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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Burki v Seventy Thirty Ltd & Ors [2018] EWHC 2151 (QB) (15 August 2018) URL: https://www.bailii.org/ew/cases/EWHC/QB/2018/2151.html Cite as: [2018] EWHC 2151 (QB) |
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QUEEN'S BENCH DIVISION
The Law Courts, Winchester, SO23 9EL |
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B e f o r e :
Sitting as a Judge of the High Court
____________________
TEREZA BURKI |
Claimant |
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- and - |
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SEVENTY THIRTY LIMITED |
Defendant |
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- and - |
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SEVENTY THIRTY LIMITED |
Claimant |
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- and - |
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TEREZA BURKI |
Defendant |
____________________
Lisa Lacob (instructed by Keystone Solicitors) for Seventy Thirty Limited
Hearing dates: 18-22 June 2018
____________________
Crown Copyright ©
HHJ Richard Parkes QC:
Introduction
TEREZA BURKI
SEVENTY THIRTY AND SUSIE AMBROSE
TEREZA BURKI'S PRE-CONTRACTUAL DEALINGS WITH 70/30
PLEADED CASE ON REPRESENTATIONS BY 70/30
i) 70/30 had a database of individuals which included a substantial number of men who had paid membership of the agency's services ('the Male Membership');
ii) that the membership comprised men who were actively participating in its matchmaking services, or at least included a substantial number of men who were actively participating ('the Active Male Membership'); and
iii) that the Active Male Membership comprised men who could reasonably be described as wealthy.
"The service provided by [70/30] is an exclusive, 'top of the line matchmaking service' based on 'unique psychology matching', where each member is screened by being asked explicit and detailed questions about what it is they are looking for in a match.
This screening for each member is thorough which will enable [70/30] to match an individual accurately to a member of the opposite sex. [Ms Burki] recalls being asked questions about herself and also about her preferences for a potential match. These topics included:
- her preferred physical features in a man;
- her hobbies/the hobbies she would like her matches to have;
- her goals and dreams in life;
- her preferred age group, race and social status of her matches; and
- her desire to have more children in the future.
A number of [70/30's] members were previous clients of Gray & Farrar (another dating agency) who had approached [70/30] after being dissatisfied with the other agency.
[70/30's] clients all led very affluent lifestyles and due to some of the individuals being high profile they preferred to be matched discreetly. Therefore, a psychologist in the field would determine an individual's personal interests and motivations through a series of questions and then create a profile for 70/30's database. This was as opposed to an individual exposing themselves to dating individuals who were not specifically chosen.
All individuals were deeply committed to the process and nothing was left to chance.
The service, at the price of £18,000 (albeit reduced in [Ms Burki's] case), would not be matched by any other dating agency service."
i) paid for and were actively participating in 70/30's services; alternatively, if they had not paid, were actively participating in those services;
ii) in either case, had criteria which sufficiently matched Ms Burki's.
i) As to the Online Representation, 70/30 did not have a substantial number of male members.
ii) As to the Membership Representations,
a) 70/30 did not have a substantial number of male members; or in any event
b) 70/30 did not have a substantial number of male members who were actively participating in 70/30's services and could reasonably be described as wealthy.
iii) As to the Suitability Representations,
a) 70/30 did not have a substantial number of male members; or in any event
b) 70/30 did not have a substantial number of male members who were available to be matched with Ms Burki, having regard to (A) the activity of such men within 70/30's services, (B) the comparison between Ms Burki's criteria and the attributes of such men, and (C) the comparison between the criteria of such men and the attributes of Ms Burki.
iv) As to the Profiles Representations,
a) Some or all of the men whose profiles were included were not members of 70/30's services; or
b) Some or all of the men whose profiles were included were not actively participating in 70/30's services at the relevant time; or
c) Some of the men whose profiles were included were in any event not available to be matched with Ms Burki, due to discrepancies between their criteria and her attributes.
The contract
MEMBERSHIP
Lemarc, I see that you are unwilling to settle, but be aware you have already lost 15,000 of fees due to my advice from a future client (sic) and it isn't over. Advise Susie to reconsider or I shall make sure you guys are out of business pretty soon, another 5 clients are joining me.
Asked about that behaviour, she said that she was 'disappointed and probably over-excited'.
OTHER CLIENTS OF 70/30
Lilia Severina
Alexandra Wilson
EMMET COLVILLE
SUSIE AMBROSE
SUBMISSIONS & CONCLUSIONS
The representations
"[34] On behalf of 70/30 it is said that the part of the Response I have quoted in para 31 does not support the Membership Representations as pleaded (save in respect of that part of them which refers to the wealth of the membership, which is conceded by 70/30 to have sufficient evidential support to be taken to trial). It is said that there is no reference to a substantial database or its content or whether the men on the database had paid for 70/30's services, or whether those men, or a substantial number of them, were actively participating in its services.
[35] I reject this submission. In my judgment, a reasonable person would have understood from the words used, in the context in which they were used, that Mr Thomas was representing that 70/30 had a database of members which included a substantial number of men; that these men or a substantial proportion of them were actively participating in 70/30's matchmaking services; and that these active members could reasonably be described as 'wealthy', or that these things could be implied from what Ms Burki said in her Response Mr Thomas had said at their meetings.
[36] I start with the context in which Ms Burki was meeting Mr Thomas. Mr Thomas was the representative of a company which, as I have already quoted, marketed itself as having 'an international membership of affluence and influence' and whose members 'value discretion and expect a top level of service in exclusive matchmaking, as they do in all the other aspects of their affluent lives.' It seems to me that these statements, together with the fact membership fees were in the order of the £12,600 paid by Ms Burki, together with the statement in the Response that Mr Thomas had said 70/30's members 'all led very affluent lifestyles', are more than sufficient to support the pleaded representation that the male members could reasonably be described as wealthy. I think most people would agree that a person who has thousands of pounds to spend on dating agency fees can be described as wealthy.
[37] Next, as a matter of fact, it is not correct, as 70/30 asserted in correspondence on 21 November 2017 in an argument partly mirrored by Mr Cole in the application before me, that the Response made no reference to a substantial database. Firstly, in the third to last paragraph that I have already quoted she said that Mr Thomas had said (emphasis added):
"… a psychologist in the field would determine an individual's personal interests and motivations through a series of questions and then create a profile for the Defendant's database."
[38] Even without this explicit reference to a database, it is plain that that is what Mr Thomas was talking about. A database is simply a collection of information that is organized for search and retrieval by a computer. 70/30 held information on its members, and obviously that information is held on a computer (as opposed to, for example, a punched card index).
[39] As for the size of the database and whether or not it was substantial, and whether its members were active, again the context is important. Ms Burki was interested in knowing what service 70/30 could offer her, and how likely she was to meet a suitable partner if she became a member. Mr Thomas' goal was to sign her up as a member. As is pleaded in the Re-Amended Particulars of Claim at para 6, on its website, 70/30 said that it has been in operation since 2001 and that it had found partners for 'thousands of members'. From that context it can be reasonably understood that when Mr Thomas explained the matching process, and the detailed information it required about her so that she could be matched with someone suitable, he was talking about a substantial database, ie, a substantial number of people to whom her profile would be compared, and that given the thoroughness of the process, she would be likely to find a match. He can hardly be understood to have been representing that 70/30 only had a few male members on its books, given what he was trying to achieve at the meeting.
[40] As to the level of active participation of the membership, the gist of the statement by Mr Thomas, 'All individuals were deeply committed to the process and nothing was left to chance', seems to me to reasonably capable of being understood to mean that the membership, and a substantial part of the male membership, actively participated in 70/30's service.
[41] I therefore reject 70/30's case on the Response and the submission that it does not support Ms Burki's pleaded case on the Membership Representations.
[42] But even if I am wrong about that, in my judgment Ms Burki's witness statement provides a sufficient evidential foundation for her pleaded case. (Reference was made to paragraph 6 of her witness statement).
Truth or falsity of the representations
Knowledge of falsity
Damages for deceit
Exemplary or aggravated damages
Damages for distress
SEVENTY THIRTY LTD V TEREZA BURKI
Words complained of
A scam, no database, clients use to finance the lifestyle of founder, without consideration for results or even ambition to achieve such, huge employee turnover, four in six months alone, possibly five
As a client, I can testify that one is lured to enlist their services and pay a hefty sum of £18,000 based on a portfolio of eligible bachelors who once you have paid, are no longer available, already marched (sic), travelling, etc etc. You get matched with people who paid nothing, do not correspond to your clearly defined criteria, all in the sake of (sic) the company being able to put a tick to each of their eight obligatory introductions and often you are pushed to accept those matches and entreated in all possible ways. Which I didn't do and claim my money back from a service which to me and four other clients – acquaintances of mine, is fraudulent, and solely focussed on getting their fee but far from giving anything back or delivering on their image skilfully created in the media.
Reference
Extent of publication
Meaning
Despite any appearances to the contrary, the claimant does not have the means to operate an effective matchmaking service, and does not intend to do so but is instead engaged in a fraudulent scheme to extract money from its clients for the benefit of its founder.
i) The claimant induces clients to part with very substantial sums of money by falsely and dishonestly representing the availability of suitable matches;
ii) Having paid over those sums, clients are put in touch with and coerced to accept unsuitable matches, so that the claimant can purport to have complied with its obligations;
iii) The claimant operates the business fraudulently, extracting money from clients without providing (or seeking to provide) the promised service in return.
(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" (see Eady J in Gillick v Brook Advisory Centres …) (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense": Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.
i) induces potential clients to pay very substantial fees by falsely representing the availability of suitable matches;
ii) once the fees are paid, introduces its clients to and coerces them to accept unsuitable matches who have not paid any fee and do not correspond to the clients' criteria, in order to advance the specious claim that it has performed its contractual obligations;
iii) appears to be solely focussed on obtaining its fees, without giving anything in return, and to be operating in a fraudulent way.
Whether defamatory at common law
Serious harm and serious financial loss
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
… it may be that in some respects the position with regard to bodies trading for profit, under s1(2), will be different. I say nothing about that subsection, which clearly is designed to operate in a way rather different from s1(1).
Three things can safely be said about s 1(2). First, that in this context as in s 1(1) "serious" is an ordinary English word, to be given its ordinary meaning; it means something more weighty than "substantial": seeLachaux
[44], Brett Wilson [30]. Secondly, whether loss is "serious" must depend on the context: Brett Wilson [30]. Thirdly, that the word "likely" in s 1(2) bears the meaning of liable to, or having a tendency to:
Lachaux
[50]; the word cannot bear different meanings in two adjacent subsections.
Defences of truth and honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
a. any fact which existed at the time the statement complained of was published;
b. anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
…
(8) The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
1. Google review
The natural and ordinary meaning of the Google review was that the defendant had personal experience of using the claimant's services and her comments in the review were based on that experience (this being the nature of a review), and as a result of that experience she believed the following facts and held the following views:
(i) The claimant did not have a sufficient database of available individuals to operate an effective match-making service. [Fact]
(ii) The claimant receives money from its clients which ultimately enrich (sic) the founder of the claimant. [Fact]
(iii) The claimant made no apparent effort to achieve results commensurate with its advertising and assurances to clients or potential clients. [Opinion]
(iv) For the above reasons, the claimant did not provide value for money and was in this sense a 'scam'. [Opinion]
2. Yelp review
(a) The natural and ordinary meaning of the Yelp review was that the defendant had personal experience of using the claimant's services and her comments in the review were based on that experience (this being the nature of a review, and moreover expressly stated), and as a result of that experience she believed the following facts and held the following views:
(i) The claimant induces prospective clients to pay (at least as much as £18,000) for its services by providing details of a portfolio of individuals, who are at least impliedly suggested to be current active users of the claimant's services but are in fact not; [Fact]
(ii) The claimant introduces (or seeks to introduce) clients who have paid as much as £18,000 to individuals who have paid nothing and who do not correspond to criteria clearly defined by the paying client; [Fact]
(iii) The claimant provides such introductions (or attempted introductions) in order to fulfil, or purport to fulfil, its contractual obligation; [Fact]
(iv) The claimant 'pushes' and 'entreats' its paying clients to accept such introductions. (For the avoidance of doubt, it is averred that the relevant words bear their own natural and ordinary meanings, which it is denied have the same meaning as the word 'coerce'); [Fact and opinion]
(v) The claimant does not deliver a service commensurate with the price paid by paying clients or with the media representation that the claimant has created; [Opinion]
(vi) The claimant's activities, in the subjective view of the defendant, could fairly be described as 'fraudulent', for the reasons set out in the Yelp Review and in particular because the defendant felt that she ought fairly to be refunded on the ground of the deficiencies of the claimant's service. (For the avoidance of doubt, the defendant specifically relies on the words 'to me' as an express qualification that this was the defendant's subjective view). [Opinion]
(b) Further to the above statements of the defendant's own views, the natural and ordinary meaning of the Yelp review extended to a statement that she had four acquaintances with personal experience of using the claimant's services and that as a result of their experiences they too had formed the views at (v) and (vi) above. [Fact]
Defence of truth
In particular, the following imputations conveyed by the reviews … were wholly or at least substantially true:
PARTICULARS OF IMPUTATIONS OF FACT
(a) The defendant had personal experience of using the claimant's services.
(b) The claimant receives money from its clients, including sums at least as high as £18,000.
(c) The founder of the claimant is, or was at the material time, ultimately enriched to some extent by the activities of the claimant.
(d) Prior to the defendant entering into a contract with the claimant, the claimant (by its employees or agents) had shown to the defendant a portfolio of clients, but after the defendant had paid the contract price it transpired that none of these particular clients were available to be introduced to the defendant.
(e) The claimant had been unable or unwilling to introduce the defendant to any clients who corresponded with her criteria defined at or around the time the defendant entered into a contract with the claimant.
(f) The claimant either knew that it would be unable to make such introductions, or did not believe it would be able, or was reckless in caring whether it would be able; alternatively, it deliberately chose not to make such introductions,
(g) The claimant had details of individuals who had paid nothing, and introduced such individuals to the defendant, a paying client. The claimant did rely on these introductions as fulfilling, or purporting to fulfil, its contractual obligation to make introductions.
(h) The defendant genuinely held all the subjective views expressed in the reviews.
(i) The defendant had four acquaintances who also had personal experience of using the claimant's services and who all genuinely held the subjective views which the defendant referred to them as holding.
Defence of honest opinion
(a) The defendant's opinion of the deficiency of the claimant's services, including the effort which the defendant appeared to make to provide the service as represented.
(b) The defendant's opinion of the lack of value for money provided by the claimant to paying clients, including in particular [Yelp review only] the defendant's opinion that she ought fairly to be refunded the contract price.
(c) [Yelp review only] The defendant's opinion of the claimant's attitude to paying clients, including in particular the defendant's opinion that this could fairly be described as 'fraudulent'.
Conclusions on truth and honest opinion: Google review
Special damage - Google review
(1) First client – VS (22 April 2016)
As I told you on Wednesday I am not interest (sic) to join your company as I am concerned about what I read on Google. I don't know if 'Tereza Burki' is real person or not, but what she wrote made me concerned.
(2) Second client – MJ (3 June 2016)
Unfortunately, I did some investigation and I have found some unpleasant coments (sic) from what I can only assume your ex clinets! (sic) One particular lady called Tereza has left comments on a few websites, and as her post is agressive and atacking (sic), I can only assume that she is very angree (sic). I do earn a lot of money but still to part with €12,000 is a big question for me particularly when I read such a unpleasant coments (sic) about your company.
General damages - Google review
Conclusions on truth and honest opinion - Yelp review
MALICIOUS FALSEHOOD
CONCLUSION