A v B

The tort of deceit may arise between cohabitees where one party deliberately or recklessly makes a false representation about paternity intending the other to rely on it. The ordinary five ingredients of deceit must be proved, including reliance and damage. A serious allegation of fraud requires a high degree of probability, but impecuniosity, domestic context and the absence of a recognised label such as “paternity fraud” do not bar the claim. General damages may be awarded for distress directly caused by the deceit. Expenditure solely incurred for the care of a healthy child is ordinarily irrecoverable where the benefits and burdens of the relationship are inseparable, although other expenditure may be recoverable if directly caused by the fraudulent representations.

The claimant and defendant had cohabited and the claimant had believed that he was the biological father of the defendant’s son. After the relationship ended, DNA testing established that he was not the biological father. Earlier family proceedings concerning contact with the child had resulted in contact being refused.

The claimant brought an action in deceit, alleging that the defendant had repeatedly represented that he was the child’s father and that he had consequently incurred expenditure and suffered distress. The central issues were whether the representations were fraudulent, whether the claimant had relied on them to his damage, and which heads of loss were recoverable.

1. Liability. Judgment was entered for the claimant. The court applied the five ingredients of deceit: an untrue representation; knowledge of its falsity; fraud, whether deliberate or reckless; an intention that it be acted upon; and reliance causing damage.

2. The allegation of fraud was serious, so the court applied a high degree of probability. The claimant’s evidence was accepted and the defendant’s evidence rejected. The repeated representations were deliberately false, intended to induce reliance, and substantially caused the claimant’s payments and distress.

3. An action in deceit can arise in a domestic relationship between cohabitees. The court adopted and followed the reasoning in P v B, rejecting the submissions that impecuniosity, the domestic setting, corrective-justice theory, or the novelty of the expression “paternity fraud” prevented the claim. The floodgates argument was also rejected.

4. General damages for distress were recoverable where the distress was directly caused by the fraudulent representations. The loss of contact with the child was excluded from the assessment because it was a matter determined in the family proceedings and was not itself the basis of the award. General damages were assessed at £7,500.

5. The court declined to award damages for nursery fees, school fees, child-related equipment, nappies and similar expenditure incurred solely for the child’s benefit. Applying the reasoning in McFarlane v Tayside Health Board and P v B, the benefits and burdens of caring for a child could not be separated in the circumstances. Claims for payments forming part of intertwined family living expenses were also refused.

6. Half of the claimed expenditure on holidays and restaurant meals was recoverable, assessed at £14,900, because those items were substantially motivated by the representations, but were in part luxury expenditure and had not benefited the child. The total judgment was £22,400, comprising £7,500 general damages and £14,900 special damages.