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John Wisden, the founder of this Almanack, was sued by a Mr Page in 1869 over the copyright presumed to exist in a cricket scorecard. Wisden won the case, but the first words of the judgement convey the tone of a weary judicial sigh: "This," said the judge, "is a very small matter."
Yet, in the years since then, the game in which the umpire's word is supposed to be unarguable law has developed a habit of arguing its most contentious disputes before judges in robes rather than umpires in white coats. Within the past three years cricket has been rocked by two high profile cases.
First, Devon Malcolm and Phillip DeFreitas sued Wisden's successors, the publishers of Wisden Cricket Monthly, over an article questioning their patriotism. The publishers dissociated themselves from the article and paid damages. Then Ian Botham and Allan Lamb got themselves embroiled in a marathon libel case against Imran Khan, which they lost.
There are many other aspects of the game which have not yet troubled the judiciary, but may do so before long. Cricketers expend a great deal of nervous energy resenting criticism by journalists. It is an occupational hazard; and a player cannot sue for libel simply because a writer says he has played badly and should be dropped.
But if the writer is motivated by malice, the doctrine of fair comment, which normally protects journalists, would not apply. Once there is a challenge to more than mere sporting prowess, as the Malcolm case showed, the courts could probably step in. The distinction between X looks as if he isn't trying and X isn't trying is one that commentators might bear in mind.
It is also easy to imagine a player going to court against the game's authorities. Allan Lamb and Jack Russell have both appeared to be close to a legal showdown over attempts to censor their autobiographies. The restraint of trade doctrine espoused in Greig v Insole could come to the aid of a player if the authorities attempted to deprive him of his livelihood because of something written or said, off the field.
Many people within the game have remained surprised that the Inland Revenue have never challenged the consequences of Reed v Seymour and have allowed benefits to remain untaxed. And, despite all the very small matters, there has been surprisingly little litigation over the horrendous injuries that can occur on the cricket field. The precedent set in the rugby based case of Smolden v Whitfield in 1996 could easily be applied in a cricketing context. Ben Smolden was crippled when a scrum collapsed. He sued the referee, who was alleged to have lost control of the game. Although the rugby authorities hoped that the courts would find some basis for giving referees immunity in this situation, substantial damages were awarded. An umpire who fails to give a batsman adequate protection against repeated dangerous bowling may find himself the next entrant in cricket's legal hall of fame.
The most significant cricketing decisions are perhaps:
Page v Wisden 1869
After the cricketer and entrepreneur Frederick Lillywhite was bankrupted in 1866, the copyright in the scoresheet he had designed was assigned to a Mr Page. However, John Wisden, who was then in business producing cricket equipment, sold a virtually identical scoresheet. Evidence was given by three eminent cricketers, Parr, Pickering and Dean, that scoresheets had been in circulation since before 1851. In the light of that, Page's claim was restricted to a copyright in the runs at the fall of each wicket section, which was a Lillywhite innovation. But the court rejected even this, and said no copyright existed in a standard scoresheet.
Reed v Seymour 1927
James Seymour was a Kent professional. In the words of the Law Lord, Viscount Cave, he played fine cricket, and in 1920 was given a benefit match which raised £939. The tax inspector assessed Seymour on that amount. He would be liable if it had been paid to him by way of salary of remuneration but not if it were a personal gift. In a decision that set a precedent for which countless cricketers have been grateful, the House of Lords held Seymour's benefit was an expression of gratitude from the public for the services he had already rendered, and was not intended to spur him on to further successes. Accordingly, it was purely a gift and he did not have to pay tax on it.
Re: Patten 1929
William Patten left £300 in his will to help establish a nursery fund at the Sussex County Club. For reasons that are buried in the obscurities of trusts law, the gift was only effective if this were a charitable purpose. A trust merely for the promotion of sport has never been charitable, although modern lawyers have no problems finding ways around that. It could, however, qualify if it had been set up for the supportation aid and help of young tradesmen handicraftsmen and persons decayed. Mr Justice Romer decided that young cricketers fell into none of those categories, and that it was thus not charitable, setting a precedent that prevailed until 1980, when the House of Lords decided the FA Youth Trust could be a charity.
Bolton v Stone 1951
On August 9, 1947, the day Denis Compton scored 137 not out in front of 30,000 spectators in a championship match at The Oval, a batsman at the Cheetham Cricket Club in Kent hit a six out of the ground. Unfortunately, his blow struck Bessie Stone, who had just left her house on the nearby Beckenham Road. She was injured, and sued the club. The House of Lords eventually determined that the club was not liable. About six balls had been hit out of the ground in the previous thirty years, so there clearly was some risk of injury to passers-by. But the Lords decided that the mere fact that an activity involves some risk to non-participants does not make those who carry it on negligent; the benefits of that activity have to be weighed against the risks. This was not a blanket ruling that a club is not liable for injuries caused in this situation: the length of the boundary, the volume of people in the area into which balls would be hit and the precautions taken would be taken into account in any given case.
Miller v Jackson 1977
In another case involving balls being hit out of the ground, a Mr and Mrs Miller sought an injunction to prevent the Lintz club in Durham playing on a ground next to their garden. Their house had been built four years previously; the club had played at the ground for 70 years. Although the highest possible fence was erected, about eight balls a season would still land in the Millers' garden: no one had been hurt, but they felt unable to use the garden when cricket was being played. The Court of Appeal awarded the Millers £400 damages for the nuisance but said there should not be an injunction preventing the game being played. A balancing act had to be struck between preserving the Millers' private rights and allowing a commendable communal activity to continue as it had done for decades.
Greig v Insole 1978
The longest piece of cricketing litigation occupied the High Court for 32 days and arose out of the businessman Kerry Packer's attempts to set up World Series Cricket, his alternative to Test matches, after he failed to gain exclusive television rights to Test cricket in Australia. The TCCB, supported by ICC, announced in 1977 that players remaining contracted with Packer would be banned from first-class cricket after October. Actions were brought to quash this ban by the players, in the names of Tony Greig, John Snow and Mike Procter, and by WSC. Doug Insole was the first representative defendant on the part of the TCCB.
Mr Justice Slade granted the orders sought. He held that by announcing the bans in advance the TCCB had been unlawfully attempting to make the players breach their contractual obligations to WSC. He also ruled that the ban would prevent the players from earning their living, and so was unlawful for being in restraint of trade. Indeed, the TCCB was held to have breached its own constitution by imposing the ban: it should just have considered the interests of English cricket, which would be only peripherally affected by WSC's activities in Australia. It was also obliged to consider the effect of depriving the cricketing public of seeing the players involved and the resulting loss of gate money. "Had the TCCB done so," said the judge, "it was inconceivable that it would have decided the ban was appropriate."
Lacey v Parker 1994
Although only a county court decision, Judge Hague's ruling in favour of the Jordans cricket club in Buckinghamshire was seen by many as proof that the doctrine of Miller v Jackson had survived. Neighbours had demanded that the club put up a 25ft fence, but the judge rejected the application, despite a decision in 1980, restricting noise made by a waterskiing club, which had seemed a little ominous for cricket clubs.
Richard Colbey is a barrister and enthusiastic cricket follower.