding restriction area is a pure act of negligence. The
Claimant respected the decisions given by the Umpires, and the subsequent occurring of
events were the outcome of their negligent conduct.

17
Annexure 1.
18
1865) 3 HCC 596.

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(C) The Claimant suffered damage as a consequence thereof

It is submitted before the Tribunal that not merely the Respondent was negligent but also
there was actual damage. And the damage caused to the Claimant is the consequence of
negligent act by the Respondent which is the direct and proximate cause of the damage. The
Respondent is supposed to make sure that the Playing Conditions are followed thoroughly.
Though the Umpires, employed by the Respondent, were aware of the rules, they firstly made
a mistake by allowing more than 5 fielders outside the fielding restriction area; and secondly
by awarding extra runs in the 49.4th over.

The Claimant relies upon the Judgment of Hon’ble Supreme Court in the case titled
“Ravneet Singh Bagga V/s K.L.M. Royal Dutch Airlines & Another”19, it was held that the
deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or
inadequacy in quality, nature and manner of performance which is performed by a person in
pursuance of a contract or otherwise in relation to any services”. This Judgment goes against
the Respondent because the facts clearly show that the Umpires, had committed deficiency in
service and even provided inadequate and substandard services by acting arbitrarily, which
was rectified by the GRC on a later stage, due to which the Claimant had to suffer grave
harassment, trauma along with financial losses.

It is important to mention here that the cause of action for negligence arose when the damage
occurred to the Claimant on account of breach of duty by the Respondent20. On account of the
negligence on part of the Respondent, the Claimant has suffered damages towards losing the
Captaincy, and an opportunity to be the Brand Ambassador for a famous company ‘Garcia’.
Also, the Respondent is liable to the Claimant for the mental agony and trauma suffered by
him as all the fame, reputation and opportunities he had earned by signing few personal
endorsements was taken aback. Everything the Claimant wanted to achieve or had partially
achieved was wrecked due to the Respondents failure to discharge their duty of organizing
the championship strictly abiding to the Playing Conditions.

Hence, the Claimant has proved not only that the Respondent was negligent but also that the
Respondent’s negligence was the cause of the accident21. There stands a direct relation
between the negligent conduct of the Respondent and the injury caused consequently to the
Claimant.
19
(2000) I SCC 66.
20
Kishore Lal vs Chairman, ESI Corpn. (2007) 4 SCC 579: AIR 2007 SC 819.
21
Jones vs G.W. Ry., (1930) 11 LT.

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(D) The Rule of Last Opportunity

It is also contended that the Claimant has not been afford an opportunity to defer negligence
on his part. It has been held in Redley v. L. & N.W. Rly and Co.22– “Although the Claimant is
guilty of negligence, yet if the Respondent could in the result, by use of ordinary care and
diligence have avoided the mischief which happened, the Claimant’s negligence will not
excuse him.”

In the concerned case, the decision to declare the run scored in 49.4th over as 6 (4+2) runs
was solely on the Umpires. There was sufficient time to reconcile on the decision as even the
third umpire reviewed the delivery. Furthermore, the third umpire was of the same opine.
Along with it, the umpires neglected that there were more than the allowed fielders outside
the fielding restriction area. There was a sufficient separation of time between the acts of
negligence so that this Tribunal may be gratuitous enough to hold that there was such a last
opportunity as will prevent the acts of negligence from being treated as contemporaneous.

It is important to consider that the finals is considered to be the most crucial game in any
sports, considering that the Respondent is supposed to make sure that there occurs no error in
conducting the match, and there is no mistake on their behalf while marking the scores as
even a single run in a crucial match makes a huge difference in deciding the end result.

It is established that the direct and immediate cause of damage is clearly proved to be the
fault of the Respondent, contributory negligence by the Claimant cannot be established
merely by showing that if the Claimant had not acted in a certain way, a different situation
would have resulted, in which the same mischief might not have occurred because the
Claimants were acting in accordance, and respected the decisions that were given by the
Umpires23.

On account of failing to deliver right decisions, and organizing the match strictly
following the Playing Conditions laid down by the Respondent, the Claimant humbly
requests this Tribunal that the Respondent should be held guilty for deficiency in
service and direct to pay compensation to the Claimant for the reputational losses
and damages he has occurred.

22
(1976) 1 AC 754.
23
Spaight vs Tedaestle, (1881) 6 AC 217.

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3. WHETHER THE CLAIMANT IS LIABLE FOR DEFAMATION AND

RESPONDENTS ENTITLED TO DAMAGES?

It is humbly submitted that the Claimant is not liable for defamation as the mistake occurs on
the part of the Respondent. The statements made by the Claimant are not defamatory in
nature as- (A) The statement is a matter of Truth; (B) The statement made was a fair
comment.

(A) The statement is a matter of truth

The Claimant contends that the words complained of are in substance and in fact true. The
statement made was – “6 fielders were outside the 30-yard circle in the 49.4th over. If the
rules are something we need to adhere, then was the delivery even a valid one? A mere
drama building around our efforts. #JustGCCthings #Worldcupdrama”.

A statement is true in substance if the erroneous details in no way aggravate the defamatory
character of the statement or alter its nature24. It has been laid is various cases that it is not
necessary to justify every detail of the charge, as long as the gist of the libel is proved to be in
substance correct, and that the details, etc., which are not justified, conveys no different
meaning to the reader than the actual truth would do.25 The Claimants statement was true in
substance as he only stated the facts which is furthermore confirmed by the pictures presented
in Exhibit-III.

It is the umpire’s duty to control what is happening on the ground. If there are more than the
said number of players outside the fielding restriction area, it is the umpire’s duty to object
the same and make sure that there is only allowed number of fielders to stand outside the
fielding restriction area.

It is important to mention here that the Claimant adhered and respected the decisions given
by the umpires’ time and again without objecting any considering them to have been
performing their duties respectfully. It shows that the Claimant, along with the team, reposed
all of their trust and confidence in the umpire which was breached by them.

In accordance to the statement made by the Claimant, the GCC Playing Conditions clearly
mentions in Cl. 2.4.2.3 that there should not be more than 5 fielders outside the fielding

24
Clarke vs Taylor, (1836) 2 Bing 654; Sutherland vs Stopes, (1925) AC 78 -81.
25
Dainik Bhaskar vs Madhusudan Bhaskar AIR 1991 MP 162.

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restriction area during PP3 (these are overs 41 to 50 inclusive). But during the 49.4th over
there were 6 fielders outside the fielding restriction area.26

Not only the decision given by the umpires to award 6 runs in the 49.4th over a mistake, but
also that the umpires weren’t strictly following the guidelines, because of which the
Claimant, along with the team suffered losses.

Hence, it is established that the Respondent was not carrying out their duties carefully and
were negligent in carrying forward their work to ensure fair play which is not how it is
supposed to be. The statement “the law will not permit a man to recover damages in respect
of an injury to a character which he does not or ought not to possess”27 aptly fits on the
defendant.

(B) The statement made was a fair comment

It is humbly submitted that the statement made by the Claimant was a comment which is a
statement of opinion of facts28(which includes inference of facts) and the matter alleged to be
defamatory is nothing but a fair comment on a matter of public interest, which a fair minded
person can honestly make on the facts proved.29 Any person, whether he is a private
individual has a right to hold any view he pleases on a matter of concern, and to express the
same on any available platforms.

The matter complained of as defamatory, was an honest expression of opinion made in good
faith. A matter of public interest is a matter which invites public attention, or in which public
is legitimately concerned. In a country like India where Cricket is the most followed sport,
the public is very keen in knowing what happens in each match that is conducted. If a match
results in a draw or a team losing because of the umpires negligent behavior it becomes a
topic of discussion over the social media.

A man has the right to publish, for the purpose of giving the public information that which it
is proper for the public to know, and to express his grievances. It is a matter of grave public
concern that a reputed non-governmental body which organizes world championships has
failed miserably in discharging its exercise or duty to organize the championship in
accordance with its guidelines and conduct the matches fairly.

26
Exhibit-III.
27
McPherson vs Daniels, (1829) 10 B & C 263.
28
Christile vs Robertson, (1889) 10 New South Wales LR 161.
29
J.B. Jeyaretnam vs Goh ChokTong (1985) 1 MLJ 334.

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The comment was made by the Claimant in good faith so that the public comes to know the
reality and the Respondent can be abstained from making similar mistakes in the subsequent
matches and take notice of every single detail on and off the ground to ensure fair play
abiding to the playing conditions. Fair comment is the name given to the right of every
citizen to comment on matters of public interest.

It is said that nothing is libel which is a fair comment on a subject fairly open to public
discussion.30 It is the expression of criticism that has to be fair.31

The statement as tweeted by the Respondent amounts mere to a ‘fair criticism’ which was out
of frustration. The plaintiff sincerely criticizes the unfair situation they are put in because of
the grave mistakes on part of the Respondent. The Respondent breached the trust and
confidence reposed by the Claimant which invites criticism. Hence, the Claimant states that
the ‘fair criticism of plaintiff does not amount to defamation’ as the view expressed is
honest.32

As remarked by Lord Denning in Slim v. Daily Telegraph Ltd.33, “He must honestly express
his real view. So long as he does this, he has nothing to fear, even though other people may
read more into it.”

Respondent should bear all the costs related to these proceedings

“The legal costs incurred in obtaining the indemnification must be considered part
and parcel of the compensation”34. Therefrom, the Claimant requests this Tribunal to
order Respondent to pay all costs related to these proceedings owing to the undue
distress caused to the Claimants.
Owing to the above submissions, the Claimants acquiesce that damages are not to be
accorded to the Respondent since there has been no defamation as so alleged. It is
well established that the comment is fair as it is stated on facts. The Claimant has
expressed the opinions honestly, done so upon facts accurately stated and hence there
is hardly any scope for complaint of defamation.

30
W.S. Irwin vs D.F. Reid, AIR 1921 Cal 282:63 IC 467:48 Cal 304:25 CWN 150.
31
V. Mitter, Law of Defamation and Malicious Prosecution.
32
Silikin vs Peaverbook Newspapers, (1958) 2 All ER 516.
33
(1968) 2 QB 157.
34
Southern Pacific vs Egypt, p. 207.

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PRAYER

For all the above-mentioned reasons, Claimant humbly submits to the Tribunal to find
that:

 The appointment of the Arbitrator is made in accordance to the procedure

accepted by both the parties, so it cannot be challenged.
 The Respondents must be held liable for behaving in a negligent manner
because of which the Claimant occurred damages and reputational losses up to
500cr.
 The Claimant cannot be held liable for defamation as the statement made by
him was not with a malafide intention, and it was an honest criticism.

And pass any award, direction, or relief that it may deem fit in the best
interests of justice, fairness, equality and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

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