Burki v Seventy Thirty Ltd & Ors

On an application for summary judgment, the claimant need only show a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial, while analysing whether factual assertions have real substance and considering evidence reasonably expected to be available at trial. It should hesitate to decide finally without trial where fuller investigation may affect the outcome.

Whether words amount to an express representation is assessed objectively. The court considers what a reasonable person would have understood from the words in their context. The pleaded representation need not reproduce the precise words used. Where the pleaded case has an evidential foundation and factual inconsistencies can properly be explored at trial, summary judgment should be refused.

Tereza Burki paid £12,600 for membership of a matchmaking service operated by Seventy Thirty Ltd. She alleged that the company had made representations about the size, wealth and active participation of its male membership, and about the suitability and availability of particular profiles.

The company applied under CPR rules 24.2(a)(i) and 3.4(1) for summary judgment or strike-out of those parts of the claim. A related defamation and malicious falsehood claim brought by the company had been brought together with the present claim, but was not formally consolidated. The issue was whether the pleaded representations had a realistic evidential basis and whether the words relied on could objectively bear the pleaded meanings.

1. Application dismissed. The company’s application for summary judgment concerning the Membership Representations and Profiles Representations was rejected.
2. The court applied the summary judgment approach stated in Easyair v Opal Telecom [2009] EWHC 39 (Ch). The claimant had to show a realistic prospect of success, meaning more than an arguable or fanciful case. The court had to avoid a mini-trial, but was not required to accept every assertion at face value. It had to consider evidence reasonably expected to be available at trial and hesitate before finally deciding a case where fuller investigation might affect the result. Those principles had been approved by the Court of Appeal, including in Global Asset Capital Inc v Aabar Block SARL [2017] 4 WLR 163.
3. Whether an express representation was made, and its effect, required an objective assessment of what a reasonable person would have understood from the words used in context. The court applied Webster v Liddington [2015] 1 All ER (Comm) 427.
4. The response to the request for further information, read in the commercial context of the company’s marketing, membership fees and description of its service, was capable of supporting representations that the company had a substantial male membership, that a substantial part of it actively participated in the service, and that active male members could reasonably be described as wealthy.
5. The words relied on concerning having suitable bachelors and matching the claimant with the perfect man were capable of representing that the profiles shown were of men participating in the service and available to be matched, and that some sufficiently matched the claimant’s criteria.
6. In any event, the claimant’s witness statement provided a sufficient evidential foundation. Any inconsistencies concerning the timing or detail of the conversations were matters for cross-examination at trial, not a proper basis for summary judgment.