The Colombo District Court rejected an application by former West Indian cricket captain Clive Lloyd to register a judgment of the High Court of Justice of the UK against the Sunday Times.
District Court Judge Sampath Wijeratne in his order said that he found that it is not justifiable to register in Sri Lanka, for the purpose of enforcement, the foreign judgment of the UK High Court against the Editor, Publisher and Sport Journalist of the Sunday Times, who are all resident in Sri Lanka. The Judge stated that Mr. Lloyd had not pleaded that it was justifiable to register the judgment of a foreign Court in Sri Lanka.
Mr. Lloyd was an International Cricket Council (ICC) Match Referee during a test match played in Kandy in 2003 between Sri Lanka and England.
The Sunday Times reported in an article on the sports page of 21 December, 2003 an incident during that Test match where Sri Lankan spin wizard Muttiah Muralitharan had come into bat at No. 11 when former England captain Nasser Hussein called him a “f…..g chucker”.
This prompted Muralitharan to report the incident to the Team Manager Air Cmdr. Ajith Jayasekera, who in turn reported the matter to the Match Referee, Mr. Lloyd after Muralitharan submitted a signed letter of protest.
Mr. Lloyd had called an inquiry into the matter. Those attending the inquiry were the captains of the two teams, Hashan Tillekeratne (Sri Lanka) and Michael Vaughan (England), the two umpires and the third umpire, the England coach (Duncan Fletcher), the two team managers, Muralitharan (the complainant) and Hussein (the accused).
The inquiry began with the screening of the video footage of the incident. As the incident occurred in mid-field (as opposed to mid-pitch), the stump microphone had not picked up the audio (voice) of Nasser Hussein’s remarks.
We reported that at the inquiry, the Match Referee, Clive Lloyd then asked the England team manager for his views, and proceeded to ask Nasser Hussein what he had to say. Hussein had told the Match Referee words to the effect “Mr. Match Referee, if you find this Nasser Hussein guilty of misconduct on that evidence you and the ICC will be hearing from my lawyers very soon”.
Other than to say that he was only doing his job, or words to that effect, Match Referee Lloyd eventually played down the entire incident and let Hussein off with a minor piece of advise that players must conduct themselves better, or words to that effect.
The Sunday Times said that “over the years this has become the trend. When it comes to an Englishman or Australian, the Match referees fear to use their legitimate powers”. The article was written in the backdrop of a on-field clash between Australian fast bowler Glen McGrath and West Indian batsman Ramnaresh Sarwan where McGrath used foul language but was let-off scot-free.
Mr. Lloyd denied what we reported as having been what had transpired at the inquiry and said that he was not intimidated to giving a lesser sentence nor did he do so purely because Hussein was an England test player.
The Sunday Times stood by the facts of what transpired at the inquiry, and justified its comments that Mr. Lloyd had been weak when it came to taking action against England.
In an incident the following year, Clive Lloyd as a Match Referee found Indian test captain Sourav Ganguly guilty for his team's slow over rate that cost him his suspension for two test matches. A PTI story filed on 14 November, 2004 referred to the Board of Control for Cricket in India's Platinum Jubilee one-day International against Pakistan played at Eden Gardens.
The report read “At a hearing conducted by the ICC Match Referee Clive Lloyd here on Sunday, Ganguly was found guilty for his team’s slow over rate”. As this was his second Level 2 offence within a 12-month period the charge is automatically upgraded to a Level 3 under the ICC Code. The punishment was criticised in the Indian media as being discriminatory.
Mr. Lloyd, born in Georgetown, Guyana, in the West Indies later played for the English county, Lancashire and now lives in the United Kingdom. He was also awarded the CBE (Commander of the British Empire) title in 1992.
Mr. Lloyd, a frequent visitor at the time to Sri Lanka filed action in the Courts of the United Kingdom and not in Sri Lankan Courts despite the fact that the incident occurred in Sri Lanka, all the Defendants lived in Sri Lanka, and The Sunday Times was printed and published in Sri Lanka. He limited his action to ‘publication’ in the United Kingdom saying the newspaper was widely circulated in that country, especially through its internet-edition and that his reputation in the UK had been tarnished by the article.
The Sunday Times submitted an affidavit objecting to the jurisdiction of the foreign Court and took no part in the proceedings when that Court proceeded to hear the case, the objection notwithstanding.
Mr. Lloyd sort to enforce the judgment under the Reciprocal Enforcement of Judgments Ordinance No. 41 of 1921 through the District Court of Colombo.
District Judge Wijeratne held that the law stipulated that an Enforcement Order should be applied for in the proper manner within 12 months, but Mr. Lloyd had not done so and no application was made to Court to extend this period. Despite this deficiency, the Court had initially permitted the registration of the judgment.
The Judge pointed out that even certified copies had been submitted at later dates, and the first opportunity the Respondents got to challenge the case was after the Court had registered the UK judgment.
He said that it was the duty of Court to act subsequently in the manner in which they should have acted initially (nunc pro tunc) once the defects in the application were brought to its notice and referred to precedents where the nunc pro tunc principle had been applied by Sri Lankan courts.
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The Respondents submitted that the document which Clive Lloyd had produced as being a certified copy of the judgment of the foreign Court had not been duly certified in terms of Section 78 (6) of the Evidence Ordinance which specifies the manner in which copies of public documents of a foreign country should be certified for the purpose of producing them as evidence in a case in our Courts.
Judge Wijeratne stated “… a judgment of a foreign Court could be registered if it is thought to be justifiable and convenient to do so in Sri Lanka taking into account all situations and circumstances of the case. In the Petition of the Petitioner (Mr. Lloyd) there is no statement included to the effect that it is justifiable to register the judgment in this Court. All three Respondents reside in Sri Lanka”.
It was held that due to the above circumstances it appears that it is not justifiable and convenient to register the judgment in Sri Lanka.
He also held that the absence of an application to extend the time limit of 12 months to register a foreign judgment, violations of the Evidence Ordinance, and for reasons that it is not justifiable and convenient to enforce the judgment in Sri Lanka, Mr. Lloyd’s application be dismissed with costs.
Mr. S. L Gunasekera with Mr. Maithree Wickramasinghe instructed by Mr. Dulip Jayamaha appeared for the Sunday Times.
Mr. M.U.M. Ali Sabry instructed by John Wilson Partners appeared for Mr. Clive Lloyd, CBE.