Athena Law successfully represents client in defamation claim against TATOC
Athena Law is pleased to announce that it has successfully represented its client, TESS (Timeshare Exit and Support Services) Limited in its claim against the Timeshare Association (Timeshare Owners and Committees) Limited (“TATOC”).
TESS is a paralegal company registered in England and Wales which provides paralegal services, including services to timeshare consumers who are in dispute with developers that operate within the timeshare industry, selling and managing portfolios and timeshare properties and long term holiday products.
TATOC holds itself out as a consumer representative body for timeshare owners in Europe which it says was established to “safeguard and enhance the timeshare holiday experience to existing and progressive users and to be the voice of owners”. TATOC claims that it represents the interests of 75 resorts and some 750 individual consumer members.
The TATOC board consists of 6 voluntary members including Mr Harry Taylor who sits as TATOC’s executive chairman and CEO. By its own admission, TATOC is partly funded by the Resort Development Organisation (“RDO”) which represents a number of timeshare resorts in Europe.
In the capacity described above, TATOC has for several years worked with UK Government Departments and Agencies, including Trading Standards ,and the Police and has also liaised with the European Commission for review of the original 1994 Timeshare Regulations.
TATOC is part of the “timeshare task force” which is an industry funded collection of companies who seek to identify and tackle fraudulent companies and to give advice to timeshare consumers.
The TATOC website (www.tatoc.co.uk) was established in 2010/2011 and through that website it purports to provide information and guidance for timeshare consumers.
The TATOC website contained a number of consumer guides, including guides warning consumers not to deal with companies that operate and market themselves via cold calling. On its website TATOC also published a “Cold Callers” list between 2009 and December 2015.
It was alleged by TESS that the Cold Callers list operated by TATOC operated effectively as an industry “blacklist” and the inference of that list was that the companies named therein had to be dealt with cautiously by members of the public and the list itself was couched in terms that companies appearing on that list were likely to operating in a misleading manner or potentially unlawfully.
In September 2015 TATOC identified TESS as a cold caller, publishing its name on the list of cold callers. Shortly following this publication, TESS wrote to TATOC strenuously denying that it had ever cold called any of its clients and denied using, at all, such methods to obtain clients. TATOC refused to remove TESS from the website and accordingly TESS instructed our Stephen Boyd of Athena Law who engaged a specialist defamation barrister, Mr Adam Speker of 5RB Chambers to settle proceedings for defamation.
The proceedings were commenced at the Queen’s Bench Division of the High Court; such proceedings being issued on 3rd December 2015 and by which TESS alleged that its appearance on the TATOC Cold Callers list and the natural meaning of the words complained of (being cold caller) in the context of a blacklist meant or was understood to mean that:
1. TESS was a scam company that had been cold calling timeshare consumers since 2013 and continued to do so.
2. As a consequence, there were very strong grounds to suspect that TESS were engaged in fraudulent activity designed to steal money from timeshare owners.
3. Further and in the alternative, it was a clear innuendo of the Cold Caller list that TESS had in some way obtained data relating to timeshare owners.
TESS alleged that for the purposes of Section 1 of the Defamation Act 2013, the publication and continued publication of the words whereby TESS was identified as a cold caller had caused and was likely to continue to cause serious financial harm to TESS’s business and therefore serious harm to its reputation.
In response to the Proceedings, TATOC refused to admit liability, refused to remove the publication, refused to apologise, refused to give any undertakings that it would not repeat the publication and refused to compensate TESS for the damage it had suffered.
The Trial in this matter came before His Honour Judge Turner at Liverpool District Registry, Queen’s Bench Division of the High Court on Monday 15th May 2017. Shortly before the Hearing TATOC informed TESS’s representatives that it had terminated retainer of its solicitors as it was allegedly unable to fund its Defence to Trial. At the Hearing before His Honour Judge Turner, TATOC did not appear. His Honour Judge Turner considered the Claimant’s evidence and heard submissions from the Claimant’s Counsel and satisfied himself that the Claimant had been defamed and that the purpose of the Cold Caller list was to identify companies that by innuendo or inference could be regarded by members of the public as “scam” companies or potentially “scam” companies. The Judge found that there was no evidence that TESS did cold call and was satisfied therefore that the publication was defamatory and was also satisfied that as a result TESS had suffered substantial harm. As a result of the Judge’s findings:
1. Judgment was entered for the Claimant.
2. TATOC was Ordered to pay the Claimant:
(a) £75,000 by way of general damages
(b) £100,000 by way of special damages
(c) £100,000 in costs
3. Further, TATOC was Ordered to refrain from publishing or causing to be published defamatory words of or about the Claimant or such similar words which may suggest the Claimant is any way a scam company which has been cold calling timeshare owners since 2013 and continues to do so or that the Claimant is any way engaging in fraudulent activities or has in any way obtained data relating to timeshare owners as was inferred by the Cold Caller list.
TESS had an advantage over most clients that instruct Athena, in that it understands what is involved in legal proceedings, quickly got hold of the issues and identified the documents that could prove beyond doubt (a) that it was not a cold caller and (b) the publication had caused it significant financial harm. A true example of the client working hard with its legal team to achieve justice.
Athena would also like to recognise the skilful way in which its Counsel Mr. Adam Speker of 5RB Chambers lead the team to and at trial.
It would also be remiss of the writer if he did not congratulate the two young lawyers at Athena Law Miss Alex Heatley and Miss Chelsea Longworth who gave invaluable assistance in preparing the case for trial. The trial judge was particularly complimentary about the way in which the trial bundles had been organised, and how the case had been presented generally. This demonstrates the importance of having a team in place to deal with complex litigation.
Athena Law’s client has now been exonerated but only following incurring significant legal costs in pursuing this matter to Trial. If the Claimant did not have the resources to pursue this matter, then undoubtedly its reputation would have suffered continual damage. The case also demonstrates the danger of internet publications or the operation of a de facto blacklist, such as the Cold Caller list, where the publisher does not take adequate steps to establish the truth of the content of the publication.
The moral of the story seems clear. If you are going to publish serious allegations about a third party you need to ensure that what you are saying is true, otherwise you could face significant financial claims under the Defamation Act 2013.
About the Author
Stephen Boyd is one of the owners and co-founders of Athena Law, a firm of solicitors regulated by the Law Society and the Solicitors Regulatory Authority.
Mr. Boyd has been practising in commercial and consumer litigation for 15 years, and has developed a niche practice in dealing with timeshare disputes and indeed was one of the first UK Solicitors to work in this area and has appeared in all forms of media including television, print and radio.