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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> FRB v DCA [2019] EWHC 2816 (Fam) (28 October 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/2816.html Cite as: [2019] WLR(D) 656, [2020] 1 FCR 371, [2020] 2 WLR 671, [2020] Fam 211, [2020] 1 FLR 605, [2019] EWHC 2816 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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FRB |
Claimant |
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- and - |
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DCA |
Defendant |
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Justin Rushbrooke QC and Thomas Munby (instructed by Payne Hicks Beach) for the Defendant wife
Hearing dates: 7th, 8th October 2019
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Crown Copyright ©
The Honourable Mr Justice Cohen :
The parties were married in 2003 and C was born a number of years later. They separated in early 2017 and thereafter W petitioned for divorce and H issued financial remedy proceedings by way of a Form A. Those proceedings have been hotly contested and are currently listed for final hearing before me with a time estimate of 15-20 days.
The particulars of claim set out the various matters which H relies upon to constitute fraudulent misrepresentations by W that he was the father of C. It is unnecessary for me to set out any of those matters. Mr Rushbrooke QC, who appears with Mr Munby on behalf of W, accepts that if the representations were found to be made and were known to be untrue by W then they could amount to a fraudulent representation, albeit not actionable for reasons to which I will come. For the purposes of this application I have to assume that H can prove the ingredients of fraudulent misrepresentation on which he relies although it is important that I record that W denies them.
i) "The difference between any financial provision payable by the claimant to the defendant in these divorce proceedings from [the date they were commenced] compared with any financial provision payable by the claimant to the defendant in divorce proceedings which would have been commenced [at the time of C's birth] by the claimant";
ii) "All sums paid by the claimant in respect of the education and upbringing of C from his birth to date";
iii) "(a) All sums paid by the claimant to the defendant in respect of her living expenses, and (b) the value of all gifts given by the claimant to the defendant [from the discovery of the pregnancy until the present divorce proceedings commenced]".
The issues before me are as follows:
i) Does the tort of deceit in respect of intimate matters (in this case so-called "paternity fraud") exist between husband and wife?
ii) If it does exist, can it run as a separate cause of action in parallel with financial remedy proceedings or is it an abuse of the court's process and/or otherwise likely to obstruct the just disposal of those proceedings?
If the answer to either question 1 or question 2 is in the negative the claim may be struck out. However, says Mr Gruder QC, who appears with Ms McArthur on behalf of H, I can only strike out the proceedings in a case where the law is clear and established. If the case is complex or raises novel points of law, as H says it is and does, I should let the claim continue and determine it when I have heard all the evidence in the hearing listed to commence in January 2020.
Prior to the Law Reform (Husband and Wife) Act 1962 actions in tort between husband and wife were not permitted. Since 1962 there have been many such actions, most commonly in my experience, arising from negligence, in particular when one spouse has been injured by the careless driving of the other. Actions for the tort of deceit arise but rarely and in particular paternity fraud cases are few and far between. Indeed, the first reported action was not until 2000 and arose between two former unmarried cohabitees. The researches of counsel have revealed there has never been reported such a claim in the High Court between husband and wife.
I see no reason why a confidence trickster who obtains money or other property from a woman by lying to her and living with her, possibly for a short period, should be outside the scope of liability in tort; and the same must apply to a woman who fraudulently deceives a man in order to obtain his money or property. (This is not to say that this is such a case: whether it is or not is to be determined at trial). The law should encourage honesty between cohabiting couples rather than condone dishonesty (emphasis added).
Liability for deliberately made dishonest statements intended to mislead is very different. It is a tort of intention rather than one of negligence. For the tort of deceit not to apply as between cohabiting partners would be anomalous.
"For the purposes of this judgment, however, I shall assume that the domestic arrangements to which paragraph 1A of the amended defence refers are restricted to marriage and cohabitation: that is sufficient for the purposes of this case. The essential question is whether the tort of deceit applies as between a cohabiting couple"
shows that the judge's ruling is meant to apply to married couples as well as unmarried. That seems to me untenable in the light of the rest of the judgment.
i) The law will not recognise or allow actions for deceit between married couples where the representation alleged is as to the paternity of the child of the family…
i) I can see no logical reason why the law should encourage honesty between unmarried couples so as to create an obligation which if breached opens the wrongdoer to an action to deceit yet absolves from such liability a wrongdoing spouse. It seems to me contrary to public policy that the law should be so interpreted;
ii) There is nothing in the Law reform (Husband and Wife) Act 1962 which restricts which torts are actionable and the court should be slow to impose a blanket restriction not found in the Act;
iii) Whilst in most cases it may be that there are ongoing financial remedy proceedings where the wrong can be taken into account, there will be cases where that remedy is not open. For example, if a marriage breaks down and a husband re-marries before issuing his claim for financial remedy orders and he subsequently finds out that he has been the victim of paternity fraud he will have no remedy under the Matrimonial Causes Act, even if he was the financially weaker party;
iv) The plurality of the court in Magill considered that a mantle of privacy protected a spouse's extramarital sexual conduct and that "private matters" of sexual conduct and a false representation of paternity are not amenable to assessment by the established "elements of deceit". But as a critic of the judgment has pointed out these are objective questions of fact. The context may make proof of fraud difficult and highly difficult questions surrounding the assessment of damages may still arise. Sometimes such questions will be so difficult to answer as to make recovery impossible, but that does not to my mind exclude the existence of the tort.
The second ground for striking-out the claim is set out by Mr Rushbrooke QC and Mr Munby as follows:
(2) The claim is an abuse of the Court's process or is otherwise impermissible because, in circumstances where the parties are engaged in proceedings under the Matrimonial Causes Act 1973 in which a financial provision order is sought under s.23 of that Act, the claim is fundamentally incompatible with, and amounts to an improper collateral attack on, the Court's jurisdiction under s.23, including with regard to the mandatory requirements of s.25 of that Act.
This is expanded in subsequent paragraphs.
25.9 An Act of Parliament may impliedly displace the common law. In considering whether an act has this effect, the courts will consider the extent to which the legislative purpose would be undermined by the common law continuing to operate alongside it.
And at 25.11: Where legislation forms a comprehensively statutory scheme for dealing with a matter this may be taken as an indication that there is no intention for existing rights or remedies to apply in the same circumstances.
25. There are a number of general points to be made: First, I find it hard to conceive that where a married couple are engaged in contested ancillary relief proceedings, the application of a TOLATA claim by one against the other could possibly be justified. As the decision in the House of Lords in White v White [2001] 1 AC 596 makes plain, issues between a husband and a wife are to be determined within the four corners of the Matrimonial Causes Act 1973 and on the application of the statutory criteria there set out. The issue of separate proceedings to establish relatively arcane questions as to equitable entitlement between them is deprecated.
Laws LJ specifically underlined his agreement with that passage.
i) Assess what W would have got by way of lump sum if the marriage was dissolved at the time of C's birth;
ii) Assess what her MCA claim would be valued at today. The difference between (i) and (ii) is the level of damages;
iii) Assess the sums spent by H on living expenses and gifts to W and award them as additional damages. It would be wrong for W to benefit from them in any way;
iv) Proceed to do the section 25 MCA exercise;
v) Assess what W's needs are;
vi) Ignore any sharing claim that W might make for the period from the time of C's birth, such claim being relevant only in respect of the period from the date of the marriage to C's birth. In any event the damages would eliminate any sharing award thereafter;
vii) Consider whether W's outstanding needs, if any, should be met as part of a discretionary exercise.
"At the core of the legal policy which prevents recoverability of the identified loss in the Rees and McFarlane cases was the impossibility of calculating the same loss given the benefits and burdens of bringing up a healthy child. If it is impossible for the court to calculate the value to be attributed to the benefit of the child, so as to set off such value against the financial cost of the child's upbringing as a matter of legal policy in tort, how is the task possible for a court if such loss results from a breach of contract? Added to this is the sense, reflected in the judgments in Rees and MacFarlane, that it is morally unacceptable to regard a child as a financial liability.
(a) That the Claim Form and Particulars of Claim disclose no reasonable grounds for bringing the claim; and
(b) That the Claim Form or Particulars of Claim are an abuse of the court's process or are otherwise likely to obstruct the just disposal of the proceedings.
MR JUSTICE COHEN: