Club La Costa (UK) Plc v Gebhard & Anor [2008] EWHC 2552 (QB)

[2008] EWHC 2552 (QB)Case No IHJ/08/0877
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 24 th October 2008
Before
MR JUSTICE TUGENDHAT
Between
CLUB LA COSTA (UK) PLCClaimant(1) TOBY GEBHARDDefendants(2) INVENTORY SOLUTIONS (UK) LIMITEDDefendant
Jonathan Barnes (instructed by M Law) for ClaimantKate Wilson (instructed by Hand Morgan & Owen) for DefendantsHearing Hearing dates: 20 October 2008
Judgment
[1]The applications in this libel action raise questions about the offer of amends procedure under the Defamation Act 1996 (“DA”), ss.2-4. One question is as to whether proposals made by the Defendants in letters dated 15 and 28 April, 8 and 12 May, and 30 July 2008, or any of them, are qualified offers of amends within the DA s.2. If any of them are, then a further question arises as to whether, in respect of the meanings to which the offer does not relate, it remains open to the Defendants to rely upon either or both of two defences, namely, first that the words complained do not refer to the Claimant, and, secondly, that the words complained of were published on an occasion of qualified privilege. The Claimant also argues that in any event a defence that the words complained of do not refer to the Claimant has no real prospect of success.[2]Certain matters are common ground. In the words of the Particulars of Claim, the Claimant is a company selling holiday ownership packages commonly known as timeshare. The Claimant has been operating in the UK since 1995, and is a member company of a “family” of companies in the UK, Spain and other territories all of which trade under the brand “Club La Costa”. The first Defendant is the Managing Director of the second Defendant. The second Defendant supplies dispute resolution services to people who have bought holiday products in the UK and Europe. Ms Rickett is a Senior Customer Relations Officer employed by GE Money Home Lending (“GE”). That company provides financial services to companies operating under the Club La Costa brand (there is a dispute as to whether GE provides such services to any customer of the Claimant). The first Defendant had a telephone conversation with Ms Rickett on 13 February 2008.[3]The conversation of 13 February was recorded by GE and a digital copy made available to the Claimant. This is an action for slander and the words complained of are extracts from that conversation. It was a long conversation, and it is unnecessary to set out the transcript in full. The words complained of cover over two pages of single spaced text, and it is necessary to refer only to parts of those words, in the context in which they are relevant.[4]Paragraph 4 of the Particulars of Claim sets out the meanings alleged by the Claimant as follows: “4.1 The Claimant has been found by the Spanish Supreme Court to have been guilty of fraud in that it:4.1.1 held itself out as selling 5 star accommodation when in fact it only had 2 star accommodation worldwide, or at very best, 4 star accommodation;4.1.2 over-sold memberships for which it could not provide accommodation;4.1.3 unlawfully forced its members to pay management fees 4.2 The Claimant has engaged in such serious criminal conduct that it is the subject of an open criminal file an ongoing investigation by Europol since they have received approximately 200 complaints which warrant prosecution. 4.3 The Claimant knowingly and fraudulently sells as many holiday memberships as possible regardless of the fact that it is wholly unable to provide sufficient accommodation to service that number of memberships. 4.4 The Claimant has secretly set up a company and or/companies which fraudulently and reprehensibly conned the Claimant’s own members into paying £3,000 each or thereabouts, in the belief that the members’ holiday products would be resold by this company when in fact the Claimant’s sole intention was to unlawfully obtain additional money from its members.” 4.1.1 held itself out as selling 5 star accommodation when in fact it only had 2 star accommodation worldwide, or at very best, 4 star accommodation; 4.1.2 over-sold memberships for which it could not provide accommodation; 4.1.3 unlawfully forced its members to pay management fees[5]Objection is taken by the Claimant to a number of paragraphs in the Defence. They are: i) paras 3.1 and 4, insofar as these include a denial that the words complained of refer to the Claimant. The bases of this objection are(a) that a defence on this basis has no real prospect of success in the light of what was actually said in the telephone conversation, and in what was written in the letters referred to above as containing the alleged offer of amends, and(b) if there was an offer of amends as alleged, then the denial is inconsistent with the offer of amends which the Defendants claim to have made. ii) paras 6 and 8, (a) in so far as para 6 pleads a defence of offer of amends in accordance with DA s.4(2), on the ground that none of the letters referred to contain an offer which is an offer of amends within DA s.2, alternatively (b) that if there is an offer which was within DA s.2, then it has been accepted, and the Defendants are therefore precluded by DA s.4(4) from relying on both a defence of offer of amends in para 6 and the further defences, namely in para 3.1 and 4, that the words complained of did not refer to the Claimant, or, in para 8, that they were said on an occasion of qualified privilege.

The correspondence said to include an offer of amends

[6]The letters relied on as containing offers of amends include, so far as material, the following: i) 15 April 2008 (a letter not drafted by a solicitor): “As to my contention that there is evidence to support my contention that your client is under investigation by Europol. I was given this information by Mr [SG] … However, having discussed the matter again with him he reminded me that such statement referred to an entirely different company and resort as such I unreservedly apologise to your clients for those comments and undertake not to repeat them… As to my assertions that your client conducts itself in an illegal manner then those assertions are borne out of truth and justification and / or fair comment on a matter of public interest. Subject to the outcome of … proceedings [in the Swindon County Court issued by the Defendants clients Mr and Mrs H on 26 March 2008] then if our clients claims are not accepted by the courts then thereafter we may consider an offer of amends under [DA s.2]…” ii) 28 April 2008, in response to a letter from the Claimant’s solicitors, which enclosed draft apologies, and requested undertakings not to repeat the allegations, and an indemnity as to the Claimant’s costs, the Defendants wrote that they were prepared only to sign a limited letter of apology. The letter said: “As to the allegation that your client is being investigated by Europol I have already unreservedly apologised. As such we have amended your apology in relation that allegation alone and if you approve and return it to me I will duly sign it.” iii) 12 May 2008, in response to a letter from the Claimant’s solicitors in which they rejected the draft apology as inadequate, and observed that the Defendants could not, by reason of DA s.4(4), both rely on offer of amends and a defence of justification, the Defendants wrote; “I am not prepared to go beyond my letter to you of 28 April” iv) 30 July 2008, being the first of these letters written by solicitors, and referring to the previous letters: “QUALIFIED OFFER OF AMENDS … Our clients have made, and have not withdrawn, a qualified offer of amends pursuant to [DA s.2]. This offer is in respect of the following words [namely those of the words complained of that refer to Europol] which our clients accept bear the meaning that a company operating under the Club La Costa brand had engaged in criminal conduct and is the subject of an open criminal file and ongoing investigation by Europol since it has received approximately 200 complaints which warrant prosecution. Our clients offer to [sic] amends in respect of that meaning. However, this offer is made without prejudice to our clients’ defence in respect of any other defamatory meanings which the words complained of may have conveyed, that the words spoken were not capable of referring to Club La Costa (UK) Plc … The terms of our clients’ offer are [in short, to make a suitable apology, a draft of which is attached, to pay reasonable costs and compensation, each to be fixed by the court if not agreed, and an undertaking not to repeat the allegation]”. (emphasis added)[7]The proposed wording attached to the letter of 30 July includes: “I wish to make it clear that none of the companies within the Club La Costa family (whether Spanish or otherwise) and which operate under that brand are the subject of any Europol investigation. I now know that there is no foundation for saying so”.[8]That form of correction does refer to the Claimant. This follows from the fact that para 1 of the Defence admits that the Claimant “is a member company of a “family” of companies in the UK, Spain and other territories all of which trade under the brand “Club La Costa””.[9]The Defence was also served on 30 July 2008. In it the Defendants claimed that the words complained of referred to a company called Club La Costa SL, based in Tenerife (para 8.4). They also pleaded that the dispute involving the Defendants’ clients, who I shall refer to as Mr and Mrs H, is a dispute with a company called Club La Costa Vacation Club Ltd. Mr and Mrs H allege that representatives of that company made misrepresentations to them, and that GE had made finance available to them to enable them to purchase membership from that company.[10]On 12 August 2008 solicitors for the Claimant raised objections to the Defence that they now raise before the court. They said that if the defence of qualified privilege went forward it would be met by a plea of malice. They argued that in the previous correspondence the first Defendant had acknowledged that the words complained referred to the Claimant. They also claimed that Club La Costa SL is a dormant company “which is neither referred to in consumer correspondence nor in consumer contracts”.[11]On 1 September 2008 solicitors for the Defendants wrote maintaining that there was a valid qualified offer of amends made, referring in particular to their letter of 30 July 2008. In response to this, on 11 September, solicitors for the Claimant maintained their objections to the Defence. But on the footing that the Defendants were saying that there was a valid qualified offer of amends, solicitors for the Claimant wrote that they would accept it on certain premises or conditions which they then set out. These were(1) that the Defendants accepted that the words recited in the letter of 30 July 2008 referred to the Claimant,(2) that the offer of amends was in relation to the meaning set out in para 4.2 of the Particulars of Claim,(3) that upon this acceptance by the Claimant of the Defendants’ offer, the Defendants waived any defence they might have had under DA s.3(2) in relation to any of the other meanings pleaded in para 4 of the Particulars of Claim, and(4) that in the event that the Defendants were to succeed in the action on any aspect of their Defence concerning the meanings other than the one in para 4.2, the Defendants would not seek to resile from the offer of amends in respect of the meaning in para 4.2.[12]On 26 September 2008 solicitors for the Defendants replied that the Defendants stood by the offer of amends they had made and were “not prepared to accept your revisions of it”. On 13 October solicitors for the Claimant wrote that the Claimant had accepted the offer of amends on the premises listed in their letter of 11 September.[13]In their Skeleton Argument prepared for the hearing the Claimant’s primary case is that para 6 of the Defence must be struck out because the purported offer of amends does not come within DA s.2. Alternatively, if it does, then it must be on the basis that the premises set out in the Claimant’s letter of 11 September and, the Claimant asks the court to enforce the accepted offer pursuant to DA s.3.

The law

[9]Sections 2 to 4, which came into force in 2000, provide, so far as material, as follows:
"2. Offer to make amends (1) A person who has published a statement alleged to be defamatory of another may offer to make amends under this section. (2) The offer may be in relation to the statement generally or in relation to a specific defamatory meaning which the person making the offer accepts that the statement conveys ("a qualified offer"). (3) An offer to make amends - (a) must be in writing, (b) must be expressed to be an offer to make amends under section 2 of the Defamation Act 1996, and (c) must state whether it is a qualified offer and, if so, set out the defamatory meaning in relation to which it is made. (4) An offer to make amends under this section is an offer (a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party, (b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and (c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable. …. (5) An offer to make amends under this section may not be made by a person after serving a defence in defamation proceedings brought against him by the aggrieved party in respect of the publication in question. (6) An offer to make amends under this section may be withdrawn before it is accepted; and a renewal of an offer which has been withdrawn shall be treated as a new offer. 3. Accepting an offer to make amends (1) If an offer to make amends under section 2 is accepted by the aggrieved party, the following provisions apply. (2) The party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends, as follows. (3) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed. (4) If the parties do not agree on the steps to be taken by way of correction, apology and publication, the party who made the offer may take such steps as he thinks appropriate, and may in particular – (a) make the correction and apology by a statement in open court in terms approved by the court, and (b) give an undertaking to the court as to the manner of their publication. (5) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings. The court shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly. (6) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings. … (10) Proceedings under this section shall be heard and determined without a jury. 4. Failure to accept offer to make amends (1) If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply. (2) The fact that the offer was made is a defence (subject to subsection (3)) to defamation proceedings in respect of the publication in question by that party against the person making the offer. A qualified offer is only a defence in respect of the meaning to which the offer related. (3) There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of - (a) referred to the aggrieved party or was likely to be understood as referring to him, and (b) was both false and defamatory of that party; but it shall be presumed until the contrary is know that he did not know and had no reason to believe that that was the case. (4) The person who made the offer need not rely on it by way of defence, but if he does he may not rely on any other defence. If the offer was a qualified offer, this applies only in respect of the meaning to which the offer related. (5) The offer may be relied on in mitigation of damages whether or not it was relied on as a defence."
[14]The Court of Appeal has made clear the status of the regime created by DA s.2. In Warren v Random House [2008] EWCA Civ 834 at [17] the Court said:
“While the statutory scheme has many of the attributes of a contract, and is certainly consensual, we are inclined to think that it is not a contract in the sense of creating contractual rights and obligations, because it contains express provisions as to what should or should not happen next and the court retains a role. Nevertheless, we have reached the conclusion that Ms Page is right to accept that, whether or not a contract properly so called comes into operation, the court would permit either party to resile from it on one of the traditional contractual grounds. It is not, however, necessary to reach a final conclusion on this point in this case because it is not suggested by Mr Browne that the appellant could rely on any such grounds on the facts of this case.”
[15]Accordingly, the principles applicable to formation of contract are of assistance in determining whether an offer of amends has been made and, if so, whether it has been accepted. See Loughton Contracts v Dun & Bradstreet [2006] EWHC 1224 (QB) paras 21-22 (where Gray J held that an acceptance subject to conditions was analogous to a counter offer in contract, and was not acceptance of an offer) and S D Marine Ltd v Craig Powell [2006] EWHC 3095 (QB) para [25] (where Eady J held that a purported offer was equivocal and so incapable of acceptance).[16]There is also authority on the question whether a defendant can make an offer of amends in respect of part of a publication (as the Defendants seek to do here). As Ms Wilson submits for the Defendants, Gray J held that a defendant can do that: Warren v Random House [2007] EWHC 2856 (QB); [2008] 2 WLR 1033 para 42. Mr Barnes for the Claimant does not suggest before me that Gray J was wrong in that conclusion, but he points to the fact that Gray J was not concerned with a case where one of the defences was qualified privilege.

Was there an offer of amends within DA s.2?

[17]Mr Barnes submits that the language of DA ss.2-4 excludes the possibility of an Offer of Amends accompanied by a reservation to the effect that the person making the offer does not admit that the words complained of refer to the person who alleges that a defamatory statement has been made about him.[18]Ms Wilson submits that the words of the sections leave open the possibility that the person making the offer need not accept that the words complained of refer to the person who alleges that a defamatory statement has been made about him. As she puts it “the language employed is capable of permitting a defendant to deny reference, at least if its qualified offer is on a particular statement rather than a less serious meaning”. She submits that such a construction also advances the legislative purpose, which is to facilitate resolution of defamation disputes without the need for a trial.[19]Neither party in this case submits that there are severable parts of the statement, one of which may refer to the claimant and others of which may refer to persons other than the claimant. The parties’ contentions in relation to reference are discussed in more detail below. But on the facts of this case, if the Defendant can only make an offer of amends within DA s.2 if they accept that the words complained of refer to the Claimant, then the Claimant is in a strong position to argue that that acceptance must also apply to the parts of the words complained of in respect of which no offer of amends is proposed. Ms Wilson submits that the Defendants should not be put in the position of having to concede a defence to those other parts of the words complained, just because they wants to make an offer of amends in respect of one part of the words complained of.[20]In s.2(1) there are the words “a statement alleged to be defamatory of another”. At this stage the statute is plainly referring to an allegation (and no more). And the allegation is both that the statement (ie the words complained of) is defamatory of, and that it refers to, the person making the allegation.[21]Certain words and expressions used in the statute are not those which have previously been used in defamation case law, and they are not now used otherwise than in relation to DA. For practical purposes, “a person who has published a statement alleged to be defamatory of another” is more commonly known as the alleged publisher of the words complained of. He is usually a defendant or prospective defendant. The word “another” is usually a claimant or prospective claimant. “The person making the offer” in s.2(2) and later sections is usually referred to as the alleged publisher. “The aggrieved party” in s.2(4) and later sections is usually referred to as the claimant or prospective claimant.[22]In s.2(2) the statute refers to “a specific defamatory meaning which the person making the offer accepts that the statement conveys”. That makes clear that the person making the offer must accept that there is “a specific defamatory meaning” which the words complained of convey. The question is: can he make that concession without at the same time conceding that the statement is defamatory of (that is to say, refers to) the person making the allegation?[23]I do not think so. A statement cannot be defamatory in the abstract. In my judgment “a specific defamatory meaning” in s.2(2) must mean a specific meaning defamatory of the person making the allegation.[24]It is true that meaning and reference are commonly addressed as separate issues in submissions. A statement can refer to a person without being defamatory of him. And a statement can be defamatory of a third party without referring to the person who is making the complaint. But if the statement is accepted to be defamatory, then in my judgment it must, in the context of this statute, be defamatory of the person making the allegation or complaint.[25]If it is not defamatory of the person making the allegation, then a correction of the statement may be of benefit to some third party, but it is not something of which the person making the allegation is entitled to complain. It makes little sense that a person making an offer of amends should be required to make a suitable correction (under s.2(4)(a)) of a statement which does not refer to the person who is making the allegation or complaint. The only sensible form of correction must be one which does refer to the person making the allegation or complaint (whether or not it also refers to anyone else – and it is to be noted that the draft included in the letter of 30 July 2008 does refer to the Claimant). And the correction must also contain an acceptance that the original statement referred to the person who makes the allegation or complaint. Otherwise it would not be a correction of any statement previously made, but rather a statement about the person making the allegation or complaint, unrelated to any previous statement about him.[26]Ms Wilson submits the phrase “aggrieved party” merely refers to someone who is alleging that he has been defamed, that is to say, such a person as is referred to in s.2(1). But the phrase “aggrieved party” is not used in s.2(1). It first appears in s.2(4) and following sections. That is, it first appears after s.2(2). But at s.2(2) the person making the offer accepts that the statement conveys a defamatory meaning. So from then on the question whether the statement is defamatory or not defamatory is no longer a live issue: it has been conceded. So from that point onwards the person making the allegation is no longer merely making an allegation: that person has an admitted grievance. It is this that explains why he is from then on referred to as the person aggrieved.[27]In s.4(3) there is a presumption that the person making the offer did not know that the statement complained of “referred to the aggrieved party or was likely to be understood as referring to him”. The form in which the statute frames this presumption appears to assume that the statement did refer to the aggrieved party, but that that is a fact which the person making the offer is (subject to rebuttal) presumed not to know.[28]Finally, s.4(4) provides that if the offer of amends is made but not accepted, and the matter goes to trial, and the defendant chooses to rely upon it as a defence (in accordance with s.4(2)), then he may not rely on any other defence. Ms Wilson accepts, rightly in my view, that a denial or non-admission that the statement refers to the claimant is “any other defence” (within s.4(4)), and so cannot be relied upon if the defendant chooses to rely upon his offer of amends defence. So if the matter proceeds to trial with reference pleaded by the claimant (as it always must be), and with the defendant relying on an offer of amends as a defence, the defendant will not be permitted to traverse the plea of reference. The effect of that will be that the defendant is taken to admit that the statement refers to the claimant: see CPR 16.5(5).[29]It follows that the purported offer of amends in the letter of 30 July is not an offer within DA s.2.The meaning which the Defendants accept that the statement bears is “that a company operating under the Club La Costa brand had engaged in criminal conduct …” The letter explicitly includes the phrase:
“in respect of any other defamatory meanings which the words complained of may have conveyed, … the words spoken were not capable of referring to Club La Costa (UK) PLC”
. The offer is at best equivocal. There is no suggestion that the parts of the statement the subject of the intended offer are so distinguishable from the other parts that the parts that are the subject of the offer do refer to the Claimant if the parts which are not the subject of the offer do not refer to the Claimant. And the meaning “a company operating under the Club La Costa brand …” is not a meaning of which the Claimant complains, or could complain, unless the Claimant is itself one of those companies.[30]It also follows that the letter of 11 September 2008 cannot be construed as an acceptance of an offer of amends within s.3(1), if no offer of amends within s.2(1) has been made. The letter may have been a constructive attempt to move the negotiations forward in the hope that agreement might be reached on the four premises set out in that letter. But it was rejected as such by the defendants. The letter of 11 September is not capable of making an offer which was not within s.2 into an offer which is within s.2.[31]There are further reasons why the letter of 11 September might not be an acceptance in any event, even if the letter of 30 July had been an offer of amends within s.2(1). The fourth premise or condition requires that the Defendants agree not to resile. The right to resile on one of the traditional contractual grounds was a right which the Court of Appeal in Warren, in the passage cited above, thought that counsel in that case had rightly conceded, although the Court of Appeal did not have to reach a final conclusion on that point. If there is such a right under the DA scheme, then what the Claimant was seeking in the fourth premise of the letter of 11 September was agreement by the Defendants to a provision which was not included in the Defendants’ offer. It would follow that, on a contractual analysis, the letter of 11 September could only be a counter offer, which was in turn not accepted.[32]Ms Wilson accepts, again rightly, that if she cannot succeed on the purported offer of 30 July then she cannot succeed on any of the earlier letters referred to above. They are set out above only in so far as they are referred to in, and might cast light upon, the letter of 30 July.[33]It follows that para 6 of the Defence cannot succeed and must be struck out. I have reached this conclusion without needing to consider the submissions Mr Barnes made based on the report of the Neil Committee (Supreme Court Procedure Committee, July 1991, Chapter VII). But the conclusion I have reached is consistent with the recommendations of that Report.[34]I do not need to address Mr Barnes’s further argument that it is impermissible to combine, in one defence statement of case, both reliance upon a defence under DA ss.2-4 in respect of one meaning which is accepted to be defamatory (pursuant to s.2(2)) and a defence that other parts of a statement made on the same occasion (which are not the subject of an offer of amends) were published on an occasion of qualified privilege. The gist of the argument is that qualified privilege is a defence which relates to an occasion, and not to parts of a statement made on one occasion. It follows, so the argument goes, that if there is an acceptance within s.2(2), that is inconsistent with a contention that the statement in question was made on an occasion of qualified privilege. Ms Wilson points to cases such as Hamilton v Clifford [2004] EWHC 1542 (QB) where, on one occasion, a person may make parts of a statement which are protected by qualified privilege, but other parts which are in no sense germane to the subject matter which attracts privilege, and which are thus not protected. But she does not submit that the words complained of in this case include any which are in no sense germane to the subject matter of the privilege pleaded in the defence. If she cannot rely on the offer of amends defence, she wishes to rely upon qualified privilege in respect of all the words complained of. I do not need to reach any conclusion on this argument of Mr Barnes.

Summary judgment in relation to reference

[35]However, I do need to address Mr Barnes’s argument that the Defendants have no real prospect of success in their defence that the words complained of do not refer to the Claimant. Mr Barnes submits in the alternative that there should be an early ruling on this issue, if I cannot resolve it in this hearing.[36]Both parties refer to the approach the court must take to deciding an issue which may be within the province of the jury: Alexander v Arts Council of Wales [2001] 1 WLR 1840; Safeway Stores plc v Tate [2001] QB 1120; Culla Park Ltd and others v David Richards and others [2007] EWHC 1687 (QB) [41]-[49].[37]Mr Barnes submits that the court has before it no less than all the relevant material that the trial judge might have on the subject, including the whole transcript of the conversation. There is a difficulty with this submission. As already noted, the words complained of in this case were spoken to a single person, Ms Rickett of GE. As Ms Wilson rightly notes, the issue of identification or reference is to be decided on the same principles as those which govern the question whether the words complained of are capable of a defamatory meaning: Gatley on Libel and Slander 10th ed para 7.3. One of these principles is that it is necessary to take into consideration not only the actual words used, but the context of the words: the issue is whether a reasonable person with the knowledge of Ms Rickett would understand the words complained of to refer to the Claimant. See Gatley paras 3.28 and 7.3.[38]In the Defence the Defendants refer to dealings between the first Defendant and Ms Rickett prior to the conversation in question and between Mr H and Ms Rickett. In relation to Ms Rickett’s understanding they rely on her knowledge of the complaint by Mr and Mrs H, whom the Defendants were assisting. The Defences refers to the entirety of the conversation of 13 February.[39]Ms Wilson took me to passages which she submits exclude the Claimant as being referred to. These include the following. Early in the conversation there is a reference to “Club La Costa” followed by the words:
“they are a Spanish limited company”
. It is common ground that the Claimant is not a Spanish limited company. A few lines further on in the transcript the first Defendant is recorded as saying that Mr and Mrs H had a contract with “the service company Club La Costa Vacation Club”. During the hearing Ms Wilson handed up a copy of the draft Summons in the Swindon County Court in which Mr and Mrs H are named as claimants and the Defendants include Club La Costa Vacation Club Ltd and GE, but not the Claimant. Further on in the transcript Ms Rickett is recorded as saying that Mr H had written to her referring to “Club La Costa” and saying that “everything looked fine on the credit agreement and it was executed properly”. I do not have a copy of the credit agreement referred to, which appears to be a credit agreement to which GE was a party, and which Ms Rickett might therefore be expected to have known about.[40]Ms Wilson also handed up a statement from Mr Nelson, solicitor to the Defendants, to which he exhibited print outs from Companies House identifying seven companies which have “Club La Costa” as part of their name.[41]Mr Barnes is entitled to respond that the significance of that is that there may be other potential claimants, in addition to, and not necessarily in substitution for, the Claimant. The fact that several persons may be referred to in a statement is not inconsistent with any one person being referred to.[42]However, it does seem to me that Ms Rickett had, or may have had, information which is not before me and which forms part of the context which may be relevant to the question of reference. Unless and until it is apparent that all the relevant information is before the court, neither I nor any other judge could safely embark upon deciding whether the words complained of are capable of referring to the Claimant.[43]Mr Barnes also relied upon passages from the correspondence which he submits contain admissions. Ms Wilson disputes this interpretation, and submits that even she is wrong, the Defendants are free to resile from any admission that the first Defendant may have made, and that in the letter of 30 July it is made clear that no such admission is made.[44]In all these circumstances I am unable to reach a determination of the issues whether the defence that the words complained of do not refer to the Claimant has or has not a real prospect of success.

Conclusion

[45]For the reasons set out above para 6 of the Defence will be struck out. The applications made by the Claimant succeed to that extent but no further.