Burki v. Seventy Thirty Ltd, Seventy Thirty Ltd v. Burki [2018] EWHC 2151 (QB)

A recent High Court judgment offers a vivid glimpse into the real-life world of “Wry Society”, a regular feature in the Financial Times How to Spend Itmagazine, which holds a mirror up to its readership by satirising the tastes and foibles of High Net Worth Individuals in pursuit of expensively “curated” lifestyles.

The judge, HHJ Richard Parkes QC, opened his judgment with this paragraph:

Gertrude Stein[1] 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.

The woman looking for romantic happiness was Tereza Burki, a divorcee with three children, who, in late 2014, at the age of 43, paid a fee of £12,600 (a concession to her on the standard fee of £18,000) for 12 months’ active membership of Seventy Thirty Ltd (“70/30”), a dating agency which described itself as an “Exclusive Matchmaking and Elite Introduction Agency”, offering a “quintessential, world class matchmaking service to a sophisticated and particular clientele”. Its services were “interactive and personalised”, with its founder and proprietor, Susie Ambrose, describing it in a post-trial statement reported in the media, as “a niche, exclusive agency, not a mainstream, mass-market online dating service. We are not going to have thousands of members because there simply aren’t thousands of single, wealthy, high-calibre prospects out there”.

As the court’s decision shows, however, it is one thing to differentiate your dating service from “Plenty of Fish” (a free online dating website), but another to give the impression that there is more caviar available for your clients than is really the case.

Ms Burki spent some time considering whether or not to join 70/30 after her first approach to the agency in 2013. As the judge said “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.

In the course of a number of meetings with 70/30 staff, including its then managing director, Lemarc Thomas, before signing up for membership, Ms Burki was shown profiles of men who were said to meet her criteria and be actively seeking a romantic partner like her. For example, one who she found attractive “was pictured perched on the bonnet of an expensive car in front of what appeared to be a substantial house” and she was told that his profile fitted her criteria.

But Ms Burki was disappointed in 70/30’s service once she had joined, although she was sent potential matches from its membership database. She ended her membership within a few months of activating it, complaining that she was not able to meet any men matching the representations made to her by agency staff before she joined, and anxious that time was running out for her to have another child.

After requesting and being refused a refund of her membership fee, Ms Burki eventually, and successfully, sued 70/30 for misrepresentation and deceit.

The judgment explores the history of Ms Burki’s (and two other women’s) dealings with 70/30, and 70/30’s working practices and the composition of its database in great detail. The database contained three categories of individuals: current paying members, former members whose contracts had expired but who were still available to be matched, and individuals who had been approached by 70/30 and were willing to be added to the database to be matched, although they had not signed up as active paying members. Although it was an issue at the heart of the case, the actual number of active paying members on the database at any given time was remarkably unclear. The judge was critical of the evidence of the figures put forward by 70/30, and of the evidence of its founder, Ms Ambrose, generally, describing his impression of her as “a person who is not interested in detail and is prone to making broad statements in an imperious manner that brooks no contradiction”. Far from the pleaded Defence figure of 1,500 current active members, or even the 800 put forward in evidence, the judge concluded that there were only about 200, i.e. a maximum of around 100 active male members, at the time of Ms Burki’s membership. Commitment by a prospective partner to an active paying membership was a significant factor for Ms Burki, and she said that she would not have joined 70/30 if she had understood the inclusion of the third category on the database. The judge agreed with her that this was not clear in 70/30’s contractual terms and conditions, even though she admitted that she had not read them — “ As she charmingly and no doubt correctly put it, ‘In matters of the heart one is not rational’.”

The judge observed that:

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.

The judge ruled that in the course of meetings before Ms Burki signed up for membership, Mr Thomas — who chose not to give evidence at the trial, an attitude the judge found “astonishing” — must have known that he was giving a false impression of the number of wealthy male members who were actively engaged in 70/30’s matchmaking services. That was the deceit, not, as one commentator has described it, “promising to find her a partner to fulfil her requirements”. As the judge said, “a membership of 100 active men cannot by any stretch of the imagination be described as a substantial number.”

70/30 was ordered to refund Ms Burki’s membership fee of £12,600 and to pay her a further £500 — less than she had hoped to recover — for distress, upset, disappointment and frustration.

In its turn 70/30 sued Ms Burki for libel and malicious falsehood in two online reviews, one on Google and one on yelp.co.uk, which she had written, and which remained published online for about four months. As the judge said, accessing such reviews is “a commonplace of modern online activity”. In both reviews Ms Burki gave 70/30 only one star for its services and added strongly critical comments, which the judge said were “unarguably defamatory”, and which in both cases met the legal threshold of causing or being likely to cause serious harm to 70/30’s reputation, which, as 70/30 is a company, requires causing or being likely to cause serious financial loss. The decision illustrates that this is a fairly low threshold for a small company — the likelihood of loss of even one client and his fees would have been serious to a company the size of 70/30. Ms Burki pleaded in her defence that both her reviews were true and/or her honest opinion. Many people have expressed surprise that Ms Burki could win her claim for deceit but still be liable for accusing 70/30 of being fraudulent. But the court held that her expressed opinion in her Google review that 70/30 was a ‘scam’ was based on facts which were untrue. Its business was not fundamentally dishonest or fraudulent, but entirely genuine. The case illustrates how easy it is for careless words to lead to liability — Ms Burki was ordered to pay damages of £5,000 to 70/30 for this. However, the judge ruled that the “more measured” Yelp review was based on factual allegations which were substantially true. He rejected 70/30’s claims of malicious falsehood in relation to both reviews, accepting that Ms Burki 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.”

The overall outcome was that Ms Burki was awarded £13,100 damages, of which £12,600 was no more than repayment of her original subscription to 70/30, on her claim, and 70/30 was awarded £5,000 on its claim, leaving Ms Burki with a net £8,100 from the litigation. No costs judgment has (yet) been published, but the costs incurred by each side must be many, many multiples of the amounts in dispute in either claim, and will represent its most significant financial consequence. Observers not personally or professionally involved with the case may never find out the level of these costs, or how the burden of them ultimately falls, and cannot make any reliable guess either, without knowing whether any compromise proposals which might affect a costs decision were made by either side. Although dating agencies may have significant numbers of dissatisfied customers (Citizens Advice Bureaux were reported as having dealt with 300 complaints in 2017), few can afford to take the risk of High Court litigation on this scale.

It is striking to contrast the exhaustively thorough 271 paragraph High Court judgment, following a week-long hearing[2] in Ms Burki’s case, with the summary way a rather similar case was dealt with in New South Wales in 2004[3]. In that case, a Mr Galletti, who “wanted to meet a woman who was single, a non-smoker, slim and without children”, had paid AUD 770 to a dating agency, which had told him that it had specific numbers of women in two named towns in New South Wales (Dubbo and Mudgee) that he could meet if he joined it. The agency then appears to have provided him with profiles of women, including a number who “were ruled out because some had children, some were not slim and some did not want to go out with him”. He was then told that he would have to pay a further fee if he wished to meet someone. The Consumer, Trading and Tenancy Tribunal of New South Wales held a hearing within a month of Mr Galletti’s application being filed. The hearing must have taken a relatively short time, as Mr Galletti attended it by telephone. The judgment consists of twelve terse paragraphs, each one sentence long, and including one: “The majority of the women in Mudgee and Dubbo did not meet the criteria required by the applicant”, which, read alone, no doubt casts the female population of Dubbo and Mudgee in an unfair light, and concluding with a finding that the conduct of the agency was misleading and deceptive and ordering repayment of Mr Galletti’s AUD 770 membership fee.

Cases like this make for diverting reading. Partly because they “let daylight in on magic” and expose in pedantic lawyerliness what lies beneath the packaging and selling of happiness to consumers. And partly because they prompt a mixture of flinching from sharing their experience and a touch of sympathy for people who are willing to expose their emotional disappointment in shopping for happiness to the public gaze through litigation. Many online comments have been harshly judgmental of Ms Burki’s hopes and expectations.

45 years ago, in Jarvis v. Swans Tours [1973] QB 233, the Court of Appeal decided that Mr Jarvis, a local authority solicitor who holidayed alone, should be compensated for his disappointing skiing “house party in Mörlialp” package booked with Swans Tours. In my mind, this has become a classic passage of prose description of holiday disappointment, as comforting in its own way to reread in the light of even slightly similar experiences as is Dickens’s comic account of the disastrous amateur performance of Mr Wopsle’s Hamlet in Great Expectations, after coming home from a disappointing evening at the theatre.

In Jarvis, Lord Denning memorably described the gap between promise and reality. Swans brochure said:

“House Party Centre with special resident host. … Mörlialp is a most wonderful little resort on a sunny plateau … Up there you will find yourself in the midst of beautiful alpine scenery, which in winter becomes a wonderland of sun, snow and ice, with a wide variety of fine ski-runs, a skating rink and exhilarating toboggan run … Why did we choose the Hotel Krone … mainly and most of all because of the ‘Gemütlichkeit’ and friendly welcome you will receive from Herr and Frau Weibel. … The Hotel Krone has its own Alphütte Bar which will be open several evenings a week. … No doubt you will be in for a great time, when you book this houseparty holiday … Mr. Weibel, the charming owner, speaks English.”

The reality was that:

[Mr Jarvis] was a man of about 35 and he expected to be one of a house party of some 30 or so people. Instead, he found there were only 13 during the first week. In the second week there was no house party at all. He was the only person there. Mr. Weibel could not speak English. So there was Mr. Jarvis, in the second week, in this hotel with no house party at all, and no one could speak English, except himself. He was very disappointed, too, with the ski-ing. It was some distance away at Giswil. There were no ordinary length skis. There were only mini-skis, about 3 ft. long. So he did not get his ski-ing as he wanted to. In the second week he did get some longer skis for a couple of days, but then, because of the boots, his feet got rubbed and he could not continue even with the long skis. So his ski-ing holiday, from his point of view, was pretty well ruined.

There were many other matters, too. They appear trivial when they are set down in writing, but I have no doubt they loomed large in Mr. Jarvis’s mind, when coupled with the other disappointments. He did not have the nice Swiss cakes which he was hoping for. The only cakes for tea were potato crisps and little dry nut cakes. The yodeler evening consisted of one man from the locality who came in his working clothes for a little while, and sang four or five songs very quickly. The “Alphütte Bar” was an unoccupied annexe which was only open one evening.”

Poor Mr Jarvis with his Gemütlichkeitfrei sojourn of mini-skis and little dry nut cakes. At least, 45 years ago, he was not at risk of damages for libelling Swans Tours in an internet review posted in a moment of “honest anger” at the way he had been treated.

[1] A woman whom it is difficult, if not impossible, to imagine engaging an agency to search for a high net worth individual to fulfil her dreams

[2] And an earlier one-day hearing and 52 paragraph judgment on an application by 70/30 for summary judgment on parts of the claim, at https://www.bailii.org/ew/cases/EWHC/QB/2018/1570.html

[3] Galletti v. Personal Management Consultants (PMC) Pty Ltd (General) [2004] NSWCTTT 424 http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCTTT/2004/424.html