HHJ Richard Parkes QC:
Introduction
- Gertrude Stein quipped that whoever said money can't buy happiness didn't know where to shop. This case is about a woman looking for romantic happiness who says she was tricked into shopping in the wrong place, paying a large sum to a dating agency which, she says, made promises but failed to produce the goods.
- Tereza Burki sues a dating agency, Seventy Thirty Ltd (70/30), for deceit and misrepresentation, and seeks the return of her membership fee, and damages for distress; the agency, in a separate action, sues her for libel and malicious falsehood in connection with two online reviews of its service which Ms Burki posted. The two actions were tried together. Ms Burki was represented by Jonathan Edwards, and 70/30 by Lisa Lacob.
- Ms Burki gave evidence herself. Her other witnesses were Boriana Errante, a Bulgarian woman living in Geneva, who was an old friend from their youth; Lilia Severina, a woman who got in contact with Ms Burki after what she said was a bad experience with 70/30; Alexandra Wilson, another ex-member of the dating agency; and Emmet Colville, a young man who had worked for 70/30 as a 'matchmaking specialist' between 8 December 2014 and April 2015.
- The witnesses for 70/30 were Susie Ambrose, who founded, owns and is a director of the agency, and Craig Males, the agency's accountant. The managing director at the time with which this action is concerned, a Mr Lemarc Thomas, was unavailable to give evidence. Ms Ambrose told the court that he now lives abroad and was unwilling to spend time becoming involved in this litigation. If that is correct, I find his attitude astonishing, given that it is Ms Burki's case (as Ms Ambrose must have told him) that he made misrepresentations to her that he knew to be false.
- None of the current staff was working for 70/30 when Ms Burki was a client. It appears to have been for that reason that none of them gave evidence.
- The court heard a great deal about a number of men whose details, or 'profiles', were either supplied to Ms Burki or, on the agency's case, were available to be supplied to her as potential matches. At the start of the trial Ms Lacob, for the agency, applied for an order under CPR 39.2(3)(c) for the trial to take place in private. Her application was founded on an understandable concern for the confidentiality of information held about the agency's clients. A number of client profiles were likely to be contentious during the trial, and she feared that some of the individual clients might be identifiable from their initials and other information revealed about them. I refused the application. It appeared to me that the proper way to protect the confidential information of the relevant clients was either to refer to them simply by their initials, without venting in open court any other information which might make them identifiable, or (if Ms Lacob felt that was insufficient) for her to prepare a table of numbers or letters to be used to refer to each of them, so that not even their initials need be used in open court. In the event, Ms Lacob was content to refer to them by their initials. On no view was there any need for the trial to take place in private.
TEREZA BURKI
- Tereza Burki is a divorcee of 47. She has three children from her previous marriages. She lives in Lennox Gardens, between Chelsea and Knightsbridge. From 2008, she was looking for a new partner.
- Her requirements were not modest. What she wanted in a partner was a 'sophisticated gentleman', ideally employed in the finance industry. It was important to her that her partner should lead a 'wealthy lifestyle', and that he should be 'open to travelling internationally'. For that reason, it would also have been appealing to her that he should have 'multiple residences'. Above all, the most important characteristic that she looked for in a prospective partner was a preparedness to have more children. She had always wanted four.
- The way in which she expressed her criteria in her Re-Amended Particulars of Claim (RAPC, para. 12) was to stipulate 'openness to having children' as a necessary criterion, and three overlapping qualities as 'preferred criteria': they were (i) a lifestyle similar to or more affluent than her own, (ii) a relatively high degree of remuneration, such as might be typical in finance or a similar field, and (iii) resources and willingness to travel internationally, and in particular, ideally, the possession of several homes, or, as she preferred to put it, 'multiple residences'.
- She went first to an agency called Gray & Farrar, where for a fee of £8,000 she was introduced to a number of men with whom she became friends; but none of the introductions led to a romantic relationship. She said that all the men she met had paid for membership: they had compared notes on the fees charged.
- It was against that background that in 2013 she first approached 70/30. Before she did so, she carried out some online research. She looked at the agency's website, which told her that it was an 'Exclusive Matchmaking and Elite Introduction Agency' and offered a 'quintessential, world class matchmaking service to a sophisticated and particular clientele'. Its members, so the website stated, were 'high net-worth individuals'. She also looked at third party websites where she found reassuring reviews. She was encouraged by what she read.
SEVENTY THIRTY AND SUSIE AMBROSE
- Susie Ambrose is a psychotherapist by training. She founded 70/30, which was incorporated in 2001. Its first members were clients of Ms Ambrose's counselling practice, for whom she started matchmaking. It was her evidence that its dating model was based on an integrated approach which looked at the values, lifestyle, beliefs and goals of its members, and it had succeeded in matching at least 6,429 individuals who had gone on to have long-lasting relationships. 63 babies had been born as a result of its introductions.
- She was the managing director of 70/30 until March 2011, but gave up that post when she went abroad (it appears to Croatia) to adopt her daughter. Nonetheless, she remained a director and she retained ultimate control of the business, of which she was and still is the sole shareholder. She kept in touch with the business through her managers, and would generally only be in contact with matchmakers if Mr Thomas was away. It seems that Mr Thomas took over from her as managing director in 2011, but left the company in 2016 to live with his partner in Sweden. As I understand it, the senior management roles are now performed by Georgina Barnett, who is head of membership, and Lorraine Donovan, who is head of operations, and manages the matchmakers.
- Ms Ambrose's evidence was that the agency currently employs 10 staff and 19 freelance consultants round the world. All of the full time staff worked on matchmaking, including Mr Thomas, when he was managing director. He dealt with people categorised on the database as 'hot': they were good looking, high profile people. She said that none of the staff was being called as a witness, because they all started to work for the agency after May 2015, when Ms Burki disengaged with the matchmaking process. She had asked Mr Thomas to give evidence, but he told her that he did not want to be involved: he had moved on and lived abroad and could not remember the details of the operations of 70/30 between 2013 and 2015. She understood that.
- According to Ms Ambrose, the agency maintains a database of men and women who could be described as wealthy and/or successful. Before signing up a new member, the agency looked at their profession, property and assets. In cross-examination about the checks that were made, she said that members used to have to show £1m in liquid assets, and give values of properties and works of art, until potential members were frightened off by competitors who told them that 70/30 was 'digging into their bank accounts'. Mr Thomas therefore decided in about 2012 or 2013 to do background checks, for example by reference to the Land Registry. All members had to give information about their work, and they had to be wealthy. They had to pay a high fee, and checks, including credit checks, were made on them. Asked about the evidence of Alexandra Wilson, a member from 2013 to 2015, that she herself had negligible wealth, Ms Ambrose said that she would have to check the database to know whether that was true, but she knew that the database showed that she had bought a flat in an expensive area. Ms Wilson must either have owned it outright or, if she needed a mortgage, she would have had a substantial income. It was unfortunate that Ms Wilson was not asked any questions about those assertions. Ms Ambrose was also questioned about Ms Burki's wealth, and asked whether she, like 70/30's other clients, was a millionaire. She answered that Ms Burki had said her ex-husband had £200m, and she had a lavish lifestyle that included belonging to expensive clubs, ski-ing and going on cruises, wearing designer clothes. In the circumstances, she would consider her well off. She did not believe that Georgina Barnett (the current head of membership) would have been content with a potential member claiming to have a lot of money, without some checks being made.
- The agency's database, which had grown from the group of counselling clients with whom Ms Ambrose started business, consisted of (i) current members (paying members who were entitled to receive its matchmaking services), (ii) former members (whose contracts had expired but were still available to be matched), and (iii) individuals who had been approached by the agency, had not entered into any contract with the agency, but were prepared to be put on the database to be matched.
- Explaining the third category, Ms Ambrose said that there were successful people who wanted relationships and were good matchmaking assets, but did not want to join dating agencies, yet were prepared to consider matches offered by 70/30. These she described as 'headhunted', and she regarded them as a significant asset. They might not necessarily be wealthy or successful: not all her members were looking for money, so her pool included people who were interesting but not necessarily rich. By including former members and headhunted individuals in the database, 70/30 was able to search much more widely for suitable matches than would otherwise be possible. This arrangement was, she said, explained to prospective members, and made clear in contractual documentation. The agency also offered a three month trial and one introduction to some individuals, in the hope that they would then sign up for full membership.
- It was an important part of the matchmaking process that a member's initial preferences were often modified or discarded as matters proceeded. She gave the example of members widening a narrow preference for age range after being offered matches with people who otherwise suited them very well. For that reason, she said, the service was interactive and personalised, so that the agency could support and challenge members to help them find a successful relationship. Similarly, a request to be supplied with 10 profiles at once (made by Ms Burki, and refused) would never be entertained: that would be tantamount to computer dating.
- Ms Ambrose insisted that 70/30 would never guarantee that it could find a match that would 'tick all the boxes' of a member, since the membership was constantly changing (as people met partners or their contract ended or they became inactive, for whatever reason), and that no-one could be sure that two individuals would wish to meet. In addition, she observed, some members have unrealistic expectations, and people in a state of emotional flux can find it difficult to accept that someone to whom they are introduced is not drawn to them.
- She explained the levels of membership (currently Gold, Diamond and Black) and the processes involved in making matches. Ms Burki selected Gold, which is supposed to offer searches within the UK only. The Gold agreement offered at least 12 months' active membership, but that was extendable until a minimum of 8 introductions had been made or until the expiry of 24 months. The process took time and involved feedback and possibly the modification over time of the member's preferences.
- The first step in the process was to produce a profile on the new member, by entering all the details given during the initial interview and creating a record on the database. The matchmaker would search the database for possible matches, using certain criteria stipulated by the member (such as age, preferred age range, height, location, religion, whether or not previously married or interested in marriage or having children, education level, ethnicity and the like). The matchmaker then had to work on the profiles produced by the search, comparing the details of all the people identified with the criteria and wishes of the member, and eliminating those who would probably not, for whatever reason, want to meet the member. That process would produce a shortlist of possible matches, and the profiles of the shortlisted individuals would be supplied to the member, one at a time, to consider. If the member stated that they wished to meet the shortlisted person, the member's profile would be passed to that person. If and when both sides had agreed, the matchmaker made an introduction by giving each the other's contact details.
TEREZA BURKI'S PRE-CONTRACTUAL DEALINGS WITH 70/30
- Ms Burki first met a member of 70/30's staff on 22 March 2013. This seems to have been a woman called Landis Maugan. Ms Burki was told about the agency's psychological approach to matchmaking, which was said to distinguish it from its competitors and involved the creation of a psychological profile, taking into account all aspects of the individual's personality and their preferences in a partner. The agency would use those preferences as a basis for determining which members might be well suited to each other. She wanted more information about the agency's database, and was told that there were a lot of men available on the database who were actively involved in the dating process, who had been vetted by the agency and were wealthy, with 'affluent lifestyles'. The ratio of men to women was, she was told, about 1:1.
- She said that she was shown a number of men on an iPad, who were described to her (by Mr Lemarc Thomas, she thought) as being on the books of the agency. They appeared to her to be wealthy, and they were described to her as leading 'affluent lifestyles'. It may not matter when she was first shown these men, but I note that it is fairly clear from 70/30's records that four months later (15 July 2013) Mr Thomas had still not met Ms Burki. It may be that she was not shown them until rather later; or it may be that she was shown them by Landis Maugan. It does not matter.
- Despite the positive impressions that she took away from the first meeting, she did not join 70/30 at the time. She was not yet sure that it was the best way for her to meet the right man.
- She certainly met Mr Thomas, possibly for the first time, on 19 November 2013 (14 November, according to Ms Ambrose). She went to the meeting with her friend Boriana Errante. Mr Thomas assured the women that the male members of 70/30 were 'wealthy'. He showed them a profile of a man in his early 50s whom he described as well-regarded, wealthy and intelligent, and as a member who was actively seeking a romantic partner like Ms Burki or Ms Errante. That appears to have been PC, a man who was available at the time, as Ms Burki accepted. Ms Burki was impressed by Mr Thomas' information that some people paid a membership fee of up to £50,000 or £100,000. That showed her that 70/30 members were affluent and serious about the dating process. That was important to her, because payment of a fee, especially a substantial one, indicated investment in and commitment to finding a partner.
- Ms Errante gave evidence about this meeting. She is a Bulgarian woman of 49, and has been a friend of Ms Burki for some 28 years. Her witness statement was very much more fluent than her spoken English, which was poor. She could not understand questions of any complexity and could not express herself easily. She explained that she had written her witness statement herself, although her daughter had helped her. I do not think that she could possibly have composed it otherwise.
- She said in her witness statement that she and Ms Burki wanted to know from Mr Thomas what kind of people were paying members of the agency and how much one had to pay to join. It was important to her that she should be matched only with people who were similarly 'invested' in the service. That was because she felt that if people had paid a substantial amount it would mean that they were interested. She also asked Mr Thomas if the men would be willing to meet women in her and Ms Burki's age group, and if they would find their profiles attractive. She said that when Mr Thomas showed them the profile of PC, he told them that PC was 'at a very high level socially and financially' and had a very high intellect, and was seeking someone like Ms Errante and Ms Burki. He also said that most of the men were similar to that profile, would really enjoy meeting either of the women, and would be happy to have a family. The men available, he said, were top class intelligent men, and the agency only accepted men who were engaged with the dating process, and checked them out beforehand. Ms Errante decided not to join, but to wait to see how it worked out for her friend before committing herself.
- Ms Burki still did not join 70/30, but she remained in contact with Mr Thomas. It was probably in April or May 2014, she thought, when she gave him details (set out fully at [8] above) of the qualities which she sought in a romantic partner, which were broadly that he should be wealthy with a lifestyle to match, including international travel and a number of homes. But above all, he had to be prepared to have more children. She emphasised that meeting because by the time she agreed to join 70/30 in December 2014, Mr Thomas had known for seven months what sort of partner she was seeking, and had consistently told her that the agency's database contained a substantial number of men who were suitable for her (and vice versa).
- At one of the 2014 meetings, probably on 9 October, Mr Thomas showed Ms Burki on his iPad a number of what she again called 'profiles' of men whom he described as being 'on the books', and 'part of the pool of clients on the database'. He assured her that the agency had men who were exactly what she was looking for.
- This was the second time when she had been shown such profiles. The profiles shown to her in October 2014 were very similar to the ones she had been shown earlier. They all appeared to her to be respectable, charming, successful, eligible, wealthy and genuinely seeking a romantic partner. She believed that the agency's database contained eligible men whom she would be interested in meeting and who were also interested in meeting her, and she told Mr Thomas that some of the men would be perfect for her. He urged her to hurry up and join, so that these men would not be 'snapped up' by someone else.
- On 10 October, after the 9 October meeting, Mr Thomas emailed her to say that he would break the rules for her by showing her the photograph of a man, KW, who he said would be ideal for her. (It was not clear how this could have entailed breaking any rules, because it was not the first photograph that she had been shown, and in her evidence, Susie Ambrose did not suggest that he was doing anything wrong.) KW was pictured perched on the bonnet of an expensive car in front of what appeared to be a substantial house. Tereza Burki found him attractive. Mr Thomas had told her that his profile fitted her criteria, in that he led an 'affluent lifestyle' and 'owned several residences'. In the email, he told Ms Burki that KW had achieved great success in his field and now led a 'very international lifestyle' between several countries. I note that in her written evidence Ms Burki stated her belief that notwithstanding her stated criteria, KW would not have been open to having more children, because he already had three. But she later accepted that the fact that (like her) he already had three children need not have been a bar to having more. She accepted that he would on the face of it have been suitable.
- It is obvious (as Mr Thomas warned Ms Burki by email of 20 October, and as she accepted in cross-examination) that no guarantees could be given that KW – or for that matter anyone else - would still be available when she became a member. Anyone on the 70/30 database might at any time become unavailable, whether because they had found a partner or had to travel abroad or had insufficient time or chose for any other reason not to make themselves available.
- In her witness statement, Ms Burki summarised her impressions by stating that the various profiles shown to her had shown the individuals to be 'professional and charming'. She was impressed by the photographs taken, which appeared to her to be 'professional', and showed that 70/30 took great care in how it presented its male members. I should mention, although I do not think it material, that her written evidence seemed to suggest that these profiles were in a documentary form, albeit shown to her on an iPad. But it emerged from her oral evidence that the 'profiles' she was shown were photographs, accompanied by a verbal description.
- She said that she was not told by Mr Thomas that the 70/30 database included men who had been 'headhunted', as Ms Ambrose put it. Had she known that, she would not have joined, because to her, commitment to the dating process was highly important, and men who had been headhunted and had not paid a fee would not have the commitment of someone who had paid a substantial amount to become a member. It is clear that as far as Ms Burki was concerned, when Mr Thomas was telling her about the men on 70/30's books, he meant paid-up members who were fully committed to meeting a prospective partner. On her evidence, which of course was uncontradicted by Mr Thomas, she had every reason to understand him as she did.
PLEADED CASE ON REPRESENTATIONS BY 70/30
- Ms Burki pleaded a number of representations made by 70/30, either online or through Mr Thomas.
- It is her case that 70/30's website at all material times made a number of claims for its service. This is not in dispute. It was said to be an 'Exclusive Matchmaking and Elite Introduction Service', and it was claimed that 70/30 were the experts, at the top of the field, 'the ultimate matchmaking service, with a wealth of experience in matching thousands of members with partners from their international membership, consisting of men and women of affluence and influence'. Their members were said to be 'high net-worth individuals from a variety of unique backgrounds … (They) value discretion and expect a top level of service in exclusive matchmaking, as they do in all the other respects of their affluent lives'.
- These and similar claims made by 70/30 on its website constitute 'the Online Statements'. They were said to amount to a representation of fact ('the Online Representation') that 70/30 had a substantial membership, including men and women who could reasonably be described as 'affluent' or 'high net-worth'.
- It is also Ms Burki's case (Re-Amended Particulars of Claim [RAPC] para 9) that Mr Thomas represented to her on a number of occasions during their meetings that
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.
- Following the RAPC, I shall refer to these as 'the Membership Representations'.
- 70/30 sought further information under CPR 18.1 about the Membership Representations. Ms Burki was asked what words Mr Thomas had used. She answered that she clearly recalled the gist of what he said at the meetings, all of which took place at 70/30's offices in Knightsbridge. Where she could recall precise words used she put them in inverted commas. They were stated expressly, not by implication.
"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."
- On her case, Ms Burki spelled out to Mr Thomas her criteria for her ideal partner (see paragraph [8] above). Her necessary criteria were that he should be male and open to having more children, and her preferred criteria were that he should have (i) a lifestyle similar to or more affluent than her own, (ii) a relatively high degree of remuneration, such as might be typical in finance or a similar field, and (iii) resources and willingness to travel internationally, and in particular, ideally, the possession of multiple residences.
- It is her case that Mr Thomas told her (RAPC para 13) that the active male membership included a 'substantial' number of men who were 'suitable', which impliedly meant that the active male membership included a substantial number of men who were wealthy and either fulfilled the 'preferred criteria' or were reasonably close to doing so. Moreover, she contends that this entailed an implied representation that Mr Thomas had reasonable grounds for his statement, specifically that the active male membership included a substantial number of men who fulfilled the necessary criteria and either fulfilled her preferred criteria or were reasonably close to fulfilling them.
- She contends that in answer to her concern that many men aged 40-60 sought women younger than themselves and younger than her, Mr Thomas reassured her by expressly representing that this was not the case with 70/30's clients, and that there were several current male members whose own criteria were such that she could be matched with them. I refer to these representations as 'the Suitability Representations'.
- She relied upon having been shown on two separate occasions profiles of men who she agreed either fulfilled her criteria or were sufficiently close to fulfilling them. It was her case that Mr Thomas represented to her on each occasion that the profiles were of active male members, alternatively were individuals who actively participated in 70/30's services, and whose own criteria sufficiently matched her profile.
- On that basis, she pleaded that Mr Thomas had represented ('the Profiles Representations') that men shown in the profiles had
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.
- Similar further information was sought in respect of the Profiles Representations. In answer, Ms Burki made clear that Mr Thomas made the representations expressly, and that she recalled that he said
- 'We have the bachelors you dream of meeting', or very similar words;
- [70/30] could match [Ms Burki] with 'the perfect man' based on her 'exact criteria'; 'the perfect for you gentleman' (sic)
- 'We offer the crème de la crème' matches for our members
- [70/30] referred to the 'perfect man' as being a man with whom [Ms Burki] could start a family.
- It was Ms Burki's case that the representations were false, in that
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.
- 70/30 applied to Julian Knowles J on 20 April 2018 for an order striking out the Membership Representations and the Profiles Representations, or for summary judgment. That application was dismissed on 21 June 2018, in the course of the trial.
The contract
- By 20 October 2014, Mr Thomas was welcoming Ms Burki as a member, although it does not appear that she had actually joined. She was provided on or about 29 October 2014 with the contractual terms and conditions of 70/30 and a letter of agreement.
- Payment had to be made and formalities gone through at her next meeting, on 11 November, when she elected to become a Gold Member at a reduced price of £12,600. It was agreed that she would pay her membership fee in three instalments of 21 November and 29 December 2014 and 26 January 2015, when her membership would be 'activated'.
- The letter of agreement, which Ms Burki signed on 14 November, provided that 70/30 would provide her with a 'personalised and professional matchmaking service', to start when she had paid the fee in full. It stated that the agreement came with a guarantee of at least 12 months' active membership from the commencement date, but would be extendable beyond 12 months until either a minimum of 8 introductions had been made, or until 24 months had passed from the commencement date. Ms Burki was required to acknowledge that 'unless specified otherwise in your profile, prospective partners will be introduced from a single pool of single and suitable persons irrespective of their membership or grade of membership'.
- It is relevant in this context to record the definitions set out in the terms and conditions of contract. An Introduction meant 'that two Active Members, or one Active Member and one Individual, after receiving each other's profiles, EITHER exchange their email addresses and/or telephone numbers AND/OR meet in person for a date'. An Active Member was defined as 'a Member who is single and actively engaged in the membership process'. It was provided that any member who was in a relationship with a third party, or who failed to respond within a reasonable time to employees of the agency, was not an Active Member. An Individual was defined as 'a single person who is not a Member who we believe could be a prospective partner for one of our Members'.
- So the introductions would not necessarily be to members: they could be to a single man who they believed could be a prospective partner for a member. These were the men (and women, I presume) who were 'headhunted'. According to Ms Ambrose, these were suitable men who wanted to find a partner; would not, for whatever reason, join a dating agency; but were happy to be presented with romantic introductions. They did not receive the kind of personal matchmaking services that members received, but they did receive introductions, and they swelled the numbers of suitable men who were available to be matched with female members.
- Ms Burki, although she is apparently a businesswoman (she runs a business engaged in undefined 'consultancy', which is incorporated as Regeri Ltd), candidly admitted that she signed the letter of agreement without reading the Terms and Conditions. As she charmingly and no doubt correctly put it, 'In matters of the heart one is not rational'. Nonetheless, she felt that it was not clear that 70/30 included in their database men who were not members. I agree with her. It might have been clear to a lawyer, but not to a lay person. It should have been explained to her, but was not.
- The importance of the headhunting issue lies in the fact that on her case Ms Burki was led to believe that the men whom Mr Thomas described to her, and who were the subject of the representations made to her, were all members, committed to the dating process.
- In December 2014, Ms Burki had paid one instalment of her membership fee but asserts that she felt 'hesitant' about paying the next two instalments. It was unclear from her evidence why that might have been. She had already paid one instalment and nothing appears to have happened to discourage her from proceeding.
- Indeed, on 30 November she was asking Mr Thomas what he could do to 'provide extra motivation'. Mr Thomas was reluctant. On 1 December he explained by email that he had agreed that on payment of one instalment the agency would proceed with the initial consultation and complete the administration process, which would enable the agency to start thinking about matches, but that he hesitated to offer anything less than the full service, particularly given her previous experience (a reference to Gray & Farrar). He said that he wanted to give her the agency's full attention when she joined, rather than offer her something less that might disappoint her.
- She did not take the hint, but repeated on 2 December that she would appreciate it if they could 'start something' before she paid the full fee, because 'winter blues' were catching up with her. She followed that up on 8 December, asking for his thoughts on her last email, and saying that she was leaving shortly for the US: 'if time is short we shall have to leave all for January'. Mr Thomas replied the same day: 'It is quite a short time before you leave, but let's see if there is anything we can do', and on 11 December told her that Susan Eades (one of the matchmaking staff) would be calling her about a 'gentleman'. It was in that context that on 15 December Susan Eades emailed Ms Burki with the photograph of a man with the initials MP, asking if she would like her to 'progress a match'. It seems that Ms Eades telephoned her. She was told that he was a 'gentleman with several residences who was a very successful businessman in the finance industry'. On 17 December she replied saying that she liked the look of the man, although it was difficult to judge, because so much depended on chemistry, but 'now we must see how he feels about me'.
- The second instalment of her membership was due (and no doubt paid) on 29 December. On 8 January 2014 Ms Eades told Ms Burki that MP was travelling in the Middle East and temporarily unavailable for matches. To judge from MP's email of 7 January to Emmet Colville, another member of the matchmaking staff, that was true.
- The final instalment was paid on 29 January 2014, and her membership was activated. Unfortunately, it got off to a bad start. It was her evidence that once her membership was activated, she was told that neither KW nor MP was available any longer. She accepted, however, that 70/30 could never guarantee that either of the men would remain available.
- She complained that she was given no reason why KW was (for the time at least) no longer available. The reason for MP's non-availability, however, appeared from a note on his file dated 22 January, where Susan Eades recorded that MP had asked not to be contacted because he was trying to get back with his ex-girlfriend. Ms Burki said that she was later told by Emmet Colville and Alexandra Wilson (who had three dates with MP) that MP did not in fact want children, so did not match her criteria. (I should mention that his database entry stated that he was interested in children and was prepared to date someone with children, which might be thought to contradict that evidence, although of course anyone's criteria may change). In her view, 70/30's action in producing MP's profile was their way of convincing her to 'sign up and pay the full amount'. He was 'bait' to get her 'to pay', she said.
- I do not accept that she is right to hold that belief, even if one discounts the highly relevant fact that she had already 'signed up' for membership and paid a substantial first instalment of the fee. The contemporary records suggest that MP's profile was sent to Ms Burki somewhat reluctantly, at her insistence, and not as an artful fly cast to reel her in.
MEMBERSHIP
- Once Ms Burki's membership began on about 29 January 2014, 70/30 began to send her matches.
- Her first match, sent on 30 January, was with AH. She was sent his photograph and summary profile, which was a description of him taken from the fuller profile of each member taken and retained by the agency. She wanted to meet him, but feared that he was young and would not want to meet her. In the event, her fears were realised. However, she accepted that he met her criteria, and that he was eligible and apparently an active member.
- Her second match, sent on 18 or 20 February, was with JT. She was disappointed with the photograph, which she said was taken in a very different way from those which she had seen before. The profile was, she said, 'generic', and very different from the ones she had seen before becoming a member of 70/30. Moreover, he was based in Sydney, although considering a move to London (he was coming in April) because he was thinking of setting up an office there.
- Her complaints about JT (apart from his Australian domicile) were not easy for me to understand. She had not seen any written profile before becoming a member: that was clear from her cross-examination. She had merely seen photographs and been given verbal descriptions. She was not able to spell out how the summary profile which she was sent differed from those which had been verbally summarised to her beforehand. Nor was it clear what it was about JT's photograph that she felt inadequate. She seemed to feel that the photographs sent to her with the matches were qualitatively different from those shown to her before she joined. She said that the photos sent to her were 'far removed' from being 'professional'. For my part, I was quite unable to see the force of her complaint, nor how it greatly mattered by comparison with the extent to which the match complied with her criteria. (In that context I record Emmet Colville's evidence that JT did not want children: that, however, was not what his database entries showed). The real problem with JT was that (whatever his hopes for the future) he was based in Australia.
- From then on, she felt, 'most of the photos of male profiles which 70/30 sent to me were amateurish in comparison to the profiles I had been shown by Lemarc previously'. The photos and profiles seemed to her to be chosen arbitrarily, and without due consideration of her psychological profile. She did not believe that time or care had been taken to select the best possible matches for her.
- The profile of JC was sent to her on 25 February, according to Ms Ambrose. JC's photograph was not, in Ms Burki's view, 'professional or well presented'. She did not originally want to meet him, although it seems that she was later persuaded to change her mind by Mr Thomas.
- On 2 March, just over four weeks after her membership was activated, Ms Burki was emailing 70/30 to complain about the service. She felt that she and the agency were not an exact match, she complained about Emmet Colville's failures to call her, she was unhappy that the first match (AH) did not like her profile, and she did not like the last match presented (I believe she was referring to JT). She asked for a refund. She was called by a staff member who told her that a refund would not be offered, and she said that she did not want to meet the man proposed as the next match (it appears that this was JC). She asked to see ten profiles at once, but was told that it would have to be one at a time. (Susie Ambrose confirmed that refusal in her evidence: she said that the agency would never supply all profiles at once, or the service would be no more than internet dating. There had to be feedback after each match).
- On 5 March, Ms Burki said in an email that she was not willing to use the service any longer, and that nothing Mr Thomas said could persuade her to use it any further. Nonetheless, she agreed to attend a meeting, apparently on 13 March.
- The 13 March meeting was attended by Mr Thomas and Mr Colville (who said in evidence that he was there 'under duress' because his job was 'on the line': he seems to have meant that he was still on probation). It appears that Mr Thomas persuaded her to give JC another chance. I am not clear whether it was this meeting that Ms Ambrose referred to when she said that Ms Burki was advised to be more open and co-operative. She had been abroad a great deal, according to Ms Ambrose, which made for difficulties in the first months of matchmaking.
- Mr Colville told Ms Burki on 26 March that JC was keen to talk to her. In evidence, he said that JC first did not want to meet her, then changed his mind. She exchanged contact details with JC, but in the event he never contacted her. That she found surprising, given that he had been recommended to her by the agency. Nor did she contact him, taking the old-fashioned view that the man should make the first move. Nonetheless, it does appear that he was an active member – it is possible that he might in January have been on trial membership, but he did sign up as a Gold member, at the latest by 3 April - who met her criteria.
- The fourth and fifth profiles which she was sent were those of CC (after the 13 March meeting) and OC. CC also matched her criteria, although Ms Burki did not like his profile. She said in evidence that she did not recognise his photograph, and wondered if she might not have been sent it.
- She received the profile of OC on 17 April 2015. She accepted in cross-examination that he matched her criteria, although Mr Colville claimed in evidence that OC was looking for someone younger. At the time, Mr Colville told Ms Burki that he would shortly be in touch and follow up on the OC match, but then he was dismissed, and Ms Burki said that she lost confidence in the agency.
- There was some argument as to whether she had also received the profile of CB. Ms Burki did not recognise it, but it appears that Mr Colville emailed Ms Burki's profile to CB on 14 April 2015, which suggests that she should have received CB's profile beforehand. I do not think that it matters very much whether she saw it or not.
- On any view, she had received 5 profiles in under three months, all of which on the face of it matched her criteria. She accepted that. She also accepted that the five men all appeared to be active members, rather than men who had been 'headhunted'. However, she complained that she had a very negative experience of 70/30, and was not able to meet any men matching the representations made to her.
- Moreover, her original matchmaker, Susan Eades, had left 70/30 in February, and her replacement, Emmet Colville, was dismissed in April, to be replaced in turn by Zoya Siddiqui. No doubt those changes in personnel undermined her confidence in the agency, even though Zoya was in touch with her on 28 April to discuss a further match, and even though there is no reason to suppose that further matches would not have been offered to her. It was still early days in the 12 (or 24) months that the contract had to run. But she had prior experience of other agencies, and was not given the quality service that she expected. Moreover, she said, she was dissatisfied and did not trust Seventy Thirty; and time was running out for her in terms of having more children. She was disappointed with the service and left angrily when she was refused the refund to which she felt she was entitled.
- On 10 March 2016, she emailed Mr Thomas in these terms:
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'.
- She also emailed Susie Ambrose a few days later to tell her that she would make sure Ms Ambrose found it hard to work in London again.
- With the help of Mr Colville, she contacted a number of former clients of 70/30. Two of them (whom she claims to have contacted without Mr Colville's help) eventually gave evidence for her, to buttress her case.
- In addition, she published the two reviews that are the subject of the defamation and malicious falsehood claims, describing the agency as 'fraudulent' and a 'scam'.
- Her evidence has to be seen against that background of animus against 70/30 and Ms Ambrose. Nonetheless, she was, in my judgment, a witness who was doing her best to give a truthful account, and I accept in particular her evidence (and that of Ms Errante) about the representations made to her by 70/30 and Mr Thomas.
OTHER CLIENTS OF 70/30
- Ms Burki called two other woman who had unhappy experiences with 70/30, Lilia Severina and Alexandra Wilson.
Lilia Severina
- Lilia Severina joined 70/30 in December 2015. Afterwards, she made contact with Ms Burki in the course of 2016 through LinkedIn. She spoke fluent English, and gave her evidence combatively, often talking over counsel when she was asked questions. It was plain that she had strong feelings about the service offered by 70/30. Much of her evidence bore little direct relation to the real issues in the case.
- She stated that Mr Thomas had told her before she joined that only physical dates would count as introductions: exchanges of contact information, and telephone conversations, did not. If Mr Thomas said that, he was plainly wrong as far as 70/30's terms and conditions of contract are concerned, because they defined an introduction as either the exchange of email addresses and/or telephone numbers or meeting in person for a date. Nothing turns on the point, because Ms Burki does not say that Mr Thomas made a similar representation to her. In any event, for what it is worth, Ms Severina herself realised what the definition of an introduction was. Like Ms Burki, she said that she was a business woman, but unlike Ms Burki, she read 70/30's contract terms with care. That is shown by her email to Mr Thomas dated 7 December 2015, which displayed an intelligent understanding of the letter of agreement, and by her request for a further copy of the terms and conditions to read. She accepted in cross-examination that she knew what the definition of 'introduction' was: but nonetheless she did not consider the exchange of telephone numbers to be an introduction. Echoing Ms Burki, she said that it was an emotional time, and she was acting emotionally, not rationally.
- Ms Severina also mentioned in her email of 7 December 2015 the reference in the letter of agreement to introductions being made with both members and non-members. She made the point in her email that she wanted to use an agency because paying members were more likely to be interested in a serious relationship than non-members – the point made by both Ms Burki and Ms Errante - but she understood that headhunting could be a good option. Asked about that in cross-examination, she said that she was 'speechless' because 'this was not delivered'. She did not want what she called 'random' introductions to people not on the agency's database. Headhunting would be different, she said; but she did not believe that the men with whom she was put in touch were headhunted.
- But her question about paying members was important, and Mr Thomas' reply the next day may have some significance. He stated his confidence that 70/30 had lots of great matches for Ms Severina: 70/30 had a large database of members, and it was hard to give a number before the full assessment, but he said that Ms Severina was in many ways exactly what the members were seeking, and vice versa. He suggested that they would find about 100 people who were suitable. He did not say 100 'members', but in the context of Ms Severina's question, that is what he might reasonably be understood to have meant. He went on to say that the agency would then consider availability and assess mutual compatibility in detail until only a handful of people remained on the final list. However, he said, each week it was likely to be a different handful. So over time it would be a large number. Ms Ambrose, when asked about this email, regarded it as 'normal'. Mr Thomas' remarks about Ms Severina's likely appeal to existing members (and vice versa) recall the Suitability Representations, and show that Mr Thomas did make such representations to potential members.
- After she joined, Lilia Severina did not feel that she was receiving a good enough service, and asked for a refund. That was refused, so she decided to persevere. Over the next 18 months, she was put in touch with (and was therefore given introductions to) eleven men, with seven of whom she only spoke on the telephone, and matters went no further. She met four men, Andrew, Amir (whom she met twice), Paul (who told her he was not a paying member and invited her on another date when she was unavailable), and another Andrew, who apparently told her (with an astonishing lack of gallantry and considerable stupidity, if it was true) that he had only come on the date as a favour to Susie Ambrose. (Ms Ambrose, I should record, was vehement in her rejection of that suggestion, which she said was a lie: she did not even know a man called Andrew, she was not working at 70/30 at the time, and there would have been no reason for her to have asked for such a favour).
- It seemed from Ms Severina's witness statement that the only person whom she really enjoyed meeting was the first Andrew. She did not explain why that date did not – apparently – go further. She felt that during her membership she was only matched with two genuine people, one of whom she did not believe was a paying member. The other 'matches' were unsuitable because they did not live in London or were not looking for a serious relationship. She accepted that she would have received a profile for each man, and would have indicated an interest in each of them. She said that she was accommodating and would have given anyone a chance. She was asked whether Mr Thomas had in fact said anything to her that had been untrue, and her answer was that some men were headhunted so were not on the agency's books. But she had known that before she joined.
Alexandra Wilson
- Alexandra Wilson had also been dissatisfied with 70/30's services. She was unclear about how she had come into contact with Ms Burki. Ms Burki told the court that she found Ms Wilson online, using her first name and a description given to her by Mr Colville. Ms Lacob suggested that Ms Wilson's memory loss could have stemmed from reluctance to embarrass Ms Burki, who in turn would have been unwilling to incriminate Mr Colville by admitting that he gave her Ms Wilson's contact details. I am prepared to accept Ms Wilson's evidence that she genuinely could not remember. It does not seem to me that the point is of material importance.
- She joined 70/30 on 7 June 2013 as a Gold member (the same category as Ms Burki). She was told by Landis Maugan that the agency was an exclusive matchmaking service with membership fees at premium prices, and a database with a 'significant' number of high net worth individuals. (Landis might have said 'a decent number', or 'a lot'). She was told by Landis that all the men introduced to her would be paying members. It would have been a fair inference that Landis was equating the database with the current paying membership, of which there was therefore a decent number, or a lot, or a significant number. It is of note that Landis Maugan was apparently allowing Ms Wilson to draw the same false inference as Tereza Burki maintains that Lemarc Thomas allowed her to do.
- She did not notice the reference in the letter of agreement to prospective partners being introduced from a single pool of suitable persons irrespective of their membership. She accepted that she wanted to meet her life partner, so that it was irrelevant to her whether a man was a member or not, but she felt that she had been misled by Landis Maugan, and that left a bad taste in her mouth.
- She had a number of concerns about the service provided: for example, she had no fewer than nine client managers, or matchmakers, during her two years of membership, which showed a lack of continuity and stability; and she was introduced to three men who were not committed to the dating process, and to one whose photo did not match his actual appearance. She was sceptical about the use of psychological profiling, of which she saw no evidence; she was sent profiles which did not match her criteria or were out of date; and one of her matches had been to her ex-boyfriend, who told her that he was not a paying member. But he had been a member in 2008, and after being shown a scan of his database entry dated 28 August 2014, which appeared to indicate that he was actively participating then, she accepted that he must have been. The significance of his continued presence on the database as an active participant in 70/30's services, Mr Edwards suggested, was that it showed how dependent 70/30 was on continuing to make use of former members.
- She was also concerned that she had not been asked about her own net worth, which she said had been negligible then (although she had been able to afford the very substantial membership fee), and was led to suppose that other members might not have had their worth checked either. That was not an unreasonable inference. She did not have the opportunity to deal with Susie Ambrose's later suggestion, which was not supported by any documentary evidence, that Ms Wilson might have been somewhat better off than she had made out. I see no reason to doubt Ms Wilson's evidence on this question, although it is impossible to say whether it points to an administrative error or a more endemic failing.
- Ms Wilson was sent the profiles of 31 men. She accepted that only 'one or two' fell outside her criteria, and that she rejected many because she did not find them attractive. But she felt that some of the men were not engaged in the process, did not want to meet up or had too much work at the time: in her view, 70/30 should have kept up to date with them. That suggests that those men were not active current members. She felt that only three introductions had been credible, and she regarded the agency's claim to have a large database as 'highly questionable'. In her view, it was short on men.
EMMET COLVILLE
- Emmet Colville did not make a witness statement. Ms Burki served a witness summons on him because he could not voluntarily make a witness statement or give evidence about the business of 70/30. This was because following his dismissal from 70/30 in April 2015, he was sued by his former employer in the Wandsworth County Court for breach of confidential information, which allegedly involved his taking with him the details of a number of the agency's clients, and sharing that information with Ms Burki and/or her lawyers. He admitted in evidence before me that he telephoned 9 of his own clients, as well as Ms Burki, when he was dismissed, to let them know that he no longer worked for the agency. He denied giving Ms Burki the numbers of clients whom she might wish to contact: what he did was to put the numbers in her telephone so that she could call them while he sat with her. He then asked her to delete the numbers. It seems to me that the distinction which he seeks to draw is illusory. It may well be, as Mr Edwards suggested, that he was trying to strike a balance between his confidentiality obligations and his wish to put dissatisfied clients of 70/30 in touch with each other. As Mr Edwards rightly says, he ended up in a halfway house that gave him no shelter.
- As I understand it, he defended the claim on the basis that there was a public interest in his acting as he did. Those proceedings culminated in a trial on 22 January 2018 before District Judge Hugman, in the course of which Ms Burki gave evidence for Mr Colville, and at the end of which the judge found for the company and granted an injunction. I am not entirely clear what happened to the damages claim, but it appears that the judge stayed proceedings for an assessment of damages pending the outcome of Ms Burki's claim in this action.
- The reason for the stay appears to have been, as Mr Edwards suggested, the judge's impression that the losses for which Mr Colville could be held liable might be mitigated if Ms Burki's claim against 70/30 were to fail. I do not entirely understand the point that the judge was making at this point of his ex tempore judgment, but the gist of it is that Mr Colville has been made aware that his potential exposure to 70/30's damages claim would be reduced if Ms Burki's claim against 70/30 failed. Mr Colville told me that the judgment is under appeal, but Mr Edwards argued with some force that the judgment as it stood gave a powerful incentive to Mr Colville not to support Ms Burki's case; and that the fact that he was nonetheless prepared to support it was supportive of his credibility.
- Mr Colville had a first degree and a master's degree in psychology. He became a matchmaking specialist for 70/30 on 8 December 2014. He seems to have become Ms Burki's matchmaker after Susan Eades left in February 2015. It is plain that he did not enjoy working for 70/30. He complained that when he arrived there was no training, and the place was 'on fire', as he put it, and a 'toxic environment'. Matches were delivered whether they were suitable or not, and his fellow matchmakers were very stressed and afraid to speak about the agency's problems, which he said were essentially the product of a shortage of members. They were told not to talk to each other about the problems with the agency. They even feared that listening devices would record their conversations. There was a very high staff turnover (he thought 100% over two years, although he was only with 70/30 for 5 months himself). His evidence was that he did not like 70/30 because it took people's money and then forgot about them, when they had nowhere else to turn. That was why he had taken contact details with him and given them to Ms Burki. It had been the worst experience of his working life.
- It is plain that Mr Colville did not get on with Susie Ambrose, to whom he spoke about what he regarded as the problems with the agency. He told her that from what he heard from his clients, questionable misrepresentations were being made to them. She was angry, demanded to see his CV, read it and laughed at him. In other words, rather than deal with his suggestions about what was wrong and how matters could be improved, she resorted to mockery.
- On Mr Colville's evidence, he was responsible for reviewing the profiles of 20-26 paying members, 90% of whom were female. There were, he said, about five others who did the same job. He had access to the 'front end' of the database, and he could see the profiles of those listed. He could search the database by reference to search terms, which were limited: he could not, for instance, search on whether a person had several houses or wanted children. Shown a screenshot of the database, he accepted that in fact there was a box for 'Interested in having children – Yes/No/Unsure', which could be used, but he said that the pool was so limited that he did not have the leisure, as he put it, to do so. He would first do a search against such criteria as the database recognised and then dig deeper by examining the profiles. The database would throw up people who were not still active members. They could only be weeded out by examining their profiles and seeing when they were last contacted.
- The expectations of his female clients were for a pool of like-minded men who had signed up for membership on the same terms as they had, and he said (speaking in general terms) that they were very disheartened with the quality of the men whom he produced. His experience was that the database did not have a substantial number of eligible men. He did not know how many men there were on the database, but his evidence was that there were about sixty paid up members of both sexes when he was there. That was his 'guesstimate', based on working with and talking to five other members of staff. Most of the sixty were women: he knew of only five paid up men members. At a stretch, he said, there were no more than eight. The staff members were all in the dark, he said, about how many paid up members there were.
- He was asked about the profiles sent to Ms Burki, for some of which he was responsible. He claimed that he delivered matches regardless of whether they were suitable or not. He referred to a man from Australia, who he said could not have met Ms Burki's criteria, because his profile showed that he was not going to have more children. That appeared to be a reference to JT, who planned to move to London. When it was put to him that JT did not say that he did not want children, his answer was that men would change their criteria.
- He maintained that JC was not a paying member, which would have been true at the date when his profile was supplied (3 March 2015: he was then on a temporary complimentary membership), but given that his membership expired on 3 April 2016, it appears that JC must have paid his membership fee no later than 3 April 2015.
- He said that MP, whose details had been sent to Ms Burki in December 2014, before her membership had begun, was not an active member, and he regarded it as 'all too convenient' that MP was an active member in early January 2015. He was shown the record of MP's email of 7 January 2015 saying that he was in a position to meet interesting women, and accepted that he must in fact have emailed MP, despite the fact that, he maintained, MP was not eligible to be contacted because he was no longer paid up.
- Mr Colville was shown the results of a search that had been done in the case of Ms Burki, which according to Susie Ambrose had been saved and attached to Ms Burki's file, presumably in early 2015, following a search against her criteria. That showed 72 men, all of whom were said to be members. He had not seen it before and knew nothing of it. He was very doubtful that that could be right: he said that he would not be in court giving evidence if the agency had produced 72 people, even if Mr Thomas said that it had. But he fairly accepted that he had not previously known the full extent of what he had learned in court.
- To be fair to Mr Colville, he was being asked questions about individuals whose details he would not have seen since 2015. Given the evident unhappiness of his time at 70/30 and the unpleasantness of the litigation since his dismissal, his viewpoint was somewhat jaundiced, and I make some allowance for that. Nonetheless, he seemed to me to be a decent young man who was doing his best to give truthful evidence, in circumstances in which (as Mr Edwards submitted) it was probably not in his personal interests to do so. In general I accept his evidence and the honesty of his assumptions about such matters as the number of active members, although I bear in mind that he did not have a full overview of 70/30's operations. In particular, I accept his evidence that the agency did not have a substantial number of eligible men, although (for reasons given below) I do not accept that his 'guesstimate' about the size of the male paid-up membership was correct.
SUSIE AMBROSE
- Ms Ambrose's evidence was that the database currently contains around 9000 records, each containing a number of fields used to record information about an individual. The records also include free text fields for recording contacts with the individual. The database is searchable by reference to most of the fields. What cannot be done is to search records by the date on which an individual joined 70/30 or ceased to be an active user of the service. Nor is it possible to create a snapshot of the database at a previous date: it is constantly being updated, and the software does not save itself at intervals so as to retain a record of its state at a particular point. That means that there is no way to find out what its state was at any particular point in time, unless (as may have happened in this case) a search was saved by a member of staff and appended to a member's file.
- Nonetheless, Ms Ambrose was able to produce a printout from October 2017, which appeared to show a total at that date of 4,802 male records and 5,010 female, making a total of 9,812 individuals. It also gave a total of 7,279 paid up members, 1,140 headhunted males and 1,303 headhunted females (which also added up to 9,812). Finally, there were 623 'expired' members. These were figures supplied to Ms Ambrose by the head of matchmaking, which she believed to be correct.
- It seems to me that the figures are highly unlikely to be correct. In particular, it is implausible that there could be over 7,000 'paid up members' (if that meant currently paid up, which is what the reference to 'expired' members might imply). If what is meant by 'paid up members' is people who had paid to be members over the life of the company, then it is unclear what the category of expired members could represent, because most of the paid up members would have 'expired'. To that extent at least, the figures makes no sense. It is highly regrettable that no-one with a current understanding of the figures was called to give evidence.
- Ms Ambrose thought that the average paid by a member, taking into account discounts and periods of reduction because of the pressure of competition, was around £10,000, although it was open to management to offer discounts, depending on market conditions. If that was right, and if the reference to 7,279 paid up members meant members who had paid up over the 17 years of trading, then the company would have turned over some £70 million over that period. As I understood her, Ms Ambrose thought that could not be right. She was plainly bemused by it, saying that she did not understand.
- She was asked to look at a summary of the turnover of 70/30 produced by Craig Males, the agency's accountant, who confirmed that the figures were correct based on the information that he had been given. That summary showed annual turnover for the years 2014 to 2017 inclusive, less refunds, of £766,849 in 2014, £857,689 in 2015, £707,549 in 2016 and £626,533 in 2017.
- It was put to her that if the average fee was indeed £10,000, those figures suggested 60 to 80 new members coming in each year, which, Mr Edwards suggested, corresponded with Mr Colville's estimate that there had been around 60 active members when he was working for the agency. She said it was a lie that there had been only 60 members. She insisted that she would not keep 10 employees if the agency only had 60 new members each year. Two people could easily handle that number. When Mr Colville had been working for 70/30 there were 8 matchmakers, not 5 or 6 as he suggested, and he had not had access to all the members, around 40% of whom, typically the higher profile members, would not have been accessible to new members of staff. Mr Thomas dealt with the high profile members, and Mr Colville would have had to ask him if there were any high profile members who were suitable for Ms Burki. Unfortunately, that assertion was not put to Mr Colville, but it is not, on the face of it, compatible with the evidence that he gave.
- She said that she thought there were now around 800 active members (in her witness statement she had estimated 600-1000). It emerged in re-examination that she included in the category of 'active members' former members whose contracts had expired but were still content to be matched. Her evidence as to the number of active current members must indicate very substantially fewer than 800. That compares most unfavourably with the Defence assertion, which presumably she verified, that the agency had 1500 active current members during any calendar year.
- It is fair to say that matters are complicated by the fact that members who get into a relationship, or have to travel abroad for a prolonged period, or have a period of very intensive work commitments, can 'freeze' their membership, so that time stops running until the situation changes. That means that a year's membership fee may pay for a membership that could last for years. In that sense they are (while frozen) not active, although they remain members. Ms Ambrose's evidence was that members were constantly becoming available again: all day, her staff rang members to ask how their relationships were going. That was a normal part of the matchmaker's proactive functions, and it meant that the agency was being alerted on a regular basis to the renewed availability of members.
- The database does not record the results of searches for suitable matches, unless a matchmaker chooses to save them. That was said to have happened in the case of Ms Burki, where the matchmaker (Ms Ambrose assumed it was Emmet Colville, but he said not, which pointed to Susan Eades) had saved the results of a search which produced seventy-two names, all of them apparently Gold members rather than men who had been headhunted. It had been attached electronically to Ms Burki's file on the database. Ms Ambrose explained that in response to an application for specific disclosure, twenty redacted profiles of male members were disclosed, which were taken from among the seventy-two who matched Ms Burki's criteria.
- That evidence is not entirely correct. It may be that most of the twenty profiles came from among the seventy-two names, but not all of them did (the profile of MO records him as a Gold International member, but none of the seventy-two is shown with that category of membership). The details of both the seventy-two and the twenty are so redacted that it is impossible to cross-check whether any other members among the twenty did or did not come from the seventy-two.
- In addition to the twenty redacted profiles, Ms Ambrose produced two pages which she had extracted from the files of each of the twenty. They were screenshots which she had herself taken on 10 June, very shortly before the trial. They were the subject of an application for relief from sanctions for late disclosure. I allowed them to be adduced in evidence, essentially because they were on the face of it relevant to the issues in the case, because the court should so far as possible have before it the fullest available evidence, and because I felt able to weigh their value in the light of such explanations as Ms Ambrose was able to give for their late production. Mr Edwards did not suggest that any prejudice to his client necessitated an adjournment.
- These screenshots contained further information about each of the twenty men. There were three boxes relevant to children, one for dependent children, a second to indicate an interest in children (presumably, an interest in having children), and a third to give a yes or no answer to the question 'Would you date someone with children?'. It appeared that all of the twenty men had shown an interest in children and a preparedness to date someone with children. That served to buttress 70/30's evidence that the twenty redacted profiles, and, by extension, the seventy-two produced by the saved search, met Ms Burki's criteria. The lateness of the screenshots was explained by Ms Ambrose in terms of damage to the company's server, which had apparently crashed after being hacked. She gave no details of the time for which 70/30's system was down, and I regard it as a thoroughly unconvincing excuse. This material could and should have been disclosed very much earlier than it was.
- Ms Ambrose was cross-examined on her understanding of 70/30's disclosure obligations. She says that she is dyslexic, and when giving evidence she appeared to need constant help to find documents quickly. That did not make the process easier for her. Also, she was out of the country a good deal, and she said that she had to check such documents on her phone. She admitted that she had not understood the disclosure statement which she made, apparently on 20 January 2018, despite having certified that she understood her duty of disclosure and that to the best of her knowledge she had carried out that duty. She had also allowed herself to be described on the statement as managing director, which she was not. She did not remember reading through it. She accepted that had she done so she would have picked up that error.
- That admission, and the thoroughly unsatisfactory way in which – as a sufferer from dyslexia - she reviewed important court documents using a smartphone, shows a deplorably lax attitude to her duty to the court and the proper conduct of litigation. She accepted that she had approved 70/30's Reply despite the fact that it contained what she accepted had been an error (and a significant one) about the number of profiles shown to Ms Burki. Her explanation (it was difficult – I was away – I signed it – I was wrong) was wholly inadequate, but she seemed to regard it as settling the matter. The duty of disclosure, and of verifying pleadings and other court documents, was hers as a director of the company, not that of her solicitors, although no doubt she relied heavily on them. It is not at all clear to me why that duty was not undertaken on the company's behalf by the current senior management, rather than by a dyslexic with a smartphone who was abroad and apparently unable or unwilling properly to check the accuracy of what was being said on her company's behalf in the litigation.
- She was also asked about a witness statement dated 17 April 2018 made in response to Ms Burki's application for specific disclosure, as a result of which a substantial amount of further material was disclosed. That, she said, she read all the way through and with great interest: her input was important. It was not like a form she had to sign. (Nor, of course, was her disclosure statement, and nor were the company's statements of case). The main issue addressed by the witness statement was inspection of the 70/30 database, which Ms Ambrose was unwilling to countenance because of her concern, in the light of Ms Burki's contacts with Mr Colville after his dismissal, that she would not treat it as confidential. The alternative, which would be to print out the entire database and redact all names and personal details, would, she estimated, have taken hundreds of man days, and have been wholly disproportionate.
- She stated unequivocally in a witness statement on 17 April 2018 that there were no more documents relevant to the case on special damage in defamation concerning two prospective members, VS and MJ, apart from the two emails already disclosed; but on 24 May 70/30's solicitor blithely informed his opponents, without explanation, that there had in fact been some oral communications from the three prospective members relied on, notes of which were attached. In the absence of any explanation, I infer that Ms Ambrose had not applied herself properly to Ms Burki's request for specific disclosure when she made her witness statement.
- In the course of her evidence, Ms Ambrose referred to a filing cabinet which would show what paying members 70/30 had, and to undisclosed documents which gave reasons why certain men did not want to be introduced to Ms Burki. On the face of it, it is perfectly obvious that the documents showing what paying members 70/30 had should have been disclosed. It is a central issue in this trial. Mr Edwards did not ask for those documents to be produced, probably because he was concerned (as was I) that the trial should not over-run its allotted week, but the fact is they should have been disclosed, and the failure to disclose them reflects very badly on Ms Ambrose's appreciation, as the controlling figure of 70/30 for the purposes of this litigation, of her disclosure obligations as a director of the company. It also raises serious questions as to the extent to which Ms Ambrose was willing to put before the court documents which on the face of it should have been capable of resolving a central issue in the action.
- I mention these disclosure matters because Ms Ambrose's evidence was in many respects far from satisfactory. She came to court as a business person and a company director to give evidence for her company, yet she appeared not to have applied herself to the conduct of the litigation with the attention and seriousness that it deserved. She was prone to making confident statements that cannot have been within her own knowledge (for example, that Ms Burki did receive the CB profile and that she did therefore receive 6 profiles in total). She was in the habit of saying languidly that she did not understand figures which, as the owner of the agency, she should have made it her business to understand, or else ensured that another witness was there to explain them. It was not acceptable, for instance, that she should not have familiarised herself with the turnover figures produced by her company's own witness, Craig Males, and done some research to justify her company's figures for the number of active members on the database.
- My impression is that Ms Ambrose is a person who is not interested in detail and is prone to making broad statements in an imperious manner that brooks no contradiction. She was, in short, a poor witness, and I approach her evidence with very considerable caution. But at the same time, I should record my impression that she was genuinely offended by suggestions that her agency did not offer a good service to its members.
SUBMISSIONS & CONCLUSIONS
The representations
- I have had the benefit of extensive submissions. Mr Edwards' skeleton argument for the trial ran to 24 pages, and his closing written submissions (which were intended to supplement his trial skeleton) added a further 52 pages, plus appendices. Ms Lacob was more economical.
- Mr Edwards correctly submits that Ms Burki's claim is about a shortage of the kind of men who were represented to exist, i.e. wealthy members who were actively participating in 70/30's services. He warns of a risk of 'slippage' between that category of men and what he calls the much more nebulous category of men who had paid for membership at some point and had remained single and open to being matched. 70/30 cannot defend the claim, he argues, by showing that there was a substantial number of men in that wider category. I agree. The same applies to those who had been headhunted.
- He says that because of the way the claim was pleaded by both parties. The RAPC (paragraph 9) relied on the representation that the database included a substantial number of men who had membership of 70/30's services. That meant men who were members at the time, not men who had been members in the past. Similarly, he argued, 70/30 committed itself in its Defence to what it meant by 'member', namely current paying members (paragraphs 4d(i), 9 and 11), of whom it claimed to have around 1500 (paragraph 26a), split evenly between the sexes. 70/30's case was that it had around 1500 current paying members in any given calendar year, of whom the majority were actively participating in 70/30's services.
- 70/30's position has been not to admit the representations, because it has lacked the input of Mr Thomas. Ms Burki was not cross-examined on the basis that the representations were not made. Ms Lacob accepted that the case had proceeded on the basis that the pleaded Membership Representations were made. The determinant of what was said must be the evidence, rather than the way in which the pleadings are framed; but I think that Ms Lacob was right to accept that not much should be made of discrepancies between the evidence and the pleaded case, given her acceptance that the pleaded case set out the gist of what Ms Burki was told.
- I was therefore puzzled by Ms Lacob's submissions about what she called 'the paid members and headhunting issue'. She submits that it is not Ms Burki's pleaded case that Mr Thomas made any representation that 70/30 had a substantial number of men on its books who had paid for their membership (her underlining). She describes the pleaded case (that the defendant's male membership comprised men who were actively participating in the defendant's matchmaking services, or at least included a substantial number of men who were actively participating) as a 'lawyer's construct'. That is true. It is the pleader's task to put the client's proof into a more formal shape. The actual words relied on were extracted from Ms Burki by a request for further information (see [46] above). Ms Lacob argues that the most Mr Thomas is alleged to have said was that members were 'deeply committed to the process', and that there is not said to have been any discussion about whether the men on the database were paying members. Any inference from those words, she argues, that Mr Thomas was saying the men on the database had all paid fees, would not be a reasonable one.
- In my view it is plainly Ms Burki's case that Mr Thomas represented that a substantial number of men on 70/30's books (but not necessarily all) had paid for their membership, and I reject Ms Lacob's submission to the contrary.
- Firstly, it is clearly pleaded that there was a substantial number of men (but not all) who had paid. The starting point of the Membership Representation is that there was a database of members who had membership of the defendant's services (RASC para 9a). The pleading goes on to say that the male membership comprised men who were actively participating in the defendant's matchmaking services. The male membership means males who are members. It is common ground that members have to pay for their membership. Therefore it is pleaded that Mr Thomas said that a substantial number of men on the database paid for their membership. That was clearly understood by the pleader of the Defence (paragraph 4d), who stated that the database consisted of current members, former members, and individuals who had been approached by the defendant but had not contracted with it, and therefore had not paid any sums to the defendant – that is, unlike the current members, who had.
- Secondly, the issue was carefully considered by Julian Knowles J in his judgment on the application to strike out part of Ms Burki's pleaded case on misrepresentation ([2018] EWHC 1570 (QB). He was applying a different test, and I am not bound by his decision, but I entirely agree with his analysis and respectfully adopt it:
"[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).
- In my judgment the evidence before me (set out at [25] – [34] above) fully bore out the Membership and Suitability Representations.
- It seems to me clear that the main effect of what Ms Burki was told by Mr Thomas was that there was a substantial number of wealthy male members of 70/30 who were actively engaged in its matchmaking services. He did not always spell out in terms that he was talking about the numbers of active paid up members, as opposed to the numbers of men 'on the books' (if that might have meant something different) or on the database, but in the absence of any mention of men on the database who were not paying members, and in the context of the claims made by 70/30 on its website (the Online Representations) it seem to me that any reasonable person would have understood him to have been telling Ms Burki about the numbers of wealthy, actively engaged paying members.
- Those, in effect, are the Membership Representations, coupled with the online material to which Julian Knowles J referred, and as I understand it, it is not in dispute that they were made.
- Ms Lacob did not, I think, address the Suitability Representations in her closing submissions. They do not add a great deal, but Ms Burki's evidence shows that Mr Thomas did reassure her that there was a substantial number of members who were a sufficient match for her criteria, and that there were several current members whose own criteria were such that she could be matched with them. Moreover, his email to Ms Severina of 8 December 2015 shows that he made very similar representations to her. I accept that representations to the effect pleaded were made to Ms Burki.
- What Mr Thomas' representations amounted to, therefore, is that there was a substantial number of wealthy male members of 70/30 who were actively engaged in its matchmaking services and who were a sufficient match for Ms Burki's criteria.
- The Profiles Representations do not advance Ms Burki's case. With the exception of KW, none of the subjects of the profiles has been identified. There is no basis on which I could find that KW was not an active member whose criteria sufficiently matched Ms Burki's.
- Ms Lacob argued that it was a bonus that former members who still wanted to be matched remained on the database, and she submits that Ms Burki would still have entered into the agreement had she known that there were headhunted men on the database (because she wanted to meet MP despite believing that he was headhunted). However, that was not her evidence. Her evidence was, and I accept it, that Mr Thomas never discussed the issue of headhunting with her. The effect of her evidence, as I understood it, was that he never suggested that there was anyone on the database who was not an active paid up member. I accept her evidence that she was looking for commitment, which is why she wanted to be reassured that the men she was to be matched with were paying members who were actively involved in the process of seeking a partner, and why she would not have joined 70/30 had she realised that the database included what appears to have been a substantial number of people who were not current or active members at all. Her concern seems to me entirely understandable.
- I have no difficulty in concluding that Ms Burki relied on the representations made to her by Mr Thomas. She was about to spend a large amount of money on a dating agency in the hope of finding a partner who would give her a fourth child. She herself felt that time was running out for her. I find it entirely credible that it should have been important to her to be reassured that a substantial pool of paying members, who were plausible matches and actively involved in and committed to the dating process, was available. That was the gist of her evidence, and I accept it. She had no means of checking the truth of what he told her, and no reason to doubt it: Mr Thomas was the managing director of 70/30, and what he said will have carried weight.
Truth or falsity of the representations
- Were Mr Thomas' representations, namely that there was a substantial number of wealthy male members of 70/30 who were actively engaged in its matchmaking services and who were a sufficient match for Ms Burki's criteria, true or were they false?
- It is significant that 70/30 has claimed in its Defence that during any one year it has around 1500 current members (meaning those within their membership period) of high net worth, most of whom participate actively in the agency's services. That was not a figure supported by Ms Ambrose in evidence, and had Mr Thomas made a representation to that effect, it would have been false. I cannot understand how such a figure could properly have been advanced as true in the Defence. The copy in the trial bundle was unsigned, but I assume that it will have been verified by Ms Ambrose.
- In her evidence, Ms Ambrose drew back from that claim. She put the figure at around 800 active members, but it turned out that even that figure required qualification. By 'members', she did not in fact mean members (i.e. current members) at all: she meant current members and former members whose contracts had expired but were still content to be matched. So the actual figure for active current members would have been substantially lower than 800, even on her own evidence, and almost certainly considerably less than half of the 1500 verified as the true position in the Defence.
- The database printout produced by Ms Ambrose, which she said had been produced in October 2017, is in my judgment highly unlikely to be reliable. There are many unsatisfactory aspects to it.
- For example, it claims a 'matchmaking success rate' of 85%. Given that the document claims 5,530 'successful relationships', and 7,279 paid up members, the correct percentage would be around 76%, not 85%. So either the stated percentage is wrong, or it does not mean what Ms Ambrose said it meant, which was the percentage of paid up members who entered a relationship. In either event, it seems an improbably high figure, unless the definition of 'relationship' is something very short term.
- Moreover, the figure for 623 'expired members' raises obvious difficulties which I have canvassed at [110] above. It is improbably low. Given that the figure for 7,279 paid up members must refer to people who have been paid up members over the 17 years since 2001 (plainly it does not refer to current members), most of that figure must represent ex-members. What is the difference between an ex-member (someone who had paid but whose membership has lapsed) and an 'expired' member? Ms Ambrose was unable to explain.
- But the figure for 7,279 paid up members over the 17 years also gives rise to real difficulties for 70/30, given Ms Ambrose's acceptance that the average amount paid by a member is likely to have been around £10,000. As Mr Edwards submits, she had little choice but to accept that figure, for a number of reasons: some people have paid £60,000 and others £30,000 for higher tiers of membership; the lowest level of membership is supposed to cost £18,000, albeit that it is often discounted (Ms Burki paid £12,600); according to Ms Ambrose, some people paid to renew their membership; and some people paid for 70/30 coaching packages on top of their matchmaking fee. Indeed, that average is likely to be on the low side, which may serve for present purposes to compensate for the effects of inflation over the period since 2001.
- If that is an accurate average fee, it suggests (subject to inflation) a turnover of some £70 million over the life of the business, and in any event, even if inflation is factored in, a turnover in the tens of millions. When that was put to Ms Ambrose, she seemed surprised, and plainly did not think it right. She said that she did not know and did not understand the documents.
- It is plain to me that either the figure of 7,279 paid-up members is wrong, or members must have paid a fraction of Ms Ambrose's average £10,000 fee. It seems to me more likely that the figure of 7,279 is wrong. As I have said, those figures should not have been produced without someone who was able to explain them. They made no sense whatever.
- By contrast, the turnover figures summarised by Mr Males, 70/30's accountant, from figures supplied to him by 70/30, do appear to suggest that a relatively small number of people pay for membership each year. If the figure of £10,000 is taken as a reliable average, that suggests 77 new members in 2014, 86 in 2015, 71 in 2016 and 63 in 2017. If the true average is higher – say the £12,600 which Ms Burki paid – then the figures shrink to 61, 68, 56 and 50. If the numbers for those four years are used to produce a yearly average of new members over the 17 years that 70/30 has been in business, the yearly average would be 74.25 pa (taking an average fee of £10,000) or 58.75 pa (taking an average fee of £12,600). Over 17 years, that would be 1,262.25 or 998.75 paid up members. Even those totals would almost certainly be a substantial over-statement, because the business of 70/30 had to be built up from a small base, so will have been much smaller in the early years.
- Confronted with the implications of the turnover figures, Ms Ambrose could not account for the discrepancy between those figures and the claimed paid-up membership. She tried to suggest that some money had been paid to something called the 'clinic account'. I did not understand this. If what she was saying was that 70/30's income (and therefore taxable profits) had been under-reported, that would suggest that the company has underpaid corporation tax (and possibly VAT), and that revenue belonging to 70/30 has been improperly diverted. As Mr Edwards submitted, that might entail the commission of criminal offences. It would also mean that 70/30 had allowed Mr Males to make a witness statement that was false and misleading.
- Allowance should be made for the likelihood that many memberships will extend into 2 years. But – subject to the memberships being frozen – the total current membership in any given year will still not comprise more than 2 years' worth of sign ups. Taking the yearly average since 2014 as 75, that would be a total of 150, presumably split fairly evenly between men and women.
- The 'freeze' factor must also be taken into account. Members who freeze their membership for one reason or another (e.g. they are in a relationship, or working overseas), and are not 'active' while their membership is frozen, may have memberships that extend over some years. The boost caused by a number of unfrozen memberships could create a cumulative total of active members that is somewhat higher than the number of annual new arrivals would suggest. As against that, in any given year, some of the current active memberships would become frozen and therefore cease to be active. To make any significant difference to the figures for active members in any particular year, there would have to be a sudden and substantial excess of thawed memberships over newly frozen ones. There is no particular reason to suppose that this happened. Indeed, 70/30's pleaded case is that during any calendar year it had around 1500 current members, most of whom were actively participating. That suggests a fairly steady state.
- How is this apparently low active membership, which on this analysis could hardly be more than perhaps 150-200 members at the most (male and female), to be reconciled with the 72 search results found attached to Ms Burki's file on the database? Ms Ambrose thought that the search had been made by Mr Colville, but he said not; so I presume that it was carried out by another member of staff, probably Susan Eades. That does not matter. Cross-examined, Ms Ambrose did not know what criteria had been applied in making the search, except for type of membership, age and location. Asked whether the 72 results were potential matches for Ms Burki, she replied that she was not the matchmaker. However, on the face of it, all were then members: that was the evidence of Ms Ambrose, although she had no independent knowledge of the search beyond what she saw on the documents. There is a tick against each name under the heading 'current member'. More than that it is not possible to tell from the face of the documents.
- If Mr Colville is right, and I see no reason not to accept his evidence on this point, in 2014-2015 the staff found great difficulty in putting together searches which produced enough suitable members. His evidence was that he would do a search against such criteria as the database allowed, and then dig deeper by examining the profiles produced. He said that the database would, as one would expect, throw up people who were not still active members (and, no doubt, men who had been headhunted). They could only be weeded out by examining their profiles and seeing when they were last contacted. Therefore it is very surprising indeed, given that evidence and the accepted fact that the database included many such men as well as current members, that the results of the search produced by Ms Ambrose did not include either former members or headhunted men. In the circumstances, and given Ms Ambrose's lack of personal knowledge as to how the search came into existence and as to the criteria applied to it, I am reluctant to place much weight on it.
- As I have said, it was Ms Ambrose's evidence that the 20 redacted profiles provided in May in response to an application for specific disclosure were taken from the 72 results of the search. She said that she was told by 70/30's solicitors to take the profiles shown to Ms Burki and add others to make the total up to 20. In fact, at least one appears not to have come from the 72 search results (see paragraph [117] above). It is difficult to know, because of the extensive redactions, how many of the remaining profiles did come from the 72 search results.
- An additional two pages for each of the 20 profiles were disclosed on 13 and 18 June, just before the start of the trial. Each of them does show that the boxes for interest in children and preparedness to date someone with children are ticked, which tends (if they are what they purport to be) to support the thesis that the search from which they seem largely to have been taken was designed to meet Ms Burki's criteria; although it is fair to say, as Mr Edwards does, that the fact that most of the profiles were created years before Ms Burki joined 70/30 may raise doubts as to whether, as they aged, they continued to be open to a life with children. It is also reasonable to surmise that most men who wish to date women between 40 and 50 are going to be limiting their choice severely if they do not state an interest in children and a preparedness to date someone with children. In other words, one would perhaps expect that male members looking for a partner of Ms Burki's age would have ticked those boxes almost as a matter of course.
- Mr Edwards makes other points about these new documents. There are anomalies on the face of some of them, such as membership status being given as 'active' when membership had in fact expired; the fact that in several cases there is a period of many years between the date of creation of the record (if it is given at all) and membership expiry dates, which suggests long periods when the men cannot have been members, or at least not active members; and in one or two cases the communications between the men and 70/30 staff cast doubt on whether they were active paying members.
- It is relevant to take into account that in 2013-2015 Alexandra Wilson received 31 matches, almost all of which met her criteria. However, it is impossible to know how many were current members, how many were expired members who remained on the database, and how many had been headhunted. The only evidence of the status of her matches relates to her boyfriend and MP. Her boyfriend's membership seems to have been current and active at the time (it had started in 2008, but expired on 18 December 2015), so it seems likely that he had renewed, or – possibly - that his membership had long been frozen. MP told her that he was not a paying member, but the documents in his file suggest that he was a Diamond member, although it is unclear when that membership expired.
- Lilia Severina received introductions to 11 men, but it is not known how many of them were paying members. She said that two of the four men she met said or implied that they were not. She did not say that they were not wealthy or did not otherwise meet her criteria. Her complaint seems to have been that they did not seem interested.
- It is also relevant to record that of Ms Burki's 5 matches (leaving out of account the disputed CB), three (AH, CC and OC) appear to have been current active members at the time, and JT and JC, who were on a complimentary trial period, signed up as members very shortly afterwards. It was not suggested that they did not meet her criteria. Ms Burki admitted that CB would have done also. He also appears to have been an active current member.
- Ms Lacob makes the point, for what it is worth, that none of the three women suggests that they were offered the same men (except to the extent that Ms Wilson dated MP, whose name was given to Ms Burki before her membership was activated). The implication is that they are likely to have compared notes, and that had their matches overlapped, they would have said so. That may be right, but it does not take us much further in identifying the number of active male members, since many of those offered to Ms Severina and Ms Wilson will not have been current members.
- On any view, it seems to me, Mr Colville's 'guesstimate' of 60 active members, of whom between 5 and 8 were male, must have been a substantial underestimate. If he was right, Ms Burki could hardly have been sent 5 (or 6) profiles which matched her criteria; and – whatever one makes of the 72 names on the search produced by 70/30 - still less could 70/30 have produced a further twenty profiles. The evidence of Ms Severina and Ms Wilson is less cogent on this issue because it is not known how many of their profiles were of paying members. I conclude that as a junior probationary member of staff Mr Colville lacked the knowledge and understanding of the agency's operations to form a proper view of what was going on. But I see no reason not to accept his evidence of the difficulties that he and his colleagues had in making matches which satisfied members' criteria. His 'guesstimate' may have been wrong, but in my judgment it reflected a deeper truth, which was that (as he said) there were too few active members to enable the matchmakers to do their job properly and thereby to satisfy the clients for whom they were responsible.
- My conclusion from the evidence is that there are at the very most perhaps 200 active members of 70/30, and probably fewer. That points to a maximum of around 100 active male members. I see no reason to suppose that the position would have been different in 2014-2015. I cannot accept Ms Ambrose's estimate of around 800 active members, even qualified, as it was, by the inclusion of former members, let alone the Defence case of 1500, particularly since she, who as the owner of 70/30 has been uniquely well placed to produce documents to support that estimate, has wholly failed to do so.
- In my judgment, a membership of 100 active men cannot by any stretch of the imagination be described as a substantial number, even without considering how far that number would have to be reduced to allow for compliance with Ms Burki's criteria.
- The representations made by Mr Thomas were therefore false and misleading. Had Ms Burki known what the true size of the active membership was, she would not have joined 70/30. She was induced to enter her contract with 70/30 by Mr Thomas' false representations. It seems to me to be nothing to the point that she received 5 profiles in the first few weeks of her membership which apparently complied with her criteria.
- Mr Thomas was managing director of 70/30. It is admitted that he was at all material times acting as the company's agent. There has been no suggestion that he acted outside the scope of his authority. The company is answerable for his misrepresentations.
Knowledge of falsity
- Mr Thomas must have had a full overview of the size of the membership, as Ms Ambrose accepted in cross-examination. Although he did not use the term 'a substantial number', he undoubtedly communicated to Ms Burki a picture of the membership that was a gross exaggeration, as he was better placed than anyone to know.
- Did he realise that he was giving Tereza Burki such a misleading impression of what was on offer? For 70/30 to be liable in deceit, Mr Thomas must have intended her to understand his representations in an untrue sense, or at the least have deliberately used any ambiguity to deceive her. 'Even though the more natural and reasonable interpretation of the statement is that put on it by the claimant, and though on that interpretation it is untrue to the knowledge of the defendant, that will not suffice if the defendant did not intend it to be so understood' (Clark & Lindsell on Torts, 22nd edition, paragraph 18-25).
- It must be remembered that I have not heard from Mr Thomas. That is most regrettable. But I must not on that account shy away from drawing conclusions from the evidence. Mr Thomas was well aware in 2014 that Tereza Burki was a woman of 43 who wanted a new long-term romantic partner willing to give her a fourth child, and was contemplating the payment of £12,600 in order to find that person. He knew that 70/30's website boasted of having found partners for thousands of members. She would hardly have been interested in paying £12,600 to join an agency with only a hundred or so active current members. Whether or not she explained to him that it was important to her that the men available to be matched with her were active paying members, he must have known that, if he did not spell out to her that the database included headhunted men and ex-members as well as current paying members, she would assume that he was talking about current members who had paid large sums to find their ideal life partner. That would be the natural assumption of anyone contemplating paying a large sum to join a dating agency which sold itself on its international membership of high net-worth individuals. It seems to me inconceivable that he would not have understood that: indeed, it seems clear that at the November 2013 meeting, Ms Errante explained to him the importance of commitment, and that was why he boasted to Ms Burki and Ms Errante of the huge sums that some members paid for the service. So by talking to Ms Burki about the substantial number of suitable men on 70/30's database or 'on the books', he must, in my view, have known that he was giving her a wholly false impression.
- As I have said, the representations must have been made within the scope of his authority as the company's agent. His knowledge of the falsity of his representations is therefore to be attributed to 70/30.
Damages for deceit
- Ms Lacob submits that there is no entitlement to any refund of the price paid by Ms Burki, since rescission would not be available as the services provided could not be restored; and that since it was Ms Burki who refused to continue with the agreement, any loss was caused by her own refusal to use 70/30's services for the remainder of its term.
- Both submissions are misconceived. Rescission is an irrelevance. Damages for deceit should be the sum which serves to put the claimant into the position she would have been in if the representation had not been made to her: see Clerk & Lindsell on Torts, 18-41. In other words, it is nothing to the point that – realising she had been misled – she decided not to continue to use 70/30's services. In this case Ms Burki's loss is the amount that she was induced to pay, namely £12,600.
Exemplary or aggravated damages
- There is a claim for exemplary or aggravated damages. This is based on 'the manner in which and the motivation with which the defendant's tort was committed', and relies in particular on the nature of the services which 70/30 held itself out as providing, the personal significance that its services had for its clients generally and Ms Burki in particular, and the amount that it charged for its services.
- Mr Edwards submits that the case falls within the general principle recognised by Rookes v Barnard (No.1) [1964] AC 1129, where the defendant's conduct has been calculated by him to make a profit which may exceed the compensation payable to the claimant.
- I do not agree. It would not be justifiable to draw any inference to that effect. Nor, in my judgment, would it be right to make an award of aggravated damages simply because of the nature of the services offered, their significance for the client, and the amount charged. There was nothing about the performance by 70/30 of its contractual services that aggravated the injury done to Ms Burki.
Damages for distress
- Ms Burki also claims damages for distress, upset, disappointment and frustration. She gave very little evidence in support of this part of her claim, although she did say that she was very frustrated and in a state of emotional turmoil because she was so disappointed with the service that she had received from 70/30, in part because she was running out of time, as she put it, for having more children. She was very upset to have paid so much in the belief that 70/30 would help her with her goal of finding a new romantic partner and having another child, and she felt very let down by them.
- Mr Edwards relied on Kinch v Rosling [2009] EWHC 286 (QB), where Tugendhat J awarded a sum in general damages in respect of the humiliation, distress and anxiety that a businessman suffered as a consequence of his bankruptcy. The deceit was commercial, but caused him and his wife the greatest distress and anxiety. As the judge observed, the law does recognise that general damages under this head may be awarded on a modest scale; and assessment of damages for injury to feelings is inevitably done on a broad basis. In that case, Tugendhat J awarded the claimant £10,000 for suffering that extended over nearly seven years. Further support for this head of damage is provided by Saunders v Edwards [1987] 1 WLR 1116 (£500 compensation to disappointed buyers of a flat who were misled into buying it by fraudulent misrepresentations: this was a global sum designed to cover the whole of their occupation of the flat) and Shelley v Paddock [1979] QB 120 (where the same sum was awarded to a claimant for distress caused by being defrauded into buying a house in Spain to which the sellers had no title). Both cases are considerably more serious than the present claim, and £500 was worth very much more in 1979 and 1987 than it is now.
- In Ms Burki's case, she was worried about running out of time to have another child, and I can quite understand that she felt very let down and disappointed by the fact that Mr Thomas' claims for the service turned out to be untrue. On the other hand, she took two years to decide to join, and she was only a member between January and May 2015. Without meaning to be dismissive of her disappointment and sadness, I do not think that it can be compared with the ordeal endured by the claimant in Kinch v Rosling, or by the plaintiffs in the earlier cases referred to above. It seems to me that this head of damage is properly acknowledged by an award of £500.
SEVENTY THIRTY LTD V TEREZA BURKI
Words complained of
- There is no dispute that during April 2016, Ms Burki wrote and published online a Google review of 70/30's services.
- There was no evidence before me as to how such a review is accessed, but I think that I am entitled to take judicial notice of the process as I understand it from my own experience, since it is a commonplace of modern online activity. My understanding is that Google reviews are reviews of the performance of a business which internet users can access if they make a search on Google against the name of the business. A box appears beside the results of the search, summarising the nature of the business, giving its address, and offering a link to its website, as well as a link to reviews. Ms Burki's review will have been visible as one of a number of other reviews, but (as I understand it) only if the user clicks on the link to the reviews. The page provided for me in the trial bundle is headed 'Exclusive Matchmaking – Seventy Thirty'. The address of the business is given, and under that appears the number 3.9, followed by four stars and '8 reviews'. On the page in the trial bundle, only Ms Burki's review and two others are shown. Each review is given a star rating from one to 5, and the number 3.9 indicates, as I understand it, that the average star rating over the eight reviews is just under 4 stars. I have not been told whether Ms Burki's review was one of those visible on the first page of the reviews or whether it appeared lower down.
- Ms Burki's review ('the Google review') gave 70/30 one star only, and consisted of the words that follow. The words complained of and alleged to be defamatory of 70/30 are underlined.
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
- On 22 April 2016, Ms Burki published another review, this time on Yelp (www.yelp.co.uk), under the heading 'Recommended Reviews for Seventy thirty'. That also is common ground. As I understand it, Yelp is a review forum, which enables the public to post reviews of businesses and services.
- Ms Burki gave Seventy Thirty one star. The whole review ('the Yelp review') is complained of as defamatory of 70/30. It read as follows:
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
- Reference to the claimant, 70/30 Ltd, is admitted in each case.
Extent of publication
- The words complained of in the two reviews are alleged to have been published until 30 August 2016 to a substantial number of people within the jurisdiction of the court. As I say, I have no evidence as to the likely number of publishees of either review.
- Ms Burki's case is not entirely clear, because in response to the averment of publication to a substantial number of people (Particulars of Claim paragraph 5), counsel pleaded at paragraph 8 of the Defence that paragraph 5 was admitted, 'save that the claimant is required to prove the number of people to whom each of the Reviews was published, if relied on'. That was distinctly ambiguous, and the ambiguity should have been explored and resolved. If publication to a substantial number is admitted, a requirement to prove the number of publishees is otiose; so it seems unlikely that the extent of publication was intended to be admitted, although that is what Ms Lacob took the Defence to mean. It is not clear from Mr Edwards' skeleton arguments what his client's position is.
Meaning
- The natural and ordinary meaning of the Google review is pleaded as follows:
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.
- The natural and ordinary meaning of the Yelp review is said to have been as follows:
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.
- In response to the claimant's pleaded meanings, the Defence purports to plead the meanings of the two reviews. This is superfluous. The defendant should only plead the defamatory meaning in which she proposes to prove that the words complained of are substantially true, known to defamation practitioners as the Lucas-Box meaning, after the decision of the Court of Appeal in Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, and/or the defamatory meaning which she seeks to defend as honest opinion (see CPR 53PD paras 2.5, 2.6). However, I refer to those meanings below when I consider the substantive defences, because (as emerged from the defendant's response to a request for further information) the defendant does also rely on them for the purposes of her defences of truth and honest opinion.
- My task at this stage is to determine the single natural and ordinary meaning of the words complained of. That is the objective meaning that the hypothetical ordinary reasonable reader would understand them to bear.
- The principles are very well established and I summarise them briefly. They were stated by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14] as follows:
(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.
- Given the way in which the defence is pleaded, I should stress that the meaning which Ms Burki intended to convey is irrelevant: Jeynes (above), and Cassidy v Daily Mirror [1929] 2 KB 331, 354 per Russell LJ.
- The Google review must be understood in its context, namely as one of a series of reviews about the services provided by 70/30, which the reader will have understood is a dating agency; but it is not to be read for the purposes of ascertaining meaning as one of a series of connected articles amounting to a single publication, in the sense considered by Sharp J in Dee v Telegraph Group plc [2010] EWHC 924 (QB). As I understand it, the review would only have appeared in response to a Google search for 70/30, so the ordinary reasonable reader would have had some understanding of the business under review. In any event, the heading that appeared above Ms Burki's review, for which she was not responsible (Exclusive Matchmaking – Seventy Thirty) would have told the ordinary reasonable reader what 70/30's business was.
- Broadly, I accept the meaning put on the Google review by Ms Lacob. In my judgment, the words complained of in the Google review bear the natural and ordinary meaning that 70/30 does not have the means or intention to operate an effective matchmaking service, but is engaged in a fraudulent scheme to extract money from its clients for the benefit of its founder.
- All that I know of the Yelp review is that Tereza Burki's contribution appears to have been the first and only one. I am not aware of any contextual material, although the nature of 70/30's business was clear from the words which she used.
- The meaning which I prefer is again close to that pleaded by Ms Lacob. I conclude that the words complained of in the Yelp review bear the meaning that 70/30
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
- The words complained of in both reviews are unarguably defamatory of 70/30 at common law, because they would have substantially affected in an adverse manner the attitude of other people towards 70/30, or had a tendency to do so: Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 at [96]. The issue is in any event conceded on the pleadings. It was not suggested that the question of meaning (as opposed to serious harm) was affected by the proximity to the Google review of other, distinctly favourable, reviews.
Serious harm and serious financial loss
- 70/30 is a limited company. To have a sustainable claim in defamation it must surmount the threshold erected by s1, Defamation Act 2013:
(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.
- The effect of s1(1) was authoritatively explained by the Court of Appeal in Lachaux v Independent Print Ltd [2018] QB 594. In sum, Parliament has raised the common law bar set by Thornton so that the threshold has been raised from one of substantiality to one of seriousness. If the meaning of the words complained of conveys a serious defamatory meaning, then an inference of serious reputational harm ordinarily can and should be drawn accordingly. The seriousness of the harm to reputation will normally be evaluated having regard to the seriousness of the imputation conveyed by the words used, coupled with the context in which the words are used (for example, in a newspaper article or widely accessed blog).
- However, Lachaux was not concerned with the effect of s1(2). As Davis LJ said at [82(7)],
… 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).
- In Pirtek (Uk) Ltd v Jackson [2017] EWHC 2834 (QB) at [50] Warby J said this:
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": see Lachaux [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.
- I respectfully agree with that, and would only add that in my view the pronoun 'it' in s1(2) must stand for 'harm' (that is, 'harm to reputation'). So it is the harm to reputation that must have caused or be likely to cause serious financial loss, by contrast with s1(1), where the court has to consider, as it were one step further back, whether the publication of the words has caused or is likely to cause serious harm.
- It appears, therefore, that the court must be satisfied of two separate matters, namely (1) whether publication has caused or is likely to cause serious harm to the claimant's reputation, and (2) whether that harm has caused or is likely to cause the claimant serious financial loss. In either case, the word 'likely' has the same meaning of being liable, or having a tendency, to cause.
- In Euroeco Fuels (Poland) Ltd v Szczecin and Swinoujscie Seaports Authority SA [2018] EWHC 1081 (QB) at [71], Nicol J saw no reason, absent some clearer indication of Parliament's intention, to limit 'serious financial loss' to special damage, nor why serious financial loss should not, like other forms of serious harm, be capable of inference from the evidence.
- In her submissions on serious harm, Ms Lacob relied on earlier decisions on the effect of online reviews, in Brett Wilson LLP v Persons Unknown [2015] EWHC 563 (QB) and Bussey Law Firm v Page [2015] EWHC 563 (QB). Brett Wilson was a case of a solicitors' firm seeking default judgment on the basis of a much stronger pleaded case than 70/30's, but one of the factors relied on was the withdrawal of instructions by a single client, which might have cost the firm thousands of pounds in fees, coupled with the inference that many others might have seen the libel and gone elsewhere. That was a case where the highly defamatory words were visible as one of the top 5 results for 6 months whenever a user carried out a Google search against the firm's name. Bussey was primarily a decision about the defendant's liability as the author of the libel, not about serious harm, although it was a case where a defamatory review of the claimant firm seems to have been visible online (alongside a number of positive reviews) when the firm's name was searched for on Google, and the judge found that it was likely to have been read by a significant number of searchers, and by clients checking the firm out. Ultimately, both cases were decisions on their own facts, and they are of limited assistance.
- For Tereza Burki, Mr Edwards argued that since the publications complained of were taken down on 30 August 2016, any likelihood of causing serious financial loss would have crystallised long ago. He relied on the evidence of Mr Males, 70/30's accountant, that he could see no particular pattern in the monthly sales figures from May 2016, suggestive of a decline in sales which could be linked to publication of either review. (In fact, the figure for May 2016 was higher than that for April, whereas in 2015 it had been substantially lower. The sales figure for June 2016 showed a substantial drop from May, but it was a smaller drop than had occurred in the same month in 2015).
- This approach, in my view, confuses a tendency to cause serious harm with proof of special damage. In any event, serious financial loss to a company the size of 70/30 could be caused by even one potential client backing off as a result of a review, and that could not be ruled out by examination of sales figures.
- Mr Edwards also argued that account should be taken of the broader context in which the Google review (but not the Yelp review) was published, namely that it was the only negative review of eight, the others of which were apparently positive and enthusiastic.
- He argues that the principle in Associated Newspapers Ltd v Dingle [1964] AC 371 has no application where the other publications are not libels but encomia. Dingle is a case about ways in which a claimant's general bad reputation may be proved. It is authority for a rule that other publications to the same effect as the words complained of, or relating to the same incident as is referred to in the words, are inadmissible (subject to s12 Defamation Act 1952) in relation to the assessment of general damages for injury to reputation, whether the other articles are published by the defendant or others, and whether or not they are complained of. The decision re-asserts the common law rules as to the evidence by which a claimant's bad reputation may be proved (see per Warby J in Lachaux v Independent Print Ltd [2016] QB 402 at [74]). One of the ways in which it may not be proved is by way of previous (or indeed concurrent) publications to the same effect.
- I note also that Warby J, whose analysis of Dingle was approved by the Court of Appeal ([2017] EWCA Civ 1334 at [92]), found that there was no principled distinction to be drawn between the use of other articles in mitigation of damages and their use in the context of the s1 serious harm threshold ([83]). The ratio of Dingle was wide enough to extend to both situations.
- Mr Edwards submits that Dingle gives rise to a rule of causation, which prohibits the allocation of parts of the harm to different acts. He argues that nothing in Dingle deals with the position where surrounding publications so defuse the effect of the words complained of that no harm is caused and therefore no question of causation of harm can arise. If, as appears to have been the case with Ms Burki's short observations, the offending words appear in the context of a number of favourable reviews, the question of whether the s1 threshold has been overcome should be judged against the overall effect of the libel in that context. I am not convinced that Mr Edwards is right to see Dingle as a case about causation, but I do accept that the decision has no direct application to the admissibility of surrounding material which does not go to a claimant's general bad reputation.
- Nonetheless, I am not prepared to find that the sting of Ms Burki's article was drawn by the reviews that surrounded it. It is the impact on readers of her words that the court must consider. Readers may have read her review alone, without considering the positive reviews. A group of reviews is not analogous to an article, or two linked articles, in one newspaper, which must be taken as having been read as a whole. The position would be different if all the reviews could properly be treated as part of a single article (Dee v Telegraph Group plc [2010] EWHC 924 (QB); Charleston v News Group Newspapers [1995] 2 AC 65). That is not the position here. It seems to me that the court's focus at the stage of assessing serious harm has to be on the words published by the defendant, not on the impact of other material published by third parties with which it was placed online by Google.
- Applying to the Google review the principles stated by Davis LJ in Lachaux, the words complained of convey a very serious defamatory meaning, they were available to be read for a period of over four months, and they will have been seen by an unquantifiable but, I infer, substantial number of readers who were interested enough in 70/30 to search for it on Google. The s1(1) threshold is met.
- It is, I think, important that the Google review will have been seen by those who carried out a Google search for 70/30. Many of those who did so are likely, I infer, to have been considering using the services of 70/30, and it is reasonable to suppose that some of those will have been deterred by the review from taking matters further, notwithstanding the other favourable reviews, and whether or not they would ultimately have signed up. In that context, 70/30 relies on what it alleges is the decision of three prospective clients not to take up its matchmaking services because they had seen one or other of the two reviews, with consequent loss of fees. That forms the special damage claim, to which I turn below, but for present purposes, one of the three individuals claimed to have been deterred by reading Ms Burki's Google review. The loss of even one client and his fees would have been a serious financial loss to a company the size of 70/30. But all that has to be shown at this stage is a tendency.
- I infer from those factors that the harm done by the Google review was liable to cause 70/30 serious financial loss. That is not the same as holding that 70/30 has in fact suffered special damage.
- As for the Yelp review, that also conveyed a serious defamatory meaning, and was available to be read for over four months. From what I understand of Yelp, those who read the review will have been internet users who searched Yelp for 70/30. They will have known of 70/30 and will have wished to know more about it. In the absence of evidence, I do not know and cannot find that the review could have been found by searching against (say) 'matchmaking agencies'. I know nothing at all about the number of users of Yelp, let alone the number of people who searched for 70/30, but I note that 70/30 relies in support of its special damage claim on one potential client who is said to have backed away from joining 70/30 on reading the review.
- In the circumstances, albeit with some hesitation, I infer that the Yelp review was likely to cause serious harm to 70/30's reputation, and that the harm suffered by 70/30 from the Yelp review was liable to cause it serious financial loss.
Defences of truth and honest opinion
- By s2, Defamation Act 2013,
(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.
- It appears that the s2 defence is broadly intended to reflect the common law position (see paragraph 13 of the Explanatory Notes to the Act). I take it that the phrase 'substantially true' should be given the same meaning as it had in the common law defence: see Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB), where at [109]-[111] Eady J observed that the court should not be too literal in its approach or insist upon proof of every detail where not essential to the sting of the article, and that in deciding whether any given libel is substantially true, the court will have well in mind the requirement to allow for exaggeration, at the margins, and have regard in that context also to proportionality. 'In other words, one needs to consider whether the sting of a libel has been established having regard to its overall gravity and the relative significance of any elements of inaccuracy or exaggeration'.
- By s3, Defamation Act 2013,
(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.
- I have not had submissions from counsel as to the extent to which s3 changes the common law defence of fair or honest comment on facts truly stated. However, the Explanatory Notes to the 2013 Act state that s3 broadly reflects the common law while simplifying and clarifying certain elements.
- According to the Explanatory Notes, condition 1 is intended to reflect the current law, and embraces the requirement established in Cheng v Tse Wai Chan Paul [2001] EMLR 31 that the statement must be recognisable as comment as distinct from an imputation of fact. 'It is implicit in condition 1 that the assessment is on the basis of how the ordinary person would understand it'. It appears, therefore, that the question of whether a defamatory statement is a statement of fact or an expression of opinion will continue to be answered objectively by reference to the way in which the hypothetical ordinary reasonable reader would understand it. That in turn depends on the defamatory meaning which the statement is found to bear.
- Conditions two and three are said to aim to simplify the law by providing a clear and straightforward test, which is 'intended to retain the broad features of the current common law defence as to the necessary basis for the opinion expressed but avoid the complexities which have arisen in case law, in particular over the extent to which the opinion must be based on facts which are sufficiently true and as to the extent to which the statement must explicitly or implicitly indicate the facts on which the opinion is based'. The point is made that the facts that may need to be proved in relation to an article expressing an opinion on a political issue, comments made on a social network, a view about a contractual dispute, or a review of a restaurant or play will differ substantially. A comment about the artistic merit of a work of art, for example, or about the merits of a Government policy, may rely on no facts, true or false, but simply be the expression of a subjective opinion.
- Condition two, stated by s3(3), requires that the statement complained of indicated, whether in general or specific terms, the basis of the opinion. This is said to reflect the test approved by the Supreme Court in Joseph v Spiller [2010] UKSC 53 at [105].
- The common law required that the facts on which a comment is based must be true or privileged, and that the comment should explicitly or implicitly indicate, at least in general terms, the facts on which it is based (see Joseph v Spiller at [3] and [105]), not so that readers can judge for themselves whether or not it was well founded, but so that they can understand what the comment is about.
- The use of the term 'basis' in condition two appears to reflect Lord Phillips' conclusion in Joseph v Spiller that the commentator must identify in general terms what has led him to make the comment. To demand that the commentator identify 'facts' on which the comment was based would impose excessively narrow limits on the scope of the defence. The basis might be factual, or it might be something broader and less tangible, such as the style of an operatic production, or the characterisation in a novel, or the policy of a political party.
- If the basis is factual, then the factual basis must be true. In the light of the firm restatement in Joseph v Spiller of the common law requirement that comment be based on facts that are true, it would have been a very radical departure from the common law (rather than a 'broad reflection' of it) for Parliament to intend that it should be enough for a defendant to show a basis for his comment - when that basis consisted of facts - that was plainly untrue.
- Moreover, the first part of the third condition, stated at s3(4)(a), that an honest person could have held the opinion on the basis of any fact which existed at the time, must be intended to import a true fact. The word 'fact', without more, necessarily imports a quality of truth. A false fact is not a fact: if 'false fact' means anything, it means something wrongly stated to be a fact.
- The Explanatory Notes state that the third condition is an objective test, and that the reference to 'any fact' shows that any relevant fact or facts will be enough. 'The existing case law on the sufficiency of the factual basis is covered by the requirement that "an honest person" must have been able to hold the opinion. If the fact was not a sufficient basis for the opinion, an honest person would not have been able to hold it'.
- There is a defence of truth and honest opinion in respect of both publications. These defences are pleaded in a convoluted way, and they are not at all easy to follow. As I have explained, the Defence superfluously pleads the meanings which the words are said to bear, and then sets out a number of imputations of fact which are said to be wholly or substantially true. What is particularly unfortunate is that there is no attempt to plead either the Lucas-Box meaning, i.e. the defamatory meaning in which the defendant said that the words were true, or in which the words were said to be honest opinion. That failure has allowed the defendant to conceal her hand.
- The meanings pleaded are discursive and argumentative and purport to express the defendant's beliefs and views rather than to state the meaning contended for on her behalf. The claimant might have applied to strike them out and the pleas of truth and honest opinion that depended on them, but instead sought further information as to their intended purpose and effect. What emerged was that the defendant also relied on these passages for the purposes of her defences of truth and honest opinion, which is why I reluctantly set them out below. The defendant stated which of the meanings were relied on as matters of fact and which as opinion: those answers are set out below in italics after each meaning.
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
- Paragraph 13 of the Defence reads as follows:
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.
- 70/30 asked what the function was of these particulars. Were they relied on as additional meanings? The answer was no: to conflate two responses, they were 'purely factual propositions which the defendant accepts are conveyed by the reviews…. (and) which the defendant contends are wholly or substantially true'. In other words, they were particulars of truth (or, in the old common law language, particulars of justification), albeit thoroughly lacking in the necessary particularity. They applied to both reviews, except that (i) was relevant only to the Yelp review.
- It appears to me that the particulars amount to no more than this, that 70/30 charged a very substantial amount for a service which (probably dishonestly) induced clients to join by promising suitable matches who turned out not to be available, but which in the result failed (as 70/30 knew or should have known would be the case) to produce matches which corresponded to the client's stated criteria.
Defence of honest opinion
- The defendant relied on the reviews to the following extent as statements of opinion (Defence, paragraph 14):
(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'.
- It emerged from the further information supplied that these were said to be the opinions in the reviews that the defendant sought to defend. The opinion at (c), and the opinion at (b) that the defendant should be refunded the contract price, related only to the Yelp review.
Conclusions on truth and honest opinion: Google review
- The reality is that the evidence has covered a rather wider area than that envisaged by the defendant's particulars of truth. That was perhaps inevitable, given that the focus at trial was on Ms Burki's misrepresentation claim, with submissions on the libel and malicious falsehood action piggy-backing on the evidence as it emerged from Ms Burki's action. It seems to me that I must determine the issues of libel and malicious falsehood on the basis of the meanings which I have found and the evidence that is proved, rather than adhere pedantically to the defendant's pleaded case. It would be unrealistic to do otherwise.
- What I have found is that Mr Thomas falsely represented the size of the active membership of 70/30 to Ms Burki, and induced her to pay a substantial fee on the strength of his deceit. I have not found that 70/30 lacked a sizeable database (when former members and headhunted individuals are taken into account), or was not an effective matchmaking agency, or did not in the event provide Ms Burki with suitable matches. I have not, therefore, found that the business was a fundamentally dishonest or fraudulent operation, although I accept that at the time it probably had a short supply of suitable men. Had Mr Thomas explained to Ms Burki that the database included active members, former members who still wished to be matched, and people who had been headhunted and had agreed to be put on the database in the hope of finding a suitable partner, she would have had little cause for complaint.
- As far as the Google review is concerned, Ms Burki has therefore not proved that 70/30 lacked the means or intention to operate an effective matchmaking service, let alone that it was engaged in a fraudulent scheme to extract money from its clients for the benefit of its founder. In my view the defamatory allegations made in the Google review (the word 'scam' apart) are allegations of fact.
- It is not wholly clear whether or not the defendant intended to argue that the word 'scam' was an expression of opinion. At paragraph 10 of the Defence, as supplemented by the further information, that did appear to be her case; but at paragraph 14, as supplemented by the further information, it was not included in the case on honest opinion. I shall proceed on the basis that it was defended as an expression of opinion. In my judgment, it was an expression of honest opinion to the effect that 70/30's business model is essentially fraudulent. However, it was based on the facts which were untrue.
- The defences of truth and honest opinion therefore fail as far as the Google review is concerned.
Special damage - Google review
- There is a claim for special damage arising out of the Google review. It is said that three prospective clients decided not to take up 70/30's services. The pleaded case is that the first and second clients were deterred by the Google review and/or the Yelp review, but that in the case of the third it was the Yelp review. I therefore say no more about the third client in this context. The sums lost are put at £18,000 in the case of the first client (VS) and €12,600 in respect of the second client (MJ).
- The messages relied on are as follows:
(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.
- Unfortunately, there is very little other information about these potential clients.
- There is a note of a 'prospect meeting' between Mr Thomas and VS on 4 April 2016, in which VS apparently said that he wanted to join as a Diamond member on a reduced fee of £18,000, and would be in touch once he returned from Asia. On 20th April he told Mr Thomas that he did not want to join any longer as he had read a bad review on Google. Then there followed the email of 22 April set out above.
- There is a file note of a meeting dated 1 June 2016 between MJ and 'Susie' – presumably Ms Ambrose – in Croatia, in which MJ apparently said that she wanted to join at an agreed price of €12,600. There is no information as to which (if either) of the two reviews she saw. It might have been the Yelp review, not the Google review; or (given the reference to 'a few websites') it might have been neither.
- 70/30 has not persuaded me, on the balance of probabilities, that either VS or MJ were deterred from signing up for 70/30's services because of the Google review. That is what VS said in his email, and it is also what MJ said (assuming that she meant the Google review), but I cannot conclude on a balance of probabilities that the Google review was causative in either case. It seems to me that it is at least as likely that the review was advanced as a pretext for not proceeding. Each client had met either Mr Thomas or Ms Ambrose, and it would be surprising, given that all the other Google reviews of 70/30 seem to have been excellent, were a serious enquirer to call off a deal because of one review, and moreover a review which was neither literate nor reasoned, without at least discussing Ms Burki's claims with their contact (and there is no evidence that they did. VS seems not even to have known if Ms Burki was a real person). In MJ's case, moreover, she claims to have been influenced by other factors than a review or reviews by Ms Burki, and she does not identify the review or reviews that allegedly caused her to pull out. I am unable to conclude from the sparse evidence available, and without having heard from either potential customer, that the Google review was in reality causative of any special damage.
General damages - Google review
- The purpose of compensatory general damages in defamation is to compensate for injury to reputation, to provide vindication, and (where the claimant is an individual) to compensate for hurt feelings and distress. In the present case, the claimant is a limited company. It cannot suffer hurt feelings or distress. As Lord Reid said in Lewis v Daily Telegraph [1964] AC 234 at 262, 'A company cannot be injured in its feelings; it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money'. Even though Lord Reid made clear that such injury might involve damage to goodwill, the fact is that 'a company which is unable at trial to point to the slightest hiccup in its trading figures may be hard pressed to persuade a court that even an unpleasant libel has seriously damaged its reputation' (Gatley on Libel and Slander, 12th ed, 9.17).
- The only evidence of the extent of publication is a screenshot taken by Ms Ambrose on 9 August 2016 which, she maintains, 'shows the number of people who accessed the Google site in the previous month'. The screenshot shows a graph of users between April and August, and gives a total of 46,349 users and 68,102 page views. However, it is not apparent from the screenshot whether those numbers are the numbers visiting the 70/30 site, or the numbers who have searched for 70/30 and then clicked on the Google box that appears beside the search results, or the number visiting the review pages linked to the Google box, or whether the numbers relate to one month or several months, or what percentage of visitors is from England and Wales. The claim is limited to publication within the jurisdiction. It is impossible for me, without further evidence, to draw any conclusions from the screenshot about the number of internet users in England and Wales who would have read the Google review.
- I note, however, that figures produced by 70/30 for the number of enquiries received by 70/30 do appear to show a significant drop between May and August 2016 compared with 2015 and 2017. There is no special damage claim based on a fall off of business, but it does appear that there was a temporary drop in enquiries, which approximately coincides with the dates when the reviews were available online. However, as 70/30's accountant, Mr Males, accepted, it is not possible to draw any conclusions about the figures for turnover in 2016, except that July to September were lower than in 2015 and 2017, while May and June were better than 2015 and about the same as 2017.
- Mr Edwards submitted (in the context of whether or not the s1 serious harm threshold had been surmounted) that I should take into account the fact that the Google review was but one of a number of reviews, the others of which were or appear to have been enthusiastic about the services provided by 70/30. It seems to me that I ought to consider this submission in the context of mitigation of damage also.
- The argument would be that to take into account the other reviews would not offend against the rule in Dingle v Associated Newspapers Ltd [1964] AC 371, which is to the effect that the publication by others on other occasions of substantially the same libel is not admissible on a claimant's general bad reputation so as to reduce general damages. I agree that it would not offend against the rule in Dingle, because the other reviews are not being relied upon as proving 70/30's general bad reputation: they are being deployed for the very different purpose of showing that the impact of the defamatory review, in context, was neutralised by the generally favourable tenor of its context.
- There is limited evidence of what those laudatory reviews said. I have seen one page of Google reviews which includes Ms Burki's and two others (both very favourable), and which says that there were eight reviews in total. I have not seen the other five. I assume that the others were also favourable to 70/30. (The trial bundle also included what appeared to be a wholly separate batch of 56 Google reviews of 70/30, many of which were multiple reviews by the same person, and all of which gave 70/30 five stars. I can only assume, in the absence of evidence explaining them, that they related to a different period from that during which Ms Burki's review was online. If that is right, they are immaterial to any argument on mitigation of damages.)
- If the argument is sound, the damages which should be awarded to a claimant for the publication of a defamatory article will depend on the context in which that review appeared, even when the defendant had no control over that context. I am very doubtful that this can be right. It seems a very capricious determinant of the assessment of damages, not least because the numbers and nature of the other reviews will change from time to time, thereby (if Mr Edwards is right) potentially changing the meaning which should be ascribed to the words complained of. Moreover, it is impossible to know how many readers might have focused on the one bad review to the exclusion of the others. If the other reviews were also defamatory of 70/30, Ms Burki would not be able to refer to them in mitigation of damage because of the rule in Dingle; yet because they are favourable, Mr Edwards says that they should properly be taken into account. In the absence of any authority to that effect of which I am aware, I am reluctant to allow Ms Burki the benefit of the chance placement of her review among others for which she had no responsibility.
- There is, of course, a distinction to be drawn between the position of Ms Burki and that of Google. If Google had been sued for publication of Ms Burki's review, it could have relied on the context of favourable reviews as part of the overall publication for which it was responsible, because all the reviews could properly be treated as part of a single publication (Dee v Telegraph Group plc [2010] EWHC 924 (QB); Charleston v News Group Newspapers [1995] 2 AC 65). But in my judgment Ms Burki cannot pray in aid surrounding reviews which she has not published as mitigating the damage caused by hers.
- What can properly be said about the review, and this is part of Mr Edwards' argument that I find persuasive, is that its tenor – short, unreasoned, not literate – might have had a lesser effect on readers than if the same charges had been made in a more cogent and articulate fashion. That does not affect the meaning to be put on it, but it might reasonably be expected to have the consequence that less attention would be paid to it than might otherwise be the case.
- However, the point is of less significance than might be supposed, because it is certainly legitimate to take into account in mitigation of damage evidence properly admitted on some other issue.
- Evidence led to support a defence of truth can be relied on to reduce damages 'perhaps almost to vanishing point' (per Neill LJ in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120), even if it is not sufficient to make good the defence. I have found, as I have stated above, that 70/30's managing director deceitfully misrepresented to Ms Burki the size of the active membership of 70/30, and induced her to pay a substantial fee on the strength of his deceit. That does not prove the truth of the libel that 70/30 was a fraudulent operation, but in my view its effect must be to reduce very substantially the damages which would otherwise have been appropriate.
- In my judgment, a small but not nominal award is called for. I assess the general damages payable in respect of the Google review at £5,000.
Conclusions on truth and honest opinion - Yelp review
- The Yelp review is more measured. The sting of the defamatory allegations of fact here is, it seems to me, that 70/30 lures potential clients into its clutches by misrepresenting the availability of suitable matches, and then coerces them into accepting unsuitable matches. There is no evidence that the profiles shown to Ms Burki were of men who were not, at the time, genuinely available, but the allegation that Mr Thomas induced clients to pay very substantial fees by the use of false representation as to the size of the active membership has been shown to be true. Ms Burki has not shown that 70/30 coerces its clients to accept unsuitable matches who do not correspond to their criteria, but in my judgment proof of false representations which lure clients to pay substantial fees meets the sting of the factual allegations. Ms Burki has therefore proved that the factual allegations are substantially true.
- In my judgment, the allegations that 70/30 appears to be solely focussed on obtaining its fees, without giving anything in return, and to be operating in a fraudulent way, are plainly to be seen as the expression of opinion. The basis of the opinion is indicated, and in my view it is one which an honest person could have held on the basis of the false representations which I have found were made by Mr Thomas.
- I therefore conclude that the defendant has established a defence of truth and honest opinion in the case of the Yelp review.
- There is a Reply, which alleges that any statements of opinion contained in the reviews could not have been held by an honest person. I do not accept that. S3(5) of the 2013 Defamation Act shows that the defence of honest opinion is defeated if the claimant shows that the defendant did not hold the opinion in question, but that is not pleaded, so the point does not arise. There is a plea of malice in the Particulars of Claim, advanced as part of the case on malicious falsehood, but it has no bearing on the defence of honest opinion.
- The claim based on the Yelp review therefore fails.
MALICIOUS FALSEHOOD
- There is also a cause of action in malicious falsehood, founded on both the reviews. It is essential to the cause of action that they should have been published maliciously by Ms Burki, in the sense that she did not honestly believe that they were true, or was recklessly indifferent as to their truth or falsehood. Although the concept is not easy to understand in the context of malicious falsehood (as opposed to qualified privilege), it does appear that proof of a dominant improper motive would also suffice: see Gatley on Libel and Slander, 12th ed, 21-8.
- The plea of malice advanced in the Particulars of Claim relies on Ms Burki's threatening text messages (or emails) to Mr Thomas and Ms Ambrose (see [78-79] above), following the failure of solicitors' letters to satisfy her demands for a refund. Those messages, ill-judged as they were, do not begin to make a case on malice against Ms Burki. They are at least as consistent with a sense of righteous indignation and anger at the way she had been treated, as they are with knowledge of the falsity of the words which she had used or with a dominant motive of injuring 70/30. Her evidence, which I accept, was that she wrote the messages because she felt let down and disappointed and was probably over-excited. She wrote to Susie Ambrose 'to close the page'. I have no doubt, having listened to Ms Burki at length in the witness box, that she wrote her reviews in the belief (partly erroneous though it was) that her complaints were well-founded, and not with the motive of doing injury to 70/30, but rather out of a sense of honest anger at the way that she felt she had been treated.
- For that reason alone, the claims in malicious falsehood must fail.
CONCLUSION
- In conclusion, Ms Burki must have judgment on her claim for the total sum of £13,100. 70/30 must have judgment for £5,000 in respect of the part of the libel claim which relates to the Google review, but the claims for libel and malicious falsehood will otherwise be dismissed.
