Barker v Winter

Damages for deceit are assessed by identifying the loss directly flowing from reliance on the deceit and placing the claimant in the position she would have occupied without it. Credit is given for tangible benefits or gains, but transitory pleasure from a lifestyle funded by the claimant’s own money is not ordinarily a tangible benefit. The claimant’s loss is not reduced by the defendant’s own expenditure on the same lifestyle where that expenditure was not repayment of the claimant’s money. Interest may be awarded by reference to the rate at which an individual could borrow funds on an unsecured basis. Exemplary damages require one of the recognised categories of case, and aggravated damages remain discretionary, taking account of both the claimant’s distress and the defendant’s culpability.

The claimant brought a claim in deceit arising from representations that the defendant was wealthy, that his assets were temporarily unavailable because of an impending divorce, and that he would repay money she provided to fund their joint lifestyle. Summary judgment on liability had been entered, with damages to be assessed.

The assessment concerned the sums transferred or spent by the claimant, the treatment of benefits received during the relationship, contributions made by the defendant, vehicles, credit-card liabilities, jewellery, rent and other outgoings, retained furniture, interest, and claims for exemplary and aggravated damages.

1. Measure of loss. The claimant was entitled to recover loss directly flowing from reliance on the deceit, subject to credit for tangible benefits or gains. The enjoyment of expensive travel, hotels, restaurants, cars and similar lifestyle benefits was transitory and did not constitute a tangible benefit requiring credit.
2. The liability judgment established that the claimant would not have provided her capital to fund the lifestyle. She would not have spent her capital on her share of the expenditure in any event. A deduction of £20,000 was made for ordinary living expenditure which she would probably have incurred without the deceit.
3. The defendant’s expenditure on the joint lifestyle did not repay the claimant. It funded the lifestyle itself and was not a transfer of money which remained available to the claimant. The claimant could therefore recover the capital and assets expended because of the deceit, without an equitable accounting of the parties’ overall contributions.
4. The claimant recovered £35,000 for the value attributed to her original Range Rover, the remaining proved credit-card liabilities, and the amounts received from pawnbrokers for jewellery pawned and not redeemed. Claims for her father’s expenditure on redeeming jewellery, unreimbursed joint liabilities, and an unsupported furniture deduction failed.
5. Interest was awarded at 5 per cent above Barclays Base Rate from the dates on which the claimant parted with the relevant funds, applying the approach in Dresdner Kleinwort Limited v Commerzbank Bank AG [2013] EWCA Civ 394.
6. Exemplary damages were refused because the defendant was not a government servant and the deceit was not shown to have been calculated to yield a benefit exceeding the compensatory damages. Although the claimant suffered significant distress, aggravated damages were also refused, having regard to the defendant’s limited culpability and the claimant’s own contribution to the circumstances.