AXB v BXA

C and D engaged in an extramarital affair between 2014 and 2016. During the relationship, D claimed on two occasions that she was pregnant with C’s child, and told him that she terminated the pregnancies. In fact she was not pregnant on either occasion. D did become pregnant in 2016, at which time C found out about the falsity of the earlier pregnancies. Shortly after D ended the relationship.

C had given D large sums of money following her various representations and demands. In particular, D had claimed (a) that she needed $30,000 in relation to medical checks for the first false pregnancy; (b) that she was homeless after breaking up with her boyfriend and needed $100,000; and (c) that she needed to pay for a course at Christie’s and required $35,000, and later £42,000, for this purpose. C supplied her with these monies. C had also spent £4,141 travelling to New York to accompany D to a hospital appointment in relation to the second false pregnancy claim.

During the relationship, but predominantly after it had ended, C claimed D had harassed him and disclosed his private correspondence and information to third parties without justification. These disclosures and conduct were mainly made in relation to the 2016 pregnancy.

(1) Was D liable, under the tort of deceit, for the sums of money provided by C?

(2) Did D’s conduct amount to harassment?

(3) Did D’s disclosures to third parties amount to misuse of private information?

(4) Was C entitled to damages?

(5) Was C entitled to an injunction?

(1) C’s claim under the tort of deceit succeeded in part. C was entitled to recover the $30,000 paid out due to first false representation of pregnancy (as was admitted by D) as well as the $100,000 paid due to her suggesting that C had caused her to become homeless, while she continued to live with her boyfriend. C was also entitled to recover the expense of travelling to New York for the hospital appointment on the basis of D’s false representations that she was pregnant on the second occasion. C was not entitled to recover the payments towards the Christie’s course. There was no evidence that the money did not go towards the course. As a matter of causation, false representations made about D’s other relationship cannot be tied in to this.

(2) D’s actions did amount to harassment. The critical question, whether D’s behaviour went beyond what would be reasonable and can be characterised as harassment, was a difficult one in the context of her 2016 pregnancy. If a woman becomes pregnant, as D did (in 2016 but not before), and believes C to be the father (which was less clear on the evidence) it is not necessarily unreasonable to pursue him in search of decisions and funding of those decisions. The Judge was not persuaded that such demands on C’s time were made on a knowingly false basis. However, there was a course of conduct distinguishable from this legitimate pursuit. The involvement of third parties and threats, particularly of wider publication and a false claim of assault, amount to this and form a pattern of harassing behaviour that falls outside what is ‘reasonable’.

(3) C’s claim in misuse of private information succeeded. There is no doubt that sexual activity, including adultery, gives rise to a reasonable expectation of privacy. In applying the ‘ultimate balancing exercise’ the Judge considered whether the information disclosed was in the public domain or if there was a public interest in revealing the information, but had no evidence to suggest either.

(4) C was entitled to general damages. The Judge awarded £5,000 in respect of infringements of privacy ([22], [26], [33], [41] and [57]–[61] of the Judgment) but nothing separately under harassment.

(5) C was entitled to an injunction founded upon harassment and privacy.  The Judge concluded that D represented a continuing risk to him, and to his wife and family, of further harassment, intrusion and infringements of privacy. There was no reason to suggest the behaviour was out of character but was in fact part of a consistent pattern. The Judge believed that D’s behaviour meant she was likely to do what she could in the future to cause embarrassment and distress.

The Judge described the case as an “unhappy and intensely personal saga”.

One of the difficulties the Judge faced was that D did not attend herself, or instruct counsel for the trial. This meant that witnesses were not tested under cross-examination ([42]). D also failed to serve witness statements by the appointed day, but sent various documents by email to the court during and after the hearing. The Judge noted the difficulty in making assessments without hearing her evidence at [33].

While there was case law to suggest, in some circumstances, that the tort of deceit had no place in intimate personal relationships, this was largely based on the desirability of protecting the institution of marriage (e.g. Magill v Magill [2006] HCA 51). In the instant case the Judge saw no policy reason as to why C should not sue for deceit, as set out at [18] (applying the reasoning of Stanley Burton J (as he was then) in P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041 at [26]–[29]).