Are you liable if you deceive your partner into spending their money?
By:1 commentJuly 18, 2018
As I have said here many times before, you come across all sorts of things in family law. Certainly, as a family lawyer, you should never consider that you have come across everything, as you will soon be proved wrong!
Take, for example, the case Barker v Winter, in which judgment was recently handed down by His Honour Judge Rawlings in the High Court. The facts of this case may not be unique (and they certainly serve as a warning to any others in Ms Barker’s position), but I don’t recall coming across anything similar previously.
The case concerned a woman, the said Ms Barker, who had got divorced in 2010 and had received a divorce settlement of £550,000. She had intended to use a substantial part of that settlement to rehouse herself. Indeed, she did make an offer on a property, but the purchase did not go through.
In 2011 Ms Barker met Mr Winter. Judge Rawlings takes up the story:
“Ms Barker says that Mr Winter represented to her that he was very wealthy, separated from his wife and in the process of obtaining a divorce. Ms Barker says that Mr Winter told her that he could not freely access his money until his divorce had gone through and that Mr Winter offered to gift sufficient money to Ms Barker from monies that would be released to him, following his divorce, to enable her to acquire a similar property to the [property upon which she had made an offer] outright, without the need for a mortgage.”
In the light of these representations, said Ms Barker, she agreed to lend Mr Winter money for him to pay all their living expenses (he moved in with her), on the basis that when his divorce settlement came through he would repay her, as well as pay her sufficient to buy a property.
Judge Rawlings again:
“Ms Barker says that she has lent in excess of £400,000 to Mr Winter. Between late 2011/early 2012 and at least February 2015 Mr Winter and Ms Barker enjoyed together, a lavish lifestyle including the purchase of expensive gifts for each other (in particular jewellery and watches), the purchase of expensive cars and clothes, foreign travel, staying at expensive hotels and frequenting expensive restaurants (I will refer to the lifestyle enjoyed by Mr Winter and Ms Barker between late 2011/early 2012 and February 2015 as “the Lavish Lifestyle”).”
Sadly, according to Ms Barker, she had been deceived by Mr Winter. Judge Rawlings explained:
“Ms Barker says that all of the representations made by Mr Winter were substantially false, in that Mr Winter owned substantially fewer assets than he represented to her that he held, he could not afford to reimburse her for the monies that she advanced to Mr Winter to fund the Lavish Lifestyle, he had not started divorce proceedings against his wife and his assets, such as they were, were not frozen.”
Accordingly, Ms Barker issued proceedings against Mr Winter, seeking damages for the losses that she had suffered as a result of Mr Winter’s deceit, including a sum of some £303,000 that she transferred to him, or used directly to fund the ‘Lavish Lifestyle’.
Ms Barker succeeded in her claim. Unfortunately, the judgment that has been published deals only with the hearing to assess how much she should receive from Mr Winter in damages. It does not deal with the basic issue of whether or not Mr Winter was liable – that issue was decided in an earlier summary judgment. (A summary judgment is a judgment made without a trial. It can be made against a defendant (i.e. here, Mr Winter) if the court considers that he has no real prospect of successfully defending the claim.)
Judge Rawlings does, however, say some interesting things regarding the events that took place. For example, he was satisfied that
“but for Mr Winter’s deceit Ms Barker would not have paid any of her capital to fund “her share” of expenditure on the Lavish Lifestyle knowing that this would leave her (as in the event happened, because of Mr Winter’s deceit) with no capital and no property.”
As to Mr Winter’s behaviour, he had this to say:
“Mr Winter’s conduct appears to have been driven principally by his addiction to spending money, for which he has received treatment, rather than any intention to inflict distress upon Ms Barker. This does not excuse Mr Winter’s blatant deceit but it is a matter that mitigates, to a limited extent, his culpability for that deceit.”
Also, unfortunately, the judgment does not state exactly how much Mr Winter was required to pay (unless I have missed something), but it does I think contain sufficient information for at least a rough calculation to be made. I have not made that calculation myself, but if you wish to do so you can read the judgment here.
Of course, there is now the small matter for Ms Barker of actually recovering the money…