New Zealander Chris Cairns claimed that a Twitter message posted by cricketing administrator Lalit Modi accused him of match fixing and was libellous.
The High Court rejected attempts by Modi to have the case stopped because so few UK Twitter users were likely to have seen the message. An expert provided by Modi estimated that only 35 people saw the message, but the High Court ruled that this was not decisive of the issue.
Modi argued that, as in a famous case between Yousef Jameel and Dow Jones in 2005, the damage from any libel case would be so small as to be not worth fighting a case over and so any case would be an abuse of the court process.
"It would not be right to permit this action to proceed," said the Jameel ruling. "It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake."
Cairns's expert estimated the audience for the tweet to be around 100, by looking at the number of Modi's followers in the court's jurisdiction. He accepted that not all of Modi's followers would have seen the tweet directly, but he argued that some people would have received a communication of it by other means.
Mr Justice Tugendhat ruled in the High Court that the number of people who saw the message was only one of a number of considerations in a defamation case.
"In any event, the Jameel type of abuse of process does not depend on numbers alone," he ruled. "[Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee."
Mr Justice Tugendhat said that a real threat in a case such as this was that the statements at the centre of the libel claims might be more widely disseminated, and that the measure of the damage to the allegedly libelled person is about more than just the number of people who saw the original post.
"A claimant's primary concern in a libel action is vindication, not damages for what has been suffered in the past," he said. "So the damage that has occurred before the action is brought may not give an indication of the importance of the claim."
"Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction," Mr Justice Tugendhat ruled. "So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publications to a similar effect being made in the future."
"But that is subject to there being be a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction," he said.
The judge said that he did not want to risk ruling on issues of fact at a preliminary hearing, and that a full case would be the place for such issues to be decided.