Case No: IHQ/07/0243
Neutral Citation Number: [2007] EWHC 1246 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Tuesday, 3rd April 2007
BEFORE:

SIR JOHN BLOFELD

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BETWEEN:

A	
Claimant	
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	B	Defendant	
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Wordwave International, a Merrill Communications Company
PO Box 1336, Kingston-Upon-Thames KT1 1QT
Tel No: 020 8974 7305 Fax No: 020 8974 7301 
Email Address: Tape@merrillcorp.com
(Official Shorthand Writers to the Court)
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MR JOHN SABIDO (instructed by Ellen Windsor) appeared on behalf of the Claimant

MR SIMON CALHAEM (instructed by Aitchison& Co) appeared on behalf of the Defendant

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Judgment

SIR JOHN BLOFELD: 
1.	The parties to this case have recently litigated in the Family Division of the High Court a child Y.  The case at first instance was heard by Mrs Justice Hogg in chambers, and the decision was appealed.  Judgment in the appeal was delivered in open court.

2.	After this present case had commenced Mrs Justice Hogg released the case papers from the Family Division to the parties to this case.  At the start of this case I made an order that the claimant should be referred to as A and the defendant as B, and the two children of B, both young, as X a girl and Y a boy.  I shall refer to these letters of the alphabet as I proceed.

3.	A, a male, is now aged 63.  He met B; a female now aged 45 while working in the city of London in the autumn of 1995.  They both worked for the same firm.  He was then 52 years old and she was 34 years old; both were unmarried.  A had no children, B had a daughter, X, born in 1988, she plays only a very small part in this case.  A and B became friends.  In April 1996 they started a sexual relationship which went on for some years.  Throughout this relationship B lived with her daughter X in a flat in London EC1.  A lived in a house in London NW1.  Both retained their homes, but spent much of their time together cohabiting, especially in the early days of the relationship. 

4.	B left the firm for which she was working in the summer of 1996, and did not obtain another job for some time.  A retired some years later.  In the autumn/winter of 1996 B became pregnant, and in due course her son, Y was born on August 8th, 1997.  Up until July/August 2002 A always believed that he was the biological father of Y.  From November 1996 until about August 2002.  A made various payments in connection with his relationship with B.  Some payments were made directly to B; some were made to third parties for the welfare and education of Y, or for recreational activities.  

5.	By the summer of 2002 the relationship was in a poor way.  In was on July 10th of that year that A first learnt that B was disputing his paternity of Y, and intending to have a DNA test made upon him.  The result of that test made it clear that A was not Y’s biological father.  During the weeks before this result came through A made a final payment of school fees for Y.  After that he made no further payments in respect of either B or Y.  He did however continue with an application in the family Court for a contact order with Y.  This was strongly contested by B.  That was the application that was heard by Mrs Justice Hogg.  In those proceedings evidence was given by a child psychiatrist, Dr Berelowitz.  Of his evidence Mrs Justice Hogg made the following comments at paragraphs 16, 17 and 18:

“A is very keen to resume his relationship with Y and clearly wants contact with him.  He adopts Dr Berelowitz’s report and evidence, that he should be the father figure in Y’s life, that there is no other father figure and he has been Y’s father for the first five and a half years of his life with Y looking upon him as his father.  

B, the mother, is adamantly opposed to contact resuming.  She feels strongly that A has no place in their life and no place in Y’s life, and continuing contact or the relationship with A would not be in Y’s best interests.  She seeks to say that there are other male figures in his life, although no other father figure, and that Y would not benefit from A being his father figure.  

Dr Berelowitz has been of assistance to this court, having been jointly instructed by both parties; however, he could not resolve the dilemma with which I am now faced.  He is very clear that it would be of benefit to Y to have a father figure in his life, there being no other man in that role, and A having played that role, and been accepted by Y in that role, they are good reasons for A to continue being that father figure.  He felt that A has much to offer Y, and he has the capacity and the potential to be a very positive male figure in Y’s life, and it is better to have a robust male figure, be it all not your natural parent, than none at all.  I accept Dr Berelowitz’s evidence in this respect, and I find that A has ample potential to play the robust male figure in Y’s life.”

	Nevertheless, because of B’s continuing opposition Mrs Justice Hogg refused to allow B contact with Y.

6.	Mrs Justice Hogg’s decision was appealed.  The appeal was dismissed by the Court of Appeal who upheld her decision and declined to interfere with the exercise of her discretion.  Both those courts suggested that B consider altering her implacable opposition to A having contact with Y.  But as far as I am aware there has not been any change in her position at any time.  A has told the court that he was devastated at the loss of contact with Y. B in her evidence agreed that this was indeed the position.  

7.	Some months after the decision of the Court of Appeal A brought the present proceedings against B.  The Particulars of Claim stated that in November 1996 B assured him that she had had no sexual relationship with anyone at the time of the conception, or any other man at the time of conception or at all.  It further stated that B continued after Y’s birth, on occasions too numerous to particularise, to state to A that A was the biological father of Y.  It also stated that acting on B’s representations A provided financial support and maintenance for B and for Y from November 1996 to August 2002. In due course further information about the dates, places and form of words of the alleged representations were given by B to A.  In all there were approximately 130 such occasions when directly or by inference B stated that A was the father of Y.

8.	B in her defence stated that at the time of her pregnancy it was assumed by the parties that the unborn child, Y, was the natural child of A.  The rest of the particulars were denied.  It was not pleaded that she had actually told B, directly or indirectly at any time that he was not, or may not have been the father of Y.

9.	In evidence given during the Children’s Act proceedings, B had said that she had sexual intercourse on one occasion during the relevant menstrual cycle with a man she had met at a party, who it must be presumed was the father of Y.  Mrs Justice Hogg at paragraph 7 of her judgment said about that matter:

“The following month, while on holiday with A she realised she was pregnant and from the very beginning allowed and endorsed his belief that he was the father of the baby.  Having not anticipated fatherhood A fell in love with “his” son as he believed, he loved him, wanted him, treasured him, and the relationship.” 

10.	I now turn to the evidence that was given to this court in this case.  I start with the claimant’s case.  The claimant gave evidence himself and so did his sister, who was a short witness.  By agreement the papers in the Children’s Act proceedings were before me.  These included parts of B’s cross-examination before the District Judge and before Mrs Justice Hogg; A and B’s statements; a statement by Dr Berelowitz, the child psychiatrist and the judgments of Mrs Justice Hogg and the Court of Appeal.

11.	I turn to deal with A’s evidence.  A made a lengthy statement which was evidence in this case.  He was then cross-examined for some one and a half hours.  In addition to the undisputed facts which I have already set out, which formed part of his evidence, he said that the parties agreed that Y’s surname should be a hyphenated combination of both the surnames of both A and B, and he was so registered at birth.  Shortly afterwards B applied for a passport for Y.  When the passport was issued by the passport office, A observed that Y’s surname was stated as being solely the surname of B without having his own hyphenated to it.  He queried this with B who told him that the passport office must have made a mistake, and it could be put right in the future.  The original forms were recovered from the passport office and exhibited in this case.  They were in B’s handwriting.  On looking at them it is clear that B had never informed the passport office that Y’s surname should be the hyphenated surname.  She had put only her own surname, so the mistake was not made by the passport office, but was the result of information that was disclosed to the passport office by B.

12.	A said that during B’s pregnancy he paid out a total of £1,538 to her for her living expenses.  He had not paid any money to her before November 1996 when she first told him that she was pregnant and that he was the father of the unborn child.  After Y was born A paid further sums to B.  Between August 1997 when he was born, and March 1998, he paid a further total of £3,400.  All the above payments are documented by the cheques he exhibited and are undisputed.  He also, in his statement, said that he paid for all Y’s nappies, wipes and for his formula milk.  He was a hands-on father, adept at changing nappies and doing all the other chores that are necessary when there is a baby around. He frequently fed him.  He would sing him to sleep on many occasions.  He was asked by B to include him in his company’s private healthcare plan operated by his employer, and not only included Y, but B and her daughter X.

13.	He said that when Y was born his hair was quite dark, as was A’s.  By early 1998 it had changed colour and was nearer to being ash blonde.  That caused him to ask B if Y was definitely his child, and he was told by B that he was.  He gave evidence that he had paid for a number of holidays for him and B.  They took Y with them on holiday, because it was convenient to do so.  The figures set out in the Particulars of Claim are agreed as an accurate account of the monies he spent on both B and Y, so it is unnecessary for the court to refer to each individual payment in this judgment.

14.	By July 1998 the relationship was not in as good order as it had been.  The cohabitation was reduced from seven nights a week to five nights and in 1999 was further reduced to three nights per week.  It was about that time that there were problems about sending Y to a nursery, he being too young to go to school.  Until about 1999 A had paid for Y to attend one specific nursery.  Now, at B’s request Y was transferred to a rather more expensive nursery.  He paid all the nursery fees for both nurseries, and they again are agreed.

15.	After losing her job in 1996, B had some temporary jobs from time to time.  In 2000 she went back to work in a permanent position in a well-known city firm, but although A thought this would improve their relations they continued to deteriorate.  In February 2001 he says B agreed to scale down her work commitments, and he agreed to make up the monetary loss she would suffer, and that would be made up to him by reducing from five to two the number of days that Y went to the nursery.  But that did not work out, and very shortly after that Y continued to go to the nursery for five days a week.  This is an instance of A’s meticulousness in keeping all documentation.

16.	In August 2001 B told A that she used Y as a lever in their relationship, as she knew that Y, not she, was the light of A’s life.  He added that Y loved him as much as he loved Y.  Towards the end of 2001 contact between the two parties was further reduced.  B from time to time asked A to marry her, but A told her, certainly on one occasion, that although she had good qualities, she also had bad ones which were too much for him.  

17.	By June 2002 the relationship had reached such a state that the parties were discussing the obtaining of a parental responsibility agreement.  On June 30th, 2002, B told A that she was changing her solicitors.  On July 9th, the new solicitors wrote, what has been described as the, “bombshell” letter, stating that “Our client has instructed us that she is disputing your client’s paternity, and that DNA testing will be required in order to ascertain whether or not he is Y’s father.”  This came wholly out of the blue as far as A was concerned.  Also in evidence A said that his account given in the pleadings of approximately 130 or so assurances of his paternity, or that B had never been unfaithful to him were accurate and truthful.

18.	When cross-examined A said, referring to the school fees for Y, that he had paid £2,400 for a winter term’s schooling at C School in August 2002, making the payment after he had received the “bombshell” letter, but before the result of the test that was made known to him.  He said that he did this because he had already earlier paid an original deposit of £2,400 to that school, which might otherwise have been forfeit, and also bore in mind that if he did not pay the £2,400 further Y might not be able to go to any school for that term, because no other arrangement had been made.  He agreed that when a woman has had sexual intercourse with more than one person in one menstrual period and becomes pregnant, one cannot be 100 per cent certain of the paternity of the child.

19.	He was taken through the C School documents.  There was an issue as to who had found C School.  It was suggested to him that it was he who had found C School and had been the prime mover; he said no, it was A.  All the papers relating to that, including handwritten notes from A to B had been kept by A, and it became clear that the initial suggestion came from B.  This was another example of his meticulous documentation.

20.	A denied in cross-examination that he brought this case to put pressure on B to allow him contact with Y.  He made the comment that four senior judges had already asked her to make amends, and she did nothing for some ten months -- that was his figure -- adding;

“I felt very strongly about being taken for a ride.”
	
B’s case was broadly an adequately put to A but he maintained his original account.
 
21.	His sister gave evidence.  She describes A and B at an early stage of their relationship as being a loving and demonstrative couple.  At some reasonably early stage in the relationship -- she gives no date -- she said that B told her that she was concerned about A being unfaithful to her, saying that she had been faithful to him.  She observed A’s demeanour after he had learnt that he was not the father of Y.  She described him as heartbroken.  She was not cross-examined.  

22.	The defendant gave evidence.  She gave a brief history of her life, including a description of her association with a man much older than her who had worked in the same office as her and who fathered her daughter X, and later disappeared from her life, apart from making some payments in respect of X.

23.	She described her review of A’s character saying that she regarded him as an intellectual, intelligent, art loving, and interested in various different aspects of life.  They had tiffs from the early days of their relationship.  She complained strongly about their sex life, which she stated was intermittent and inadequate.  She says that in November 1991 there was a discussion about her being late for her menstrual period with A making the comment to her, “Oh no, I can't believe it.  What am I going to do?”  In that conversation she said that she told A that she was no longer on the pill. She explained that that was so because they had sex so infrequently, but she said that the question of paternity of the unborn child did not arise in that conversation, as alleged by A.

24.	In January 1997 A and B had a holiday in Israel.  B, at the airport, had brought a pregnancy testing kit.  At the end of the holiday she tested herself and found that she was pregnant.  She told A.  He queried if the baby was his, and she said that she had not been seeing anyone else.  When asked in cross-examination about the truth of this her first response was to say that what she had said was not a lie, and that she had not been seeing anyone else.  But when pressed she agreed that she intended A to believe that he was the father of the child.

25.	She was asked in detail in cross-examination about her meeting with the father of the child.  In her statement she had said that she had met the man at a party, had far too much to drink, which went to her head, was flattered by the man’s attention, and gave in to “an overwhelming physical need being involved with a very frustrating relationship with A.”  

26.	She described in her statement their sexual relations as being sporadic and unfulfilling.  She said that during the month that Y was conceived A had had full sexual intercourse with her three times.  She said she had never told A about her sexual encounter, because she was ashamed, and pushed it to the back of her mind.

27.	In cross-examination she gave a considerably more closer and detailed account.  She said that on that evening she had been having a drink in the City of London with an old acquaintance, and then got chatting with some man who was with others at that same public house.  That man was the “father.”  They got on well.  He asked her to come with him to a party elsewhere in the city.  She thought the party was at the premises of the Honourable Artillery Company, which was not far away.  She went with him, danced with him, drank too much, and then took him back to her flat, which was quite close.  She said that apart from the man with whom she had gone to the public house whom she named, she knew nobody either at the public house or at the party.  X was staying with B’s mother on that evening.  She said that such behaviour was uncharacteristic for her, and she would never do such a thing again.  She repeated that she had had far too much to drink, and emphasised again that the sexual relationship with A was causing her great unhappiness.

28.	She explained that the sexual activity that B and she normally had together was not such as would enable her to conceive.  Consequently she had stopped taking any contraceptive pill.  She did not agree with counsel’s suggestion that she must have appreciated that the man in the public house; with whom she had sexual intercourse was likely to be the father of the child.  She said there was an outside chance.  She made it clear that the sex with A during that same menstrual cycle was indeed full sexual intercourse, which could lead to the conception of a child.  She said that at that time she was not planning to have a baby.  She did not know why she did not go back on the pill, or why she did not take a morning after pill.  She reiterated that after this one instance of sex with this man from the public house she did not really think about him, and that when in January 1997 in Israel she said what she said, it was because it was something she wanted to obliterate from her mind.  She also said that she did intend A to understand that her words meant that she had not had sex with anyone apart from him.  She was asked if she accepted that what she said was untrue, she paused, and then replied, “It was not the facts.”  The question was put again, and she said it was untrue.

29.	Turning to another matter, in her statement she said that after she had lost her job in the city A wished her to find another.  She described the relationship between A and her own mother as being thoroughly bad, with A saying he never wanted to see her -- the mother-in-law, as notionally she was -- again.

30.	She then dealt with their life together.  There was no dispute about the pattern of cohabitation as given in detail in A’s evidence.  She described how when living together she cooked for A, and made the home as homely as possible.  She said that as the relationship continued their sexual relationship deteriorated further.  She accepted that she had received the monetary payments listed in the Particulars of Claim.  She said she played her part in buying items for the home, and doing homework, and looking after X and Y. 

31.	She described that in 2002 it became clear to both parties that the relationship was floundering, and litigation under the Children’s Act 1989 was started.  A asked the court to make a parental responsibility and a contact order.  She was inclined at first to agree.  She was required to sign the relevant documents.  She went to the appropriate place to sign the documents, but there was error and consequent delay.  This error, she said, was providential.  It caused her to hesitate as she considered in the back of her mind that there was a nagging doubt about Y’s paternity, so she decided to have a DNA test done.  She did not wish contact between A and Y to continue, because she had concerns about A’s character, and because he was not Y’s biological father.  She also dealt with the issue relating to the C School, and maintained it was A’s idea, but I have already dealt with that.  So much for her evidence.

32.	During the course of the parties giving their evidence I observed the demeanour of the witnesses, the pauses, if any, in their evidence, and when and where they occurred, the nature of the answers given, and whether they were straight answers or not.  I assessed the consistency of their evidence. I looked for outside evidence, documentary, or something resulting from the earlier Children’s Act proceedings in order to test both their honesty and reliability.  I made allowance in respect of both parties, but particularly in relation to B for the strain of giving evidence about sexual matters, particularly in open court with strangers present.

33.	I have come to the conclusion that it is impossible for me to accept B as a witness of truth.  I cannot and do not accept her account of her meeting with the “father” of Y.  In her statement, and earlier in the Children’s Act proceedings she referred to the initial meeting with the “father” as being at a party.  In cross-examination in this court the first time she said that she met him in a public house.  She mentioned the name of her friend with whom she went to the public house in another place in her statement in connection with a wholly different matter, but she never mentioned his name in connection with this matter in her statement, nor of meeting the man in the public house until she gave evidence in cross-examination.

34.	She puts forward an account of that sexual encounter, which is wholly incapable of any corroboration and is inherently improbable, having regard to her evidence that it was uncharacteristic and she would never do anything like it again.  

35.	I also found her evidence about A’s sexual activity as a reason for her stopping taking the contraceptive pill unconvincing.  If A and B’s sexual activity could not result in conception then by all means stop taking the pill, but when she says in the same breath that there were three instances of full sexual intercourse in the same one crucial menstrual period it is illogical for her to stop taking the pill, or not to restart it.  I do not believe her on that aspect of her evidence.

36.	I find that the description of Y in July 2002 she asked for a DNA test, because she had a nagging doubt about paternity sits uneasily with her evidence that she had put it out of her mind.  I further find her evidence about what she said she told A in January 1997, and her hesitations and qualifications about what she told him, an additional ground for coming to the conclusion that I do not accept her evidence.  

37.	I should add that in earlier Children’s Act proceedings there was a remark from her then counsel, who told the court of the District Judge that B knew the identity of the father.  In all the circumstances I find that remark to be equivocal, and consequently place no reliance upon it.

38.	I turn to my view of the claimant’s evidence.  When I first started listening to A giving evidence I found him a difficult witness to assess.  He was meticulous to a high degree.  He never raised his voice.  He never got emotional, he was rather long-winded.  But as cross-examination continued I grew more and more impressed with him.  He dealt with much dignity with suggestions made to him by counsel.  His answers were always careful, well considered, courteous and convincing.  I found his account of the payment of the school fees for C, borne out by contemporaneous documentation, I found that he did not exaggerate his evidence, nor dispute his strong views, nor did he appear to be actuated by ill-feeling towards B.

39.	I found that there was documentary evidence which supported his evidence, but only to a slight extent.  It was, however, contemporaneous, and it did support some of his evidence.  I also accepted that his sister’s evidence assisted him in showing how upset he had been once he learnt that he was not the father of Y, but that was a minor point.

40.	I have given some but a limited weight to the judgment of Mrs Justice Hogg, and I have read the full statement of the child psychiatrist, Dr Berelowitz.  But I should add that any views expressed in those two documents were only confirmatory of a judgment that I had already made, rather than causing me to come to that judgment.  I found A’s evidence truthful and reliable, and I accept it.

41.	A submission was made in this case involving, as it does, proof of fraud, that it requires a high degree of probability.  The quotation, “The more serious the allegation, the higher degree of probability is required,” is one that I endorse.  I have made my findings of fact on such a high degree of probability as the allegation here is a serious one.

42.	I now turn to the law of deceit.  The ingredients of the tort of deceit are set out in a number of cases. (See Lord Selbourne in Smith v Chadwick [1884] 9 AC 187 at 190; Lord Hershall in Derry v Peake [1889] 14 AC 337 at 373; and rather more recently Viscount Maugham in Bradford Equitable Benefit Building Society v. Forders [1941] 2 AC 2005 at 2001.

43.	The five ingredients of deceit are set out in those cases and are as follows: (1) A representation by words or conduct, in this case, words.  (2) That representation must be untrue to the knowledge of the maker at the time the representation was made.  (3) The maker must make the representation by fraud either deliberately or recklessly in the sense that he or she could not care whether the representation was true or not.  (4) The representation must be made with the intention that it should be acted upon by the claimant.  (5) It must be proved that the claimant acted upon the fraudulent representation, and thereby suffered damage.

44.	Certain preliminary matters fall for consideration.  Mr Calhaem, counsel for B submits that in this case an action for deceit does not lie for various different reasons.  I deal with them individually.  First, he submits that B is too impecunious to pay damages if awarded to A’s knowledge, and that A is motivated by some other purpose other than financial gain to bring this action, and therefore that the action is itself improper.  No specific authority was cited for this proposition.  In my view impecuniosity is not relevant, nor is there any clear proof in this case that the claimant is wholly impecunious.  I accept A’s evidence as I have already said, on all subjects, and that includes that he is not motivated by a desire to regain contact either with Y, but feels strongly, as he says, about being taken for a ride.  I reject this submission.

45.	In his second submission Mr Calhaem submits that this is a novel claim, as the concept of “paternity fraud” is unknown to English law.  My attention has been drawn to the case of P v. B [2001] 1 FLR 1041, which on its facts is not dissimilar to this case, but I bear in mind that that judgment was given on a preliminary issue, not on the facts being fully argued before the judge.  There is a recent decision of the High Court of Australia, McGill v. McGill [2006] 231 ALR 277, and some decisions in the United States, which are cited in P v. B.  Consequently, I do not find that this is a novel claim unknown to English law.

46.	The next submission of Mr Calhaem was that the function of tort is corrective justice, and that there is insufficient imbalance between the parties in this case for this action to be brought.  He cites Honoré on the morality of tort law.  A similar submission was made before Stanley Burnton J in P v. B and is dealt with at paragraphs 24 and 26 of that judgment where he states:

“The real question is whether there should be liability in deceit in a domestic context, ie, as between a cohabiting couple.”

	he vontinues:

“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 reasoning is convincing to me, and I adopt and follow it.

47.	Next Mr Calhaem submits that there is a parallel to be drawn between family law relating to married couples and their children, and cohabitees and their children.  He refers to s.12 of the Married Women’s Property Act 1882, the Law Reform (Husband and Wife) Act 1912, and the Matrimonial Causes Act 1973.  Again, a very similar submission was made in P v. B, which was considered at paragraphs 28 and 29 of the judgment, which reads:

“I do not think that liability for deceit is an undesirable interference by the law in the domestic relations of a man and a woman. Actions for deceit between couples will in practice be commenced only when their relationship has broken down. An action in deceit will not cause the breakdown of the relationship: more likely, the breakdown in the relationship will be the consequence of the fraud.

Mr Smail” -- who represented the mother in this case -- “referred me to a number of statutory provisions which, he submitted, are inconsistent with, or point against, liability in tort in a case such as the present. In the case of a fraudulently induced bigamous marriage s 23 of the Matrimonial Causes Act 1973 confers power on the court to make financial provision in favour of the innocent party: see Whiston v Whiston[1995] Fam 198, [1995] 2 FLR 268. However, these provisions do not apply to parties who cohabit without marriage; and financial provisions are not designed to compensate for injury or distress suffered in the past as a result of fraudulent representations.”

48.	I have considered the so-called “floodgates” submission.  That is that if this action is allowed to proceed and it is successful, it would be likely to be followed by a flood of other similar cases.  If this is a cause of action for which justice requires a remedy, then it is right that a remedy  be granted, and I am unmoved by the thought that other similar of cases may come forward.  I do however note that P v. B was decided in 2001.  I have not been referred to any other English case between 2001 and the present date.  I have been referred to only one such case in Australia, and only a few in the United States of America.  So the anxiety of a flood of similar cases seems to be somewhat over-stated. 

49.	I return to consider the evidence of the elements of the law of deceit.  Having accepted A’s evidence, and rejected B’s I have no difficulty in finding that representations were made on a large number of occasions and were untrue, and that when they were made they were fraudulent.  B made them deliberately knowing them to be untrue, or wilfully as the authorities put it in the cases.  She herself said that she had put the chance encounter with the other man out of her mind, but I am satisfied that throughout the relationship when this was raised she had what she describes as a nagging doubt, although I do not consider that phrase adequately explains her state of mind.  I am quite satisfied that she intended that A should rely on these fraudulent representations as she herself said in evidence, and I am quite satisfied that as a result of those fraudulent representations he has suffered damage.

50.	Mr Calhaem then concentrated on the fifth ingredient of fraud, of deceit.  He submitted that while it is open to the court to find all five elements of deceit proved, if the court accepts the evidence of A, nevertheless, the court should look carefully at the evidence to decide whether any representation made by B to A about paternity was, or was not made fraudulently.  So in coming to my conclusion on that subject I have paid attention to his submissions.  He referred the court to Joliffe v. Baker [1882] QB 11 at 255 and 275 which I have fully taken into account.  He submits that there is insufficient evidence of fraud or moral turpitude, which is the phrase used in that case.  From what I have already said it follows that I disagree with him.

51.	While it is possible that a single untrue representation on a single occasion could be made out of panic for some reason falling short of fraud, having accepted in this case that the representation was repeated on a very large number of occasions, I do not find that it could be so in the present circumstances.

52.	Finally, on the question of the tort of deceit, Mr Calhaem submitted there was insufficient evidence to prove that A had suffered any damage as a result of acting upon these fraudulent representations.  It is submitted that in any event he would have paid out the sums he is now claiming by wayof special damages, and they were made for other reasons, effectively for the affection that he had for both B and Y.

53.	While it is may well be that human actions have a number of different motives, I am satisfied that in this case in relation to all the heads of damage, that in making the payments he did and in his claim for general damages, he was very substantially motivated throughout by these fraudulent representations.  It is highly significant that he made no payment of any sort to B before the first fraudulent representation in November 1996, and none after he received the results of the DNA test showing that he was not Y’s biological father.  

54.	I now turn to consider the question of general damages.  Mr Calhaem’s submission is that A is not entitled to general damages for distress, or as a fall back position, if so they should be very small.  He has drawn the attention of the court to the fact that general damages have been awarded in cases of commercial deceit, and he cited Saunders v. Edwards [1987] 1 WLR 1116 and Shelley v. Peacock [1997] 1 QB 120 as two such examples.  The last example he cited was a 1991 case.  Before further considering general damages I ought to make it clear that I do find all the ingredients of deceit made out in this case.  Mr Calhaem submits that I should not award any damages, either general or special.  He then submits that before doing so I would need to be satisfied in respect of each head of damage, that is general, in each separate category of special damage.  And I have to be satisfied that it is directly referable to the fraudulent representations made by B to A.  I agree.  I am satisfied that this has been made out in respect of the general damages and in respect of each of the categories of special damages where I make an award.

55.	I return to general damages.  The reported cases of commercial deceit indicate the award of relatively low sums for general damages.  £1,000 was awarded in 1991, which would, in financial terms, taking account of inflation, be probably nearer three times that at the present date.  In the Australian case of McGill v. McGill a similar type of case to this, the trial judge made an award of AU$30,000, which is approximately, £12,000 English pounds.  That was not the subject of any ruling by the Supreme Court of Australia, because they allowed the appeal.  In that case on fairly similar facts it is noticeable that the claimant there had mental and psychological problems requiring psychiatric treatment.  In this case although A was devastated by the disclosure, and has clearly felt a deep sense of loss and suffered great unhappiness, his mental state has not required medical attention, so it is not as severe a case as McGill.

56.	Mr Baker, Queen’s Counsel, for A, referred me to the Fatal Accidents Act 1976.  The current payment for bereavement is a figure of £10,000.  I am satisfied by reference to all these authorities, that I am entitled to award general damages in the present case, and it would not be contrary to public policy to do so.  Further, I am satisfied there is clear evidence from A and his sister of a substantial degree of distress to A directly caused by these fraudulent representations.  I am not awarding, or increasing the award, because A no longer has contact with Y.  That seems to me to be irrelevant, and is a matter that was decided by the Family Court, and consequently I put it out of my mind. 

57.	In my view, A’s distress, although very real, is not as great, or has not had such unhappy consequences as in the case of McGill, nor is it as severe as a bereavement.  A bereavement is final and irreversible.  In this case nobody knows what the future holds.  But I am satisfied that A’s distress is genuine and continued.  I have come to the conclusion that under this heading I should award him £7,500.

58.	I turn to special damages.  There is no claim in this case for special damages for expenditure by B on A, by A on B, for her sole benefit i.e. to pay off earlier debts that she had incurred, or the gift of jewellery, or something of that sort.  There are however, claims for special damages for holidays in the sum of £22,850, and restaurant meals in the sum of £6,950.

59.	I bear in mind that Y was either frequently or invariably taken on holiday with A and B, but he was far too young to enjoy those holidays.  He was taken on holiday because it was convenient to A and B.  I do not find that any of these holidays were a benefit to him, they were solely for the benefit of A and B.  I make an identical finding in respect of the restaurant meals.  

60.	Mr Baker, in his skeleton argument, reduced the claim for these two categories by 50 per cent to take account of the enjoyment A had in them.  I find the reduction he has made to be sensible and appropriate.  I regard these two categories as different from the remaining categories of special damages claimed in this case for two reasons.  First, they were to some extent luxury items, in the sense that they were not necessary for the furtherance of the relationship with B, although it is common for two people who are having a relationship to enjoy joint holidays and restaurant meals.  Secondly, as I have already stated, there was no benefit to Y.  Consequently I award 50 per cent, which on the £6,950 figure comes to £14,900.

61.	I deal next with the categories of special damage, which I find was for the sole benefit of Y, namely: (a) nursery school fees, £37,471; (b) School fees, $4,800; (c) Nappies, formula, milk £2,000; (d) Nursery furniture £4,095; (e) Pushchairs £234.  I start by referring to two cases, McFarlane v. Tayside Health Board [2000] 2 AC 59.  In that case the facts were that the husband had had a vasectomy, but nevertheless thereafter the wife became pregnant by him and gave birth to a healthy child.  There were a number of heads of damage.  The one that is relevant in this case is that the parents claimed damages for the financial costs of bringing up and caring for the child.  The House of Lords decided that in respect of this part of the claim that the parents should not be awarded damages.  I refer to comments made by Lord Millett at page 113/114:

“I am persuaded that the costs of bringing Catherine up are not recoverable. I accept the thrust of both the main arguments in favour of dismissing such a claim. In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages. In other contexts the law adopts the same principle. It insists that he who takes the benefit must take the burden. In the mundane transactions of commercial life, the common law does not allow a man to keep goods delivered to him and refuse to pay for them on the ground that he did not order them. It would be far more subversive of the mores of society for parents to enjoy the advantages of parenthood while transferring to others the responsibilities which it entails.”

	In P v. B Stanley Burnton J set out at paragraph 40, in his judgment the reluctance of the courts to regard a human relationship as lost, and a reluctance to place a financial value on such a relationship.  I find the same applies to this case.

62.	Sexual relationships between adult people are an integral part of human life.  Where the relationship is between a man and a woman it may take many forms, marriage, permanent cohabitation without marriage, irregular but frequent cohabitation, as in this case, the list is endless.  If there are children in such a relationships, whether or not they are the children of the man or not, and whether he knows if he is their biological father or not, they have to be looked after and expenditure incurred upon them.  In my view despite the submissions made by Mr Baker, I find the observations of Lord Millett and Stanley Burnton J helpful and pertinent.  I find it difficult to envisage circumstances in which damages in looking after and caring for children could be successful, but it is only necessary for me to find on the facts of this case that these claims should not be allowed, and this I do.

63.	In my view, not only should public policy be taken into account, but also in this case A at the time had great enjoyment from his relationship with Y until the bombshell letter arose.  Further, I find it difficult to be persuaded that such sums solely for the benefit of Y should be awarded against Y’s mother.  I should add that I have taken into account Mr Baker’s submissions that for two reasons I should not follow the House of Lords in McFarlane, firstly that this is a fraud case, and secondly that that case was dealing with the child of a married couple, and this is dealing with a child of cohabitees.  To make matters clear, I have taken those matters into account.  Consequently I make no award for the heads of special damage which I have read out relating to Y.

64.	I now turn finally to the last two remaining categories of special damage, payment to B of cheques for £8,968 plus other maintenance of £2,750.  As I have said, these sums were paid by A to B from the date when he first learnt of the pregnancy up to a date in 1998.  There is no evidence that any of this money was spent on B on anything other than normal living expenses.  During the whole period that these payments were made there were varying degrees of cohabitation.  At all times Y was looked after by B, helped by A when he was around.  For some of the period B was unemployed, and for some she was in work.  She contributed to the living expenses for the three of them as far as she was able to.  But her means were not as great as A’s.  There is no suggestion that she did not look after the physical needs of Y properly, or indeed that she did not look after the normal living in relation to A by providing somewhere to sleep and somewhere to, heating etc.

65.	In my view, it is quite impossible to split these sums of money and allocate them in any percentages to any of these three people.  There is no evidence to enable me to do so.  They went on family living.  That being the case I have come to the conclusion that Y benefited from these parents directly or indirectly, as did both A and B, and for that matter so did the daughter X.  I do not find in these circumstances that I am able to make any award of damages in respsect of these categories.  They are too closely intertwined with looking after Y.  I find that the observations which I have already made on items of special damage relating solely to Y apply to these categories also.  Consequently, I refuse to make any award under those heads of special damage.

66.	It follows that I give judgment for the claimant in the sum of £7,500 general damages, and subject to correction, £14,900 special damages, making a total of £22,400.
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