*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 46
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
fact imposed, it would clearly have been more easy
to justify. In general terms I see the force of the
proposition that official Test-players should not for
the future be permitted to make themselves available
to official Test cricket and to privately promoted
international cricket in turn and from time to
time, as and when they please. There would, I
think, have been much to be said for the reasonableness
and thus for the validity of a resolution
passed on July 26, 1977, of which the effect had
been merely to inform cricketers in clear terms that
any of them who thereafter contracted with and
elected to play cricket for a private promoter, such
as World Series Cricket, could not subsequently expect
to be engaged to play in official Test Matches
by any of the cricketing authorities of the Testplaying
countries.
Despite the representations of the West Indies,
however, this was not the form of the resolution
which the ICC chose to adopt on July 26. The resolutions
which, in fact, have to be justified are ones
which applied indiscriminately both to those who
had contracted with World Series Cricket before July
26 and those who might thereafter contract with
it. When the position is carefully analysed, I find it
impossible to see how resolutions in this extended
and wider form can be adequately justified on any
rational and objective grounds.*353
As a matter of fact, according to my findings, one
principal reason why the resolutions took this extended
form was because the ICC hoped that this
would induce players to withdraw from their contracts
with World Series Cricket. I have, however,
already held that such attempted inducement constituted
a tort as against that company. This cannot
therefore, in my judgment, and indeed is not, urged
as a justification for the resolutions taking the extended
form which they took. Another consideration
which, on the evidence, I do not doubt influenced
the minds of a number of those representatives
who were parties to the resolutions was that
they thought that the players who had contracted
with World Series Cricket deserved the ban. I have,
however, already expressed the view that such
players had committed no wrong of which the law
can take account and, in any event, this again was
not a consideration relied on in argument. I have
also no doubt on the evidence that a perhaps understandable
desire generally to make things as difficult
as possible for Mr. Packer actuated the minds
of a number of the representatives at the ICC meeting
on July 26. Once again, however, this is not a
factor on which the defendants are entitled to rely
or have relied in argument in the present context.
Faced with this dilemma, Mr. Kempster
sought to justify the imposition of the ICC ban on
this extended, retrospective basis on what, I think,
were logically the only substantially arguable
grounds. He submitted that the imposition of the
ban alike both on players who had contracted and
might contract thereafter with World Series Cricket
was necessary in order to provide the essential effective
deterrent against further recruitment to
World Series Cricket. He reminded me of the evidence
of a number of his witnesses in the context.
Mr. Hadlee, for example, under cross-examination
said that the purpose of applying the ban to those
who had already signed was both to penalise them
and afford an example to those who might consider
signing in the future. Mr. Chidambaram, under
cross-examination, said that a ban on persons who
might in future sign for World Series Cricket would
be “better and more forceful” as a deterrent, if it included
persons who had already signed. Mr. Short,
making much the same point, said, under crossexamination,
that if the ban had been applied
merely to those who might sign in the future and
had not been extended retroactively to persons who
had already signed, this would not have been equitable
in that “those who had signed too quickly, as it
were, would get off scot-free.” Likewise, Mr Bailey
said under cross-examination:
“I think that the problem here was that retroactive
action was felt to be the only possible course, for
the reason that those who had already signed would
otherwise have been in a more advantageous posi-
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