FRB v DCA

A tort claim arising from alleged paternity fraud may exist between spouses, including in relation to intimate matters. However, where the parties are already engaged in financial remedy proceedings, the allocation of their resources falls within the comprehensive statutory scheme in the Matrimonial Causes Act 1973. A separate deceit claim seeking to reallocate resources or obtain damages for matters capable of being addressed under that scheme is impermissible and may constitute an abuse of process. The court may consider conduct under section 25(2)(g), but only where it crosses the statutory threshold. Difficulties in assessing damages are not alone decisive, but the proposed tort remedy cannot be used to circumvent the statutory criteria or produce overlapping and hypothetical financial calculations.

The husband brought a Queen’s Bench Division claim against his wife alleging that she had fraudulently represented that he was the biological father of their child. The proceedings were transferred to the Family Division while financial remedy proceedings under the Matrimonial Causes Act 1973 were pending. The wife applied to strike out the claim, arguing that the tort of deceit did not exist between spouses in relation to paternity and that the claim was incompatible with, and an abuse of, the financial remedy proceedings. The central issues were whether such a tort could exist and, if so, whether the separate proceedings could continue.

1. Strike-out. The claim was struck out under CPR r 3.4(2)(a) and (b). It disclosed no reasonable grounds for bringing the claim and was an abuse of the court’s process, or otherwise likely to obstruct the just disposal of the financial remedy proceedings.
2. Existence of the tort. The judge expressed the view that deceit could exist between husband and wife in respect of intimate matters. The P v B (Paternity: Damages for Deceit) decision was confined to cohabiting couples and did not establish that its reasoning applied equally to spouses. The judge considered that the Law Reform (Husband and Wife) Act 1962 imposed no blanket restriction on tortious liability.
3. Exclusive statutory scheme. Parliament had provided a statutory remedy for financial provision on marital breakdown. The allocation of the parties’ resources was to be addressed under section 25 of the Matrimonial Causes Act 1973, including section 25(2)(g), which required conduct to be considered only if it would be inequitable to disregard it. The statutory scheme displaced the proposed common-law route in the circumstances.
4. Incompatibility of the proposed remedy. The husband’s approach required hypothetical calculations of what the wife might have received at the child’s birth, historic household expenditure, gifts and financial remedy entitlements. The court had no adequate evidential or legal basis for that exercise. The benefits of the relationship and of having a much-loved child could not be reduced to expenditure, and the proposed approach was inconsistent with McFarlane and Rees and the policy explained in B v IVF Hammersmith Ltd.
5. Conduct and other payments. The wife’s conduct could be investigated within the financial remedy proceedings. The court could also address gifts or other relevant matters under its statutory powers. Those possibilities did not justify maintaining a separate tort claim.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.