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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: https://www.bailii.org/ew/cases/EWHC/Fam/2019/2816.html Cite as: [2020] 1 FCR 371, [2019] WLR(D) 656, [2020] Fam 211, [2019] EWHC 2816 (Fam), [2020] 2 WLR 671, [2020] 1 FLR 605 |
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version
of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published
version
of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
FRB | Claimant |
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| - and - |
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DCA | Defendant |
____________________
Vardags)
for the Claimant husband
Justin Rushbrooke QC and Thomas Munby (instructed by Payne Hicks Beach) for the Defendant wife
Hearing dates: 7th, 8th October 2019
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
The Honourable Mr Justice Cohen :
v
CD (No.1 and No.2) in which I have given judgments.
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 thevarious
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) thevalue
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.
v
B (Paternity: Damages for Deceit) [2001] 1 FLR 1041, a decision of Mr Justice Stanley Burnton (as he then was) and A
v
B (Damages: Paternity) [2007] 2 FLR 1051, a decision of Sir John Blofeld. In each case the man alleged that he had been fraudulently deceived by the mother, with whom he was in a relationship, that he was the father of the child. In each case the court had to consider whether the tort of deceit applied to domestic relations.
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 isvery
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.
vary
or revoke an order for maintenance made against him and he continued "however, these considerations do not apply where the parties are not married, and it is not discriminatory for the procedures and remedies available to unmarried couples within this court to differ from those available to married couples by reason of the remedies available to the parties in matrimonial proceedings".
"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.
v
B was a similar case but the judge also in that case had to assess damages. He found McFarlane and Another
v
Tayside Health Board [2000] 2 AC 59 was binding authority upon him that damages for the financial costs of bringing up and caring for a child and living expenses cannot be awarded. Mr Gruder says that the judge was wrong to do so.
v
Y where the defendant appeared in person.
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…
v
Magill [2006] HCA 51 where a powerful court of six judges headed by Gleeson CJ was assembled. Three judges gave one judgment and the other three gave individual judgments, all with somewhat differing reasons, in respect of intimate matters such as paternity. The thrust of five of the judgments, generalising to perhaps an impermissible degree, is that it would only be in
very
rare circumstances that the tort of deceit would apply as between husband and wife.
view
is the tort of deceit can exist between husband and wife in respect of intimate matters and that W's answer that H's claim can always be subsumed within a financial remedies application is not sufficient. I refer to the following matters:
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 thevictim
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.
v
Prazic [2006] 2 FLR 1128, where Thorpe LJ said as follows:
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 Whitev
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 bevalued
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.
values
as at that time.
value
of the
various
gifts (as yet unidentified) which H has given W excluding from that
value
any benefit that H may have received from them.
v
B that led him to say that "In my
view
it is quite impossible to split these sums of money (the sum allegedly spent on family living expenses) and allocate them in any percentages to any of these 3 people. There is no evidence to enable me to do so. They went on family living (paragraph 65)" and thus to conclude that he was unable to make any award of damages in respect of the living expenses is not one that arises in this case as it is possible to see by reference to W's budget in the financial remedy proceedings how much of the living expenses were personal to her. I disagree that the budget provides either the clarity or reliability that would be needed for such an exercise.
v
Citibank N.A. [1997] AC 254 makes it clear that the claimant must give credit for any benefits which he has received as a result of the act.
v
IVF Hammersmith Ltd [2019] 2 WLR 1094:
"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 thevalue
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.
valueless
by W's alleged deceit. To adopt H's arguments would be inconsistent with McFarlane.
very
substantial. But, this is an assessment that I can make and deal with as appropriate within my powers under the Matrimonial Causes Act. It is not a reason for allowing a tort claim to survive.
view
that the claim in deceit cannot survive. By reference to Part 3.4(2)(a) and (b) CPR I find;
(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.
ventilated
with counsel whether it might not be more appropriate to stay the deceit proceedings and formally strike them out at the conclusion of the financial remedy proceedings. Both parties urged me not to take this course and I therefore say no more about it.
MR JUSTICE COHEN:
view
is that costs should be ordered on a standard basis. This is not a classic fraud case. This is a case where in fact I have not come to any conclusions about the underlying subject matter of the action, namely whether or not the wife has misled the husband in relation to the paternity of C.
very
high temperatures is to be avoided. Thirdly, the issues that have arisen in the deceit proceedings will in a different form appear in the financial remedy proceedings and whilst I have found that the husband has approached the problem, if I can put it this way, in completely the wrong way, I have not found that there is not a problem.
very
different from those cases where perhaps there is a major argument about the
valuation
of a particular asset where it is easy to hive off the relevant costs but that does not apply in this case.
VAT:
of her bill of £376,000 costs, I reduce the figure by 80 per cent, which produces a figure of £300,800. I then for the purposes of a payment on account order that the husband pays what I calculate as 55 per cent. That is a relatively modest percentage if, as the parties agree, the wife can expect to recover 70 to 75 per cent, which produces a figure of £165,400, to which I then add
VAT,
which brings a figure of just under £199,000. I am going to round it to £200,000. Therefore, I shall order that the husband pays £200,000 inclusive of
VAT
on account of costs, and I gain such comfort as I can from the fact that if I have in any sense overshot the mark, which I think is
very unlikely, then that is something that can be ironed out in due course. Whatever the outcome of the financial remedies' litigation, the wife will be in a position to make any refund of funds that may be necessary.