Burki v Seventy Thirty Ltd & Ors

So sang The Beatles in 1964. The parties in these two claims would agree and disagree. Seventy Thirty Limited (‘70/30’) is a company providing romantic matchmaking services for wealthy single people. It describes itself as having matched thousands of affluent and successful people. Tereza Burki (‘Ms Burki’) is one of its former clients. In late 2014 she paid 70/30 a fee of £12 600 in return for introductions to rich eligible men. She was dissatisfied (to put it mildly) with the service she received. She has sued 70/30 in deceit and misrepresentation for the return of her membership fee and for damages for ‘distress, upset, disappointment and frustration’.

The claim by 70/30 relates to matters published online by Ms Burki. In 2016 she posted very critical online reviews of 70/30’s services, calling it (inter alia) a ‘scam’ and ‘fraudulent’. 70/30 has sued her for defamation and malicious falsehood as a consequence.

The two claims have been brought together, but not formally consolidated, by an order of Master Thornett dated 12 October 2017. They are due to be tried in June 2018.

The matter comes before me in relation to Ms Burki’s claim against 70/30. The company has applied to strike out parts of Ms Burki’s Re-Amended Particulars of Claim, or for summary judgment in respect of those parts of her claim.

I take the following factual summary from Ms Burki’s Re-Amended Particulars of Claim dated 14 June 2017.

Ms Burki is a divorced mother of three who was born in 1971. At the relevant time 70/30 held itself out on its website as being an ‘Exclusive Matchmaking and Elite Introduction Agency’. Its website said, among other things:

These claims, and other matters published by 70/30 about its services, are referred to in the Re-Amended Particulars of Claim as the ‘Online Statements’.

In 2013 Ms Burki approached 70/30 about becoming a member and had various conversations with LeMarc Thomas (‘Mr Thomas’), its then managing director. Her case is that on multiple occasions during conversations in 2013 and early 2014 Mr Thomas as 70/30’s agent made the following express, alternatively implied, oral representations of fact:

70/30 had a database of individuals which included a substantial number of men who had membership of 70/30’s services (‘the Male Membership’);

70/30’s Male Membership comprised men who were actively participating in 70/30’s matchmaking services, or at least included a substantial number of men who were actively participating (‘the Active Male Membership’);

The Active Male Membership comprised men who could reasonably be described as ‘wealthy’.

I will refer to these three representations collectively as ‘the Membership Representations’, as per the Re-Amended Particulars of Claim.

In or around April/May 2014, Ms Burki indicated the following necessary criteria for the attributes which she sought in a new partner:

Male;

Openness to having more children.

The following attributes were stipulated by Ms Burki as ‘preferred’, but as ones which she did not intend to be strict requirements:

A life-style that was similar or more affluent than her own;

A relatively high level of remuneration, such as might be typical in finance or a similar field;

Resources and the willingness frequently to travel internationally, and in particular her ideal partner would be someone with multiple residences.

After Ms Burki had set out her criteria, her case is that Mr Thomas expressly represented to her that 70/30’s active male membership included a substantial number of men who were ‘suitable’. Her case is that this entailed an implied representation that Mr Thomas had reasonable grounds for that 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.

Ms Burki said that Mr Thomas reassured her when she expressed concern that a lot of men aged 40 – 60 sought women younger than themselves and younger than her. He said 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 will call the representations referred to in the preceding two paragraphs the ‘Suitability Representations’.

Mr Thomas showed Ms Burki profiles of men whom she agreed either fulfilled her criteria or were sufficiently close to fulfilling them. He represented to her that this first set of profiles were of men who were active male members, or alternatively were individuals actively participating in 70/30’s services, and whose own criteria sufficiently matched her profile.

At a later meeting Mr Thomas also showed Ms Burki further profiles of men who she agreed either fulfilled her criteria or were sufficiently close to fulfilling them. He represented to her that these profiles were of men who were active male members, alternatively who were individuals actively participating in 70/30’s services, and whose own criteria sufficiently matched Ms Burki.

The following representations are therefore pleaded relating to the profiles of the 70/30 male members which were shown to Ms Burki (‘the Profiles Representations’), namely that they were men who:

Had paid for and were actively participating in 70/30’s services; alternatively, if they had not paid, were actively participating in 70/30’s services;

In either case, had criteria that sufficiently matched those of Ms Burki.

In or around October/November 2014 Ms Burki entered into a contract with 70/30 to become a ‘gold member’ of 70/30 for a price of £12 600. After that she was sent a profile of a man referred to as ‘MP’. Her account became active on 28 January 2015.

Following the activation of her membership, Ms Burki was dissatisfied with the service provided by 70/30. She says she was not introduced to any of the men whose profiles she had been shown. She alleges that when she enquired specifically about MP, she was not given a satisfactory explanation. Further, she says that the profiles which she was shown were insufficiently close to her criteria.

70/30’s application for summary judgment relates to that part of Ms Burki’s case which relies on the Membership Representations and the Profiles Representations. These are said by Ms Burki to have been false in the following ways.

In relation to the Membership Representations it is said that they were false in that:

70/30 did not have a substantial number of members who were men, or in any event,

70/30 did not have a substantial number of members who were men and who were both actively participating in 70/30’s services and could reasonably be described as ‘wealthy’.

It is pleaded that the Profiles Representations were false in that:

Some or all of the men whose profiles were included were not members of 70/30; further or alternatively,

Some or all of the men whose profiles were included were not actively participating in 70/30’s services at the material time; further or alternatively,

Some or all 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 Ms Burki’s attributes.

It is also alleged that the representation in para 12, supra, was false in that 70/30 did not, as Mr Thomas represented, have a substantial number of members who were men.

By a request for further information under CPR r 18.1 dated 27 October 2017 (‘the Request’), 70/30 sought particulars of the words used by Mr Thomas in respect of the Membership Representations and the Profiles Representations. In her response of 10 November 2017 (‘the Response’), Ms Burki confirmed that the representations were made expressly, and she set out the gist of the words used.

70/30 submits that it is not arguable that the words said by Ms Burki in her Response to have been used by Mr Thomas can give rise to the Membership Representations (save in one respect) and the Profile Representations as pleaded. Hence, it seeks summary judgment in relation to that part of her case. It acknowledges that it is not necessary for the pleaded representation to precisely match the words used. As Jackson LJ said in Webster v Liddington [2015] 1 All ER (Comm) 427, para 39, in determining whether there has been an express representation, and to what effect, the court has to consider what a reasonable person would have understood from the words used in the context in which they were used. However, Mr Cole, for 70/30, argues that even applying that objective test, a reasonable person would not have understood from the gist of the words described in the Response that 70/30 was making the pleaded Membership Representations (subject to one exception) or the Profile Representations, and there is nothing discernible from the context which alters this. Accordingly, he submits that there is no realistic prospect of Ms Burki succeeding on this part of her claim, and that I should therefore give summary judgment for 70/30 on it pursuant to CPR r 24.2(a)(i), or alternatively that I should strike out the relevant paragraphs in the Re-Amended Particulars of Claim pursuant to CPR 3.4(1). As a subsidiary point, he also says that if summary judgment is given on the Membership Representations, or it is struck out, then the suitability representation in para 12, supra, must also go.

I will discuss the two challenged sets of Representations and the Response later in this judgment.

In response, Mr Edwards on behalf of Ms Burki submits that there is more than sufficient evidence to support Ms Burki’s pleaded case, such that the application for summary judgment must fail because she has at least a realistic prospect of succeeding on this part of her claim. He relies on Ms Burki’s witness statement of 5 April 2018 (prepared in response to 70/30’s summary judgment application) and what she says in that statement about what Mr Thomas said to her at the various meetings.

Again, I will say more about this witness statement later in this judgment.

The proper approach to an application for summary judgment pursuant to CPR r 24.2 was set out in Easyair v Opal Telecom [2009] EWHC 39 (Ch), para 15, where Lewison J (as he then was) gave the following guidance on whether or not the court should give summary judgment:

The court must consider whether the claimant (ie, the party resisting the application for summary judgment) has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman [2001] 2 All ER 91.

A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472, para 8.

In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman , supra.

This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel , supra, para 10.

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550.

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 .

These principles have been approved on a number of occasions by the Court of Appeal: see, for example, Global Asset Capital Inc v Aabar Block SARL [2017] 4 WLR 163, para 27.

In its Request, in relation to the Membership Representations, 70/30 asked, insofar as Ms Burki was alleging that they were made expressly, her to state ‘the precise words (alternatively the gist of the words) said to have been used by Mr Thomas on each occasion when he made a Membership Representation.’

In her Response, Ms Burki provided the following information, saying that she ‘clearly’ recalled the gist of Mr Thomas’ representations at their meetings, and that she recalled some of the precise words he had used. These are shown in single quotation marks in the following extract from the Response:

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.

70/30 also asked Ms Burki to particularise the facts and matters relied on insofar as she was alleging that the Membership Representations were made impliedly. In response Ms Burki said:

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.

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.

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.

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):

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).

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.

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.

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.

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. Para 6 of the witness statement states:

To the extent that Mr Cole suggested the witness statement is inconsistent with what is said in the Response, or elsewhere, then in this case any such inconsistencies are a matter for cross-examination at trial and they do not provide a proper basis for the grant of summary judgment. I note, for example, that Ms Burki’s pleaded case is that the Membership Representations were made by Mr Thomas in late 2013 and early 2014, whereas para 6 of the witness statements appears to relate to what was said in or around March 2013 when Ms Burki first approached 70/30 and met with a female member of staff. However it seems to me that this is not of such a fundamental nature that I can say that Ms Burki has no realistic prospect of succeeding on her case that the Defendant made the Membership Representations.

It follows that I reject 70/30’s application for summary judgment on the Membership Representations.

In relation to these, in its Request 70/30 again asked Ms Burki to specify, in respect of each occasion when Mr Thomas is said to have the representation referred to, whether it was made expressly or impliedly and, if expressly, the precise words (alternatively the gist of the words) said to have been used by Mr Thomas on each occasion.

In her Response, Ms Burki stated that her recollection was that the representations were made expressly and that:

‘We have the bachelors you dream of meeting’, or very similar words;

The Defendant could match the Claimant with ‘the perfect man’ based on her ‘exact criteria’; ‘the perfect for you gentleman’

‘We offer the crème de la crème’ matches for our members

The Defendant referred to the ‘perfect man’ as being man with whom the Claimant could start a family.”

I reject the submission that a reasonable person would not have understood these words to have amounted to the Profiles Representations.

It seems to me that the premise of all these statements is that the men whose profiles Ms Burki was being shown were available to be matched with her; in other words, that they had paid for and were actively participating in 70/30’s services, or alternatively, if they had not paid, they were nonetheless actively participating in 70/30’s services. Indeed, if they were not participating in 70/30’s services then they would not be available to be matched with anyone.

Also, the statement that 70/30 could match Ms Burki with ‘the perfect man’ whose profile would be based on her ‘exact criteria’ seems to me to be a representation that among the men whose profiles she was being shown were men whose criteria sufficiently matched those that she had specified.

But even if I am wrong about that, then Ms Burki’s witness statement provides evidence on which the court could be satisfied that Mr Thomas made the Profiles Representations. It is sufficient to quote parts of paras 15 and 17 of that statement:

In my judgment, these paragraphs more than bear out the pleaded Profiles Representations.

For these reasons, I dismiss 70/30’s application for summary judgment in respect of the Membership Representations and the Profiles Representations.