Can the tort of deceit exist between married couples? Case Summary: FRB v DCA [2019] EWHC 2816 (Fam)

Cohen J recently gave judgment in FRB v DCA [2019] EWHC 2816 (Fam), a deeply unusual case concerning W’s application to strike out H’s claim for the tort of deceit relating to her so-called ‘paternity fraud’, which H had launched alongside financial remedy proceedings. The case – the latest in a long-running dispute between the parties - deals with an interesting point of law: whether the tort of deceit can exist between married couples.

H and W were married in 2003, and a child, C, was born some years later. The parties separated in 2017, and W petitioned for divorce, with H then beginning financial remedy proceedings. The dispute over matrimonial finances is ongoing, and is currently listed for a final hearing with a time estimate of 15-20 days before Cohen J.

H requested a DNA test to establish C’s paternity, and in December 2018, the results showed that H was not C’s biological father. Almost immediately, H indicated his intention to pursue a conduct argument in the matrimonial finance proceedings under s25(2)(g) MCA 1973. He also launched an action for the tort of deceit in the Queen’s Bench Division, relying on the numerous representations that he claimed that W made to him during their marriage that he was C’s father despite her knowing or suspecting, he alleged, the truth of C’s paternity.

The proceedings were transferred from the Queen’s Bench Division to the Family Division by Master Cook in April 2019, who prior to hearing any submissions from the parties, expressed concern as to what the action could achieve, particularly given that financial remedy proceedings were already underway in the Family Division, and going so far as to state that this was ‘arguably pointless and futile litigation.’ Master Cook ordered W to serve either a defence to the claim or an application to strike it out.

W’s application to strike out H’s claim came before Cohen J. H’s initial claim stated that as a result of W’s deceit and misrepresentations as to C’s paternity, H had suffered loss and damage relating to the sums he had paid in respect of C’s education and upbringing, the difference between financial provision that H would make to W in the divorce proceedings at the present date compared with the financial provision that would have been payable had divorce proceedings commenced at the time of C’s birth, and the sums paid and gifts given by H to W from the time of her pregnancy to the commencement of the divorce proceedings. By the time the matter had come before Cohen J, H had reflected on the matter and decided that he wished to continue to be C’s psychological father, and had accordingly amended his claim to remove the sums he had spent on C.

The issues for Cohen J to consider were first, whether the tort of deceit in respect of intimate matters such as paternity fraud exists between husband and wife, and second, if such a tort does exist, can it run as a separate cause of action in parallel with financial remedy proceedings, or would it be abuse of the court’s process and/or otherwise likely to obstruct the just disposal of the proceedings? Cohen J accepted that if the answer to either question was no, W’s application should succeed and H’s claim should be struck out.

In considering the matter, Cohen J noted that prior to the Law Reform (Husband and Wife) Act 1962, actions in tort between husband and wife were not permitted. Neither H’s or W’s legal representatives had been able to find a reported case for a ‘paternity fraud’ case between husband and wife in the High Court: Cohen J noted that actions for the tort of deceit are unusual, and paternity fraud cases even more so.

Although no reported cases could be found relating to paternity fraud between married couples in the High Court, there is clear authority that paternity fraud applies to unmarried couples, for example P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041 and A v B (Damages: Paternity) [2007] 2 FLR 1051. Cohen J also noted that counsel had found three cases where the tort of deceit in relation to paternity fraud had been applied to married couples, but never at above county court level. He went on to consider the decision of the High Court of Australia in Magill v Magill [2006] HCA 51, in which the court broadly held that it would only be in very rare circumstances that the tort of deceit would apply as between husband and wife, as well as a number of journal articles on the matter.

Ultimately, Cohen J concluded that the tort of deceit can exist between married couples. At paragraph 26 of his judgment, he commented ‘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.’ There were further reasons for finding that a tort of deceit can exist between married couples, in addition to the public policy argument which Cohen J appeared to find most persuasive: for example, there is nothing in the Law Reform (Husband and Wife) Act 1962 which restricts which torts are actionable, and Cohen J was of the view that the court should be slow to impose a blanket restriction not found in the Act. The judge also imagined circumstances in which the ‘wrong’ of paternity fraud could not be simply taken into account in matrimonial finance proceedings as submitted by W, 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’ (paragraph 26.) Finally, Cohen J was critical of the decision in Magill, noting (again at paragraph 26) that ‘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.’

Ultimately however, in answer to the second of the two issues before the court – whether the tort proceedings can run as a separate cause of action in parallel with financial remedy proceedings, or would constitute an abuse of the court’s process – Cohen J determined that H’s claim should be struck out. He was emphatic at paragraph 47 of his judgment that ‘the continuance of these proceedings would cause considerable difficulty within the financial remedy proceedings and in my judgement adds nothing legitimate to them.’ He noted that Parliament has provided a statutory remedy for financial provision upon the breakdown of marriage, through the Matrimonial Causes Act 1973. Section 25(2)(g) of that Act requires the court to have regard to ‘the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’. There is therefore already a scheme in place under which ‘bad behaviour’ by a party will fall to be considered, if and only if it crosses the line (‘inequitable to disregard it’) that has been set out by Parliament.

H’s counsel was asked by the judge how H’s claim in tort could fit alongside the financial remedy proceedings. It was submitted on behalf of H that the appropriate exercise would involve assessing what W would have got by way of lump sum if the marriage was dissolved at the time of C’s birth and assessing the value of her claim today, taking the difference between the two as the level of damages. Any sums spent by H on living expenses and gifts to W should be awarded as additional damages. After this, the s25 MCA exercise should be conducted, with W to have no sharing claim from the date of C’s birth. Should her award not meet her needs, it would be at the discretion of the judge to increase her award.

For Cohen J, this proposal simply illustrated the problems with H’s approach. It required the judge to carry out a hypothetical calculation, for which there was no authority. It also required evidence as to asset values both now and at the time of C’s birth, and there had been no directions to bring this evidence. Further still, this approach disregarded the length of the marriage, which is a factor to be taken into account that is explicitly referenced in the Matrimonial Causes Act. Further still, it did not take into account C’s existence – a child who was much loved by both H and W.

Bringing this together, the court retained the power under the Matrimonial Causes Act to consider conduct, and this was the most appropriate way to deal with H’s allegations of deceit. Cohen J expressed his displeasure at the huge legal costs that each party had generated through extensive litigation, both of this matter and other ancillary issues. He commented that between them, they were unlikely to have spent less than £3m, and on this strike out application alone, H’s costs were £230,000.

Kate Strange, Barrister, 1 Hare Court