England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2018

His Honour Judge Rawlings

BACKGROUND

1. In December 2010, a decree absolute of divorce was pronounced in relation to Ms Barker's marriage. Ms Barker's financial settlement in that divorce was the sum of £550,000.
2. Ms Barker says that she intended to use a substantial part of her divorce settlement to acquire a property. She says that she made an offer on a property at 30 Trenwince Road, West Wimbledon ("the Property") of £532,500 which was accepted. Ms Barker says that she intended to purchase the Property by using £332,500 of her divorce settlement and by obtaining a mortgage for the balance of £200,000. In the event the purchase of the Property did not go through.
3. In 2011, after Ms Barker aborted the purchase of the Property, Ms Barker met Mr Winter. 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 outright, without the need for a mortgage.
4. Ms Barker says, that in light of the representations made to her by Mr Winter, she postponed her search for a property and, in March 2012, Mr Winter moved into the property that Ms Barker was then renting. Ms Barker says that at around that time she agreed with Mr Winter that:

(a) Mr Winter would discharge all of their joint living costs;

(b) prior to his divorce going through, Ms Barker would lend money to Mr Winter to enable him to discharge their joint living expenses;

(c) upon completion of Mr Winter's divorce, Mr Winter would refund all the monies lent to him by Ms Barker to fund their joint living expenses and pay her sufficient money to enable her to buy a property, similar to the Property, mortgage free.

5. 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").
6. Ms Barker brings a claim inter alia in deceit against Mr Winter. The basis of the deceit, says Ms Barker is that Mr Winter represented to her that:

(a) he held shares in a company which paid him annual dividends of around £2 million;

(b) he owned various houses in Surrey producing a rental income, a substantial wine collection, a gold bullion account, offshore bonds, a share of a boat in Monaco and the matrimonial home that he owned jointly with his wife was worth £3 million;

(c) he was a beneficiary of two family trusts;

(d) he had sold a business for £5 million;

(e) he could afford to solely fund, without any contribution from Ms Barker, the Lavish Lifestyle;

(f) his assets were substantially frozen until his divorce went through and he was in the process of divorcing his wife; and

(g) if Ms Barker provided him with her capital, to fund the Lavish Lifestyle, whilst his assets were frozen, he would be able to and would, once his assets were unfrozen: (i) repay the monies advanced to him by Ms Barker; and (ii) gift sufficient funds to Ms Barker to enable her to buy a property of equivalent value to the Property, mortgage free.

7. In September 2014, at a time when Ms Barker says that she had advanced over £400,000 to Mr Winter, Mr Winter told Ms Barker that:

(a) his father was selling the company from which he received dividends and his father would purchase his shares in the company for £2.2 million; and

(b) pending receipt of the money from his father to purchase his shares, Mr Winter would borrow £18,000 and that he would access substantial funds from the sale of bonds that he held in Florida by 18 February 2015.

8. In late 2014, Mr Winter instructed Mischon De Reya solicitors to draft a loan agreement in relation to the monies which Ms Barker advanced to Mr Winter acknowledging that those monies were loaned and would be repaid by Mr Winter. Ms Barker says that Mr Winter represented to Ms Barker that he would use the proceeds of the sale of bonds that he held in Florida to repay to her the money that she had advanced to him to fund the Lavish Lifestyle and would buy adjoining properties in West Wittering, one for Ms Barker and Mr Winter, and one for Ms Barker's parents.
9. 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.
10. Ms Barker claims, in her Particulars of Claim, at paragraph 52 that as a result of Mr Winter's deceit, she has suffered the following losses (items (a) – (e) being used to fund the Lavish Lifestyle):

(a) £303,492.10 transferred, from her Halifax Savings Account, to Mr Winter or used directly to fund the Lavish Lifestyle (52.1);

(b) Ms Barker pawned some of her jewellery to raise capital, which was redeemed by Ms Barker's father at a cost of £2,795.40 (52.2);

(c) £19,947 borrowed by Ms Barker on various credit cards (52.3);

(d) Ms Barker discharged directly £9,624.32 in joint living expenses and £978.30 of Mr Winter's sole liability relating to the property at Sundown, Seaward Drive ("Seaward Drive") rented by Ms Barker and Mr Winter (52.4);

(e) the value of Ms Barker's Range Rover, sold for £40,000 (52.5);

(f) the value of Ms Barker's jewellery which was either pawned and not redeemed or sold £132,850 (52.6);

(g) the sum of £683,750 being the sum required to purchase a property equivalent to the Property after deducting the deposit of £332,500 which Ms Barker was to have provided. In the alternative Ms Barker claimed interest upon the funds expended by her from her Halifax Savings Account (52.7);

(h) damages for the effect on Ms Barker's credit rating of the liabilities which she incurred, as a result of Mr Winters deceit, which she has been unable to discharge (52.8); and

(i) exemplary/aggravated damages/damages for humiliation, distress and anxiety (paragraphs 54 – 55 of the Particulars of Claim).

11. On 27 July 2017, Master Eastman granted an application by Ms Barker for Summary Judgment, for damages to be assessed in relation to her claim in the tort of deceit ("the Liability Judgment").
12. The purpose of the hearing before me, on 25 April 2018 was to determine what damages Ms Barker is entitled to recover from Mr Winter pursuant to the Liability Judgment.
13. Prior to the commencement of the hearing to assess damages, Mr Winter's position, in relation to the assessment of Ms Barker's damages, as set out in his witness statement of 29 November 2017 was that:

(a) he had spent more money from his own funds than Ms Barker had spent from her funds, towards funding the Lavish Lifestyle and he produced schedules purporting to demonstrate this;

(b) the purchase of the Property was aborted before Ms Barker met Mr Winter, it was aborted because Ms Barker could not obtain a mortgage, she could not obtain a mortgage, because she had no regular income;

(c) Ms Barker has kept all of the furniture which was purchased from the funds of Ms Barker and Mr Winter, and Ms Barker should give credit for that furniture;

(d) Ms Barker's Range Rover, which she owned at the start of her relationship with Mr Winter, was part exchanged for a new Range Rover. The part exchange value of Ms Barker's Range Rover was £35,000 and Mr Winter contributed the balance of the purchase price for the new Range Rover being £45,644. The new Range Rover was subsequently sold for £40,000, £35,000 of which went into Ms Barker's Halifax account. In those circumstances Mr Winter says that Ms Barker has no claim in relation to the part exchange of the Range Rover that she brought into the relationship with Mr Winter or the sale of the new Range Rover purchase during their relationship;

(e) Mr Winter should not be required to contribute towards the rent and utility bills on the property formerly occupied both by Mr Winter at Seawood Drive, after (on his case) he left Ms Barker, in February 2015.

14. At the start of the trial, and in his skeleton argument, Mr Higgo, on behalf of Ms Barker confirmed the following changes to the claims that Ms Barker would pursue:

(a) she no longer pursued a claim for the loss of a chance to purchase a property, similar to the Property from the capital that she held at the time of commencement of her relationship with Mr Winter, instead she elected to pursue only her alternative claim for interest on the capital that she says she would not have expended, but for Mr Winter's deceit;

(b) Ms Barker would not pursue a claim for the watches/jewellery which were gifted to her by Mr Winter during their relationship and which she subsequently sold or were pawned (and not redeemed) reducing the claim for unredeemed pawned and sold jewellery, to £67,500; and

(c) Ms Barker would not pursue the claim for monies expended on her HSBC credit card of £9,995, because it was too difficult to demonstrate the amount of credit she incurred on that card that was attributable only to joint expenditure or to the period after Ms Barker entered into the relationship with Mr Winter, as a result of Mr Winter's deceit, reducing the claim for liabilities incurred on credit cards to £9,952; and

(d) Ms Barker sought only half of the outgoings on Seaward Drive, incurred from February 2015 to January 2016 totalling £11,064.54.

15. Mr Higgo says that, the effect of the Liability Judgment being entered, for damages to be assessed, by Master Eastman on 27 July 2017, is that Mr Winter cannot deny those allegations set out in paragraphs 36, 40, 41, 42, 50 and 51 of the Particulars of Claim, which are deemed to have been already determined, by virtue of the entry of the Liability Judgment. Those allegations are that:

(a) Ms Barker was deceived into providing her capital to fund the Lavish Lifestyle;

(b) Mr Winter deceived Ms Barker into believing that he would repay the monies that she expended, from her capital on the Lavish Lifestyle;

(c) s Barker would not have provided her capital to Mr Winter to fund the Lavish Lifestyle, if she had not been deceived by Mr Winter;

(d) Ms Barker is entitled be put in the position she would have been in, if she had not been deceived;

(e) M Barker is entitled to the return of her capital, less any benefit that she has received, as a result of the joint spending, which she is legally obliged to account for; and

(f) M Winter cannot claim that Ms Barker suffered no loss, as a result of Mr Winter's deceit.

16. I am satisfied that Mr Higgo is right that, entry of the Liability Judgment does include a determination of those factors pleaded by Ms Barker which are set out in paragraph 15 above.
17. Mr Robinson says that Ms Barker pleaded, in her Particulars of Claim, that, but for Mr Winter's deceit she would have kept her finances separate from Mr Winter's and would not have funded joint expenditure, but only her own expenditure. Ms Barker does not, however, plead that she would not have entered into or not continued a relationship with Mr Winter, but for his deceit. The net effect of Ms Barker's pleading, in her Particulars of Claim, says Mr Robinson, is that the expenditure of Ms Barker and Mr Winter on the Lavish Lifestyle which in fact incurred would have been incurred in any event and Ms Barker would have contributed her share of the cost of the Lavish Lifestyle, so that Ms Barker's capital would have been expended in any event (because Mr Winter contributed more of his funds towards the Lavish Lifestyle than Ms Barker contributed), even if there had been no deceit by Mr Winter.

WITNESSES

18. Ms Barker signed three witness statements in support of her case being witness statements dated 1 November and 13 December 2017 and 23 April 2018.
19. Mr Winter relied on his witness statement dated 29 November 2017 and a witness statement signed by his sister, Sarah Eze (Ms "Eze") on 22 March 2018. The substance of Ms Eze's witness statement was that she had told Ms Barker, in July 2012, that Mr Winter had no money and that he had a problem with failing to control his spending.
20. Mr Higgo objected to Ms Eze's witness statement being allowed in evidence at the hearing, because the witness statement had not been provided in accordance with the directions for filing of witness statements, which provided for witness statements to be exchanged by 29 November 2017. I allowed Ms Eze's statement into evidence and allowed Mr Higgo to cross examine Ms Eze on the contents of her witness statement at the hearing.
21. The substance of Ms Eze's evidence was that she had made Ms Barker aware, in July 2012, that Mr Winter had little money and had problems controlling his expenditure. Ms Eze suggests that Ms Barker should have been aware therefore that, whatever Mr Winter said to her, he did not have sufficient resources to fund their Lavish Lifestyle (including to reimburse Ms Barker for monies that she advanced to Mr Barker to fund the Lavish Lifestyle). I have already accepted however (paragraph 15 above) that the Liability Judgment has already determined that Ms Barker was deceived by Mr Winter into providing her capital to Mr Winter and therefore the evidence of Ms Eze cannot be taken to undermine that finding. I will consider Ms Eze's evidence below, in the context of Ms Barker's claim for aggravated damages.

ISSUES

22. In order to assess the damages that Ms Barker is entitled to recover from Mr Winter, I need to determine the following issues:

(a) Is the benefit of the pleasure that Ms Barker received from living the Lavish Lifestyle with Mr Winter, a benefit for which she should give credit against her claim?

(b) Would Ms Barker have expended her capital and assets in discharging her share of the cost of the Lavish Lifestyle, in any event, even if Mr Winter had not deceived her?

(c) How much was paid out of Ms Barker's capital in reliance upon Mr Winter's deceit?

(d) Should Mr Winter be regarded as having paid any monies back to Ms Barker or should an account be taken of the monies contributed by Mr Winter towards the Lavish Lifestyle, in order to determine what damages Ms Barker is entitled to recover?

(e) How much did Ms Barker lose as a result of her Range Rover car being sold, in reliance on Mr Winter's deceit?

(f) What liabilities did Ms Barker incur on her credit cards, in reliance upon Mr Winter's deceit?

(g) Is Ms Barker entitled to recover monies spent by her father in redeeming jewellery which had been pawned by Ms Barker and if so how much is she entitled to recover?

(h) What sum is Ms Barker entitled to recover in relation to jewellery sold or pawned by her, in reliance on Mr Winter's deceit?

(i) Can Ms Barker recover rent and other outgoings incurred by her in respect of Seaward Drive, from February 2015 to January 2016 and if so how much?

(j) Should Ms Barker give credit to Mr Winter for the furniture purchased during their relationship, which she has retained and if so what is the value of the credit that she should account for?

(k) Is Ms Barker entitled to recover interest on monies expended by her, from her capital, in reliance upon Mr Winter's deceit and if so how much interest? and

(l) Is Ms Barker entitled to recover damages for distress/ exemplary and/or aggravated damages (including for damage caused to her credit rating) from Mr Winter, as a result of his deceit and if so how much?

DOES MS BARKER HAVE TO GIVE CREDIT FOR THE BENEFIT OF LIVING A LAVISH LIFESTYLE?

23. Mr Higgo and Mr Robinson are agreed as to the basis upon which Ms Barker's claim for damages in deceit should be determined. That basis is set out in Clerk & Lindsell On Torts paragraph 18-41 "The measure of damages is the loss directly flowing from the claimant's reliance on the defendant's statement. This is generally speaking, the sum that will put him in the same position as if he had not relied on it. Credit must of course be given for any gains made by the claimant".
24. As to what damages can be recovered, in accordance with that principle, guidance was given by Lord Browne-Wilkinson in Smith New Court Securities Ltd v Citibank N.A.[1997] AC 254 at page 266, in the context of a case where the plaintiff had been induced to buy a property by virtue of a fraudulent misrepresentation "In sum, in my judgment the following principles apply in assessing the damages payable where the plaintiff has been induced by a fraudulent misrepresentation to buy property: (1) the defendant is bound to make reparation for all the damage directly flowing from the transaction; (2) although such damage need not have been foreseeable, it must have been directly caused by the transaction; (3) in assessing such damage, the plaintiff is entitled to recover by way of damages the full price paid by him, but he must give credit for any benefits which he has received as a result of the transaction; (4) as a general rule, the benefits received by him include the market value of the property acquired as at the date of the acquisition; but such general rule is not to be inflexibly applied where to do so would prevent him obtaining full compensation for the wrong suffered……"
25. Mr Robinson says that Mr Winter contributed more towards the Lavish Lifestyle than Ms Barker did and as such, Ms Barker has received a benefit at least equal to and, on Mr Winter's evidence, well in excess of what she has lost in terms of the expenditure of her capital and those of her assets which were realised in order to fund the Lavish Lifestyle.
26. Mr Higgo says that the burden falls upon Mr Winter to establish that Ms Barker received some benefit for which she should give credit. In support of that proposition, Mr Higgo refers to the Court of Appeal case of Parallel Imports (Europe) Ltd v Radivan, 2007 EWCA Civ 1373. In that case, the defendant (Mr Radivan) fraudulently misrepresented to the claimant (Baglan) that cars were available for the claimant to purchase. As a result of that misrepresentation the claimant paid a sum of money to the dealer (DePrince) who was to supply those cars. In fact, no cars were available to be supplied and the money transferred to the dealer by the claimant was kept by the dealer on the basis that the dealer had other claims against the claimant against which it offset the payment received. Mr Radivan argued that there was no loss to the claimant because the monies paid to the dealer by the claimant had been credited against monies owing by the claimant to the dealer. Wall LJ at paragraph 29 said "As already explained, Baglan have proved that a fraudulent misrepresentation was made by Mr Radivan to Baglan, that Baglan was induced to make a payment to DePrince that it would not have otherwise made, that the cars paid for were not available and that Baglan was not repaid. In our judgment, it was for Mr Radivan to adduce evidence showing that Baglan had in reality suffered no loss by making the payment, because DePrince was entitled to keep it in respect of Baglan's existing liability to it."
27. Mr Higgo says that Ms Barker spent her money in reliance on Mr Winter's deceit which was that he would refund to her all of the money that she spent, had that deceit not occurred, then Ms Barker would not have expended her money. Mr Winter cannot therefore discharge the burden falling on him to show that Ms Barker should give credit for the mere enjoyment of the Lavish Lifestyle, Mr Winter has to show that Ms Barker obtained a tangible benefit from the joint expenditure in order for Ms Barker to have to give credit for it.
28. I find that Ms Barker is not required to give credit to Mr Winter for the enjoyment she received from the Lavish Lifestyle, which was funded partly from Ms Barker's own money and assets and partly from Mr Winter's monies and assets. I come to this conclusion for the following reasons:

(a) I accept that a burden does fall on Mr Winter to show that Ms Barker received a benefit for which she should give credit against the monies that she expended, as a result of Mr Winter's deceit. However even if the burden fell upon Ms Barker to show that the Lavish Lifestyle that she enjoyed, partly by the expenditure of her own funds and partly by the expenditure of Mr Winter's funds, did not amount to a benefit that she should give a credit for I would have found that she had discharged that burden, for the reasons that follow;

(b) I accept that as a result of the entry of Liability Judgment against Mr Winter by Master Eastman on 27 July 2017, it must be taken to be established that Ms Barker would not have made available her capital to Mr Winter to fund the Lavish Lifestyle;

(c) I accept that Ms Barker must give credit for any tangible benefit or gains that she made, as a result of monies being expended by her and by Mr Winter which would not have been expended, but for Mr Winter's deceit;

(d) I do not consider that the enjoyment that Ms Barker obtained from living the Lavish Lifestyle, jointly with Mr Winter amounts to a tangible benefit or gain, for which she should be required to give credit. In my judgment, in order for such a benefit or gain to be tangible, it must have a degree of permanence to it, which is not fulfilled by the transitory nature of the pleasure which I accept that Ms Barker experienced from the Lavish Lifestyle, such as expensive foreign travel, hotels, restaurants, the use of new and expensive cars and other benefits of a transitory nature which she would not have enjoyed, but for Mr Winter's deceit.

WOULD MS BARKER HAVE SPENT HER CAPITAL AND ASSETS IN FUNDING HER SHARE OF THE LAVISH LIFESTYLE WHICH SHE ENJOYED WITH MR WINTER IN ANY EVENT

29. Ms Barker is entitled to recover the loss she suffered, as a result of Mr Winter's deceit. In order to determine what loss Ms Barker suffered as a result of Mr Winter's deceit, I need to decide what would have happened, in particular to Ms Barker's expenditure, but for Mr Winter's deceit.
30. In my judgment, whilst Ms Barker does not explicitly say, in her Particulars of Claim that, but for Mr Winters deceit, she would not have enjoyed the Lavish Lifestyle which she did enjoy with Mr Winter, by funding her share of that Lavish Lifestyle, I consider it implicit, from the contents of Ms Barker's Particulars of Claim that she would not have done so and I find that she would not have done so, for following reasons:

(a) Ms Barker says that, if she had not been deceived by Mr Winter, then she would have invested a substantial part of her funds in purchasing a property, similar to the Property and that part of Mr Winter's deceit was to say that he would fund the purchase of a property for her outright from his funds, so that she would not need to enter into a mortgage to acquire a property; I accept that evidence. If Ms Barker had invested a substantial amount of capital in a new property it would not have been available to fund the Lavish Lifestyle; and

(b) I take it to be established by the Liability Judgment that, but for Mr Winter's deceit, which was that he would repay to her all of the monies that she expended on the Lavish Lifestyle, Ms Barker would not have provided her money to Mr Winter to fund the Lavish Lifestyle; and

(c) I am 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.

HOW MUCH DID MS BARKER EXPEND FROM HER CAPITAL

31. In her Particulars of Claim, Ms Barker pleaded that she had spent or transferred to Mr Winter the total sum of £303,492.10. It was agreed however, between Mr Higgo and Mr Robinson that arithmetically the sum of money paid out of Ms Barker's Halifax Savings Account either directly on joint expenditure or by transfer to Mr Winter (which he spent on himself and Ms Barker) amounted to £252,092.05 and I find that that is the sum of money which Ms Barker expended from her capital in funding joint expenditure with Mr Winter and transferring funds to Mr Winter. Ms Barker is entitled to recover that sum from Mr Winter because, for the reasons I have already set out, she would not have spent that capital, but for Mr Winter's deceit.
32. I must also take into account however, those monies which Ms Barker would have expended in any event, if Mr Winter had not deceived her. There is very little evidence from which I can assess what this might have been. Mr Higgo says that no claim is advanced by Ms Barker, for the £25,581 that stood to the credit of Ms Barker's Halifax current account in February 2012, all of which was expended during the course of her relationship with Mr Winter and all of which would have been available, but for Mr Winter's deceit, to fund Ms Barker's normal pre-relationship outgoings (unfortunately I have no details of what those pre-relationship outgoings were).
33. Mr Robinson points out that Ms Barker does not say that she would not have entered into a relationship with Mr Winter, but for his deceit however, in my judgment, but for Mr Winters deceit, Mr Winter and Ms Barker would not have lived together. I come to that conclusion because it is asserted on behalf of Mr Winter that he has an addiction to spending money and I note that once the money available for Mr Winter and Ms Barker to spend on their Lavish Lifestyle had gone, Mr Winter ceased to cohabit with Ms Barker by leaving her at Seaward Drive. On that basis I conclude that, but for Mr Winter's deceit, Ms Barker would have continued to rent the property which she rented before moving into Seaward Drive with Mr Barker (about which I have no details) or would have proceeded to purchase a property.
34. As I have said, I have hardly any information from which I could come to any accurate view as to how much money Ms Barker is likely to have expended, if she had not started cohabiting with Mr Winter and had not engaged with him in the Lavish Lifestyle. I note however, for example, that Ms Barker owned a relatively new Range Rover at the time she entered into the relationship with Mr Winter and she had the benefit of a relatively large divorce settlement of some £550,000, but no regular income, at that time. It was not suggested that Ms Barker has any qualifications or experience that would have enabled her to obtain a high or relatively high paying job, if she had not started living with Mr Winter, but it is possible that she might have obtained a job. On that basis I consider it reasonable to proceed on the basis that Ms Barker would have spent, out of her capital, around £15,000 per annum on food and other outgoings (including rental on a property). I acknowledge that this is a relatively modest sum (particularly having regard to the expenditure that Ms Barker actually engaged in, based on Mr Winter's deceit) but I consider that Ms Barker would have tried to avoid, so far as possible, spending the capital from her divorce settlement. The period during which Ms Barker cohabited with Mr Winter is from March 2012 to February 2015, a period of 35 months and on that basis I will assume expenditure of, in round terms, £45,000 by Ms Barker of which she had available to her £25,581 in her Halifax current account (for which she makes no claim against Mr Winter). Taking that rough and ready approach £20,000 should be deducted from Ms Barker's damages to reflect the expenditure that I consider she would have incurred in funding her living expenses, but for Mr Winter's deceit, over and above the sum of £25,581 that she held in her Halifax current account (for which she makes no claim).

SHOULD AN EQUITABLE ACCOUNT BE TAKEN OF MONIES CONTRIBUTED BY MS BARKER AND MR WINTER TOWARDS THEIR JOINT EXPENDITURE OR SHOULD MR WINTER BE REGARDED AS HAVING REPAID MS BARKER IN WHOLE OR IN PART?

35. Mr Winter's witness statement has attached to it schedules which set out details of how much money was provided by Mr Winter and Ms Barker towards expenditure during the course of their relationship, details of what those monies were spent on, and Mr Winter's assessment of whether the spending was for the benefit of Mr Winter, Ms Barker or for their joint benefit.
36. At trial new schedules were produced by Mr Winter which purported to show that items that Mr Winter had originally attributed to his own expenditure should be re-attributed to joint expenditure, thereby resulting in Mr Winter concluding that he had contributed significantly more towards expenditure than he had received as a benefit from that expenditure.
37. Mr Robinson did not pursue at trial an argument that, as Mr Winter (on his case) had spent more of his own money than he had received the benefit of in terms of items purchased for his sole benefit, or for the joint benefit of Ms Barker and Mr Winter, that therefore Ms Barker should be regarded as having no claim against him. For the avoidance of doubt, I can see no basis upon which Ms Barker's loss resulting from Mr Winter's deceit should be calculated according to the amount that Ms Barker and Mr Winter contributed towards their joint expenditure or to each other's expenditure and the benefit they received from that expenditure. The basis of Ms Barker's claim is that she would not have contributed her capital and assets towards the Lavish Lifestyle which Ms Barker and Mr Winter engaged in, but for Mr Winter's deceit and I have accepted that that is correct and her entitlement to damages should be assessed on that basis. The loss of Ms Barker's capital and assets which she used to fund the Lavish Lifestyle cannot therefore be reduced, to take into account the contributions made by Mr Winter towards that Lavish Lifestyle, because the making of those contributions by Mr Winter does not alter (what I have found to be) the fact that Ms Barker's capital assets have been expended as a result of Mr Winter's deceit and would not otherwise have been spent.
38. As for Mr Winter's claim that he has repaid monies to Ms Barker, that she expended from her own capital assets on joint expenditure, this is based on Mr Winter pointing to the expenditure which he incurred from his own resources, during his relationship with Ms Barker, towards his own expenditure, joint expenditure and items that he says should be attributed to the benefit of Ms Barker alone. This is simply another way of dressing up the "equitable accounting" argument alluded to in Mr Winter's witness statement. The expenditure of Mr Winter cannot be regarded as "repaying" Ms Barker the expenditure which she incurred on the Lavish Lifestyle and which Mr Winter accepted at trial he promised to repay to her, because Mr Winter's expenditure merely funded a part of the Lavish Lifestyle enjoyed by Mr Winter and Ms Barker, it was not the promised repayment by Mr Winter to Ms Barker of all the monies expended by Ms Barker on the Lavish Lifestyle. In order to be regarded as repayment, in my judgment, Mr Winter would have to transfer funds to Ms Barker, which were not then exhausted by Ms Barker funding the Lavish Lifestyle. Instead the monies expended by Mr Winter either relate to monies spent by him on the Lavish Lifestyle, or monies which he transferred to Ms Barker's account but which were then used by Ms Barker to fund the Lavish Lifestyle.

SALE OF MS BARKER'S RANGE ROVER

39. Ms Barker says that, at the start of her relationship with Mr Winter, she owned a Range Rover and that Mr Winter encouraged her to provide this Range Rover by way of part exchange, in order to purchase a new Range Rover. Ms Barker's Range Rover was allocated a part exchange value of £35,000 and Mr Winter paid the balance of the purchase price for the new Range Rover of £45,644. The new Range Rover was subsequently sold for £40,000 and Mr Winter says that, £35,000 of this was transferred to Ms Barker's account and thereafter a Volkswagen Golf was purchased for Ms Barker's use at a price of £7,500 (however the Volkswagen Golf was subsequently sold in order to fund joint living expenses).
40. Ms Barker says that she is entitled to recover the sum of £40,000 from Mr Winter being the price for which the second (newer) Range Rover was sold. Mr Robinson, on behalf of Mr Winter says that Ms Barker's claim should be limited to £20,000, being half of the value obtained on sale of the new Range Rover. The basis for this submission is that the new Range Rover was purchased by part exchanging Ms Barker's existing Range Rover, but also by Mr Winter contributing some £45,644 (Mr Winter's initial position, that as the proceeds of sale of the new Range Rover were paid to Ms Barker, she has no claim in relation to that Range Rover, did not appear to be pursued at trial, that case was based upon Ms Barker having received the proceeds of sale of the new Range Rover, but as those proceeds were ultimately expended in funding the Lavish Lifestyle that case was not sustainable).
41. In my judgment Ms Barker is entitled to recover the sum of £35,000 being the part exchange value attributed to that Range Rover which she brought into the relationship with Mr Winter. The reasons I have come to this conclusion are as follows:

(a) in the same way as Ms Barker expended monies from her Halifax Savings Account that she held in that account at the time she commenced her relationship with Mr Winter, towards joint living expenses, she also contributed (as things ultimately unfolded), towards joint expenditure, the value of the Range Rover that she had at the time she commenced her relationship with Mr Winter;

(b) the amount contributed by Mr Winter towards the purchase of a new Range Rover for Ms Barker would not, in my judgment, have been contributed if Mr Winter had not deceived Ms Barker into believing that he could and would fund, from his own resources, the Lavish Lifestyle (repaying monies contributed by Ms Barker). This is because I take the view that Ms Barker would not have part exchanged her Range Rover for a new Range Rover, costing more than twice the value of her existing Range Rover, but for Mr Winter's deceit that he would repay to Ms Barker all of her capital that she expended on the Lavish Lifestyle. If Ms Barker had not expended her funds in the way she did, then I do not consider that Mr Winter would have contributed £45,644 towards the purchase of a new Range Rover for Ms Winter (so Ms Barker should not have the benefit of the increased value obtained on sale of the new Range Rover);

(c) I see the £45,644 contributed by Mr Winter, as falling into the same category as the jewellery which was purchased by Mr Winter for Ms Barker and which Ms Barker has accepted she could not maintain a claim for (see paragraph 45 below). The £45,644, in my judgment, was gifted by Mr Winter to Ms Barker to enable the new Range Rover to be purchased for her and that gift would not have been made, but for Mr Winter's deceit; and

(d) as I have already mentioned, the proceeds of sale of the new Range Rover were used to fund joint expenditure which would not have been incurred but for Mr Winter's deceit so Mr Winter should repay to Ms Barker the value realised on the part exchange of the older Range Rover that Ms Barker brought into the relationship with her.

THE VALUE OF CREDIT CARD LIABILITIES INCURRED BY MS BARKER

42. As I have already noted, Mr Higgo conceded that Ms Barker could not show that the liability incurred on Ms Barker's HSBC credit card was incurred in relation to the joint expenditure of Ms Barker and Mr Winter. This reduced Ms Barker's claim for credit card liabilities incurred by her from £19,942 to £9,952.
43. I accept that the remainder of the credit card liabilities claimed by Ms Barker are liabilities, which were incurred as a result of Mr Winter's deceit and are recoverable by Ms Barker from Mr Winter. I come to this conclusion because:

(a) having considered the credit card statements produced by Ms Barker I am satisfied that the monies claimed relate to credit card liabilities incurred during the course of Ms Barker's relationship with Mr Winter; and

(b) I am satisfied that Ms Barker would not have incurred those credit card liabilities, but for Mr Winter's deceit, because I am satisfied that Ms Barker would have had no need or reason to incur liabilities on credit cards, given the cash resources available to her, at the start of her relationship with Mr Winter, other than to fund the Lavish Lifestyle, which Ms Barker would not have funded but for the deceit of Mr Winter.

IS MS BARKER ENTITLED TO RECOVER THE SUM OF £2,795.40 EXPENDED BY HER FATHER IN REDEEMING ITEMS OF JEWELLERY PAWNED BY MS BARKER?

44. Whilst I accept the factual basis for Ms Barker's claim, that is that she pawned jewellery in order to raise funds to discharge liabilities arising from the joint living expenses of herself and Mr Winter, which she would not have discharged, but for Mr Winters deceit and that her father expended £2,795.40 in recovering her jewellery from the pawnbroker, I am not satisfied that Ms Barker is entitled to recover monies expended by her father in redeeming the jewellery pawned by Ms Barker. The reason for this is that although Mr Higgo suggested that Ms Barker had incurred a liability to her father to repay him for the monies that he paid to the pawnbroker to redeem her jewellery, she does not plead that she incurred such a liability to her father nor does she say this in her witness statement. Absent such a pleading there is no basis upon which Ms Barker is entitled to recover monies expended by her father in redeeming her jewellery from the pawnbroker.

VALUE OF JEWELLERY PAWNED AND NOT REDEEMED OR SOLD BY MS BARKER

45. Ms Barker now accepts that the items of jewellery/watches which were purchased for her as gifts by Mr Winter and (which appear at items 2, 3, 5, 7, 9, 10 and 12 on the schedule of jewellery/watches sold/pawned at paragraph 23.5 of Ms Barker's witness statement of 1 November 2017 ("Schedule")) cannot form the subject matter of her claims against Mr Winter. I consider that concession is right because, if Mr Winter had not deceived Ms Barker into believing that he would repay to her all of the monies that she spent, then I do not consider it likely that Ms Barker and Mr Winter would have bought for each other the expensive presents (including jewellery and watches) which they in fact purchased.
46. The Schedule sets out what Ms Barker says is: (a) the value which Mr Winter agreed to pay her for her jewellery/watches which were pawned/sold; (b) the capital raised when items of jewellery/watches were pawned/sold; and (c) what Ms Barker says is the present value of each item. Ms Barker claims either (a) the sum which Mr Winter agreed to pay to her for the items that she pawned/sold; (b) the present value of the item; or (c) in the case of items pawned the capital raised by Ms Barker when it was pawned. Items 1, 4, 6, 8 and 11 in the Schedule are the items which were not gifted to Ms Barker by Mr Winter, the recovery of the value of which Ms Barker still pursues, none of those items were sold, they were all pawned with their capital value been received by Ms Barker and the item not being redeemed from the pawnbroker (and spent on joint expenditure).
47. I again need to ask myself what would have happened, but for Mr Winter's deceit and I find that Ms Barker would not have pawned items 1, 4, 6, 8 and 11 but for that deceit because, but for Mr Winters deceit, Ms Barker would have had no need to pawn her jewellery/watches to fund joint expenditure.
48. I am not satisfied that Ms Barker has made out her claim that items 1, 4, 6, 8 or 11 should be valued either on the basis of what she says that Mr Winter agreed to pay to her for the item (and in fairness to Mr Higgo he did not pursue the matter on this basis) or that her claim to these items should be valued according to the current value that Ms Barker attributes to the items.
49. As to valuing the items upon the basis of what Mr Winter agreed to pay for them, the Liability Judgment is based upon Mr Winter's deceit and not on his agreement to pay Ms Barker any value for her jewellery/watches. Ms Barker is therefore entitled to recover the value of items 1, 4, 6, 8 and 11, not what she says that Mr Winter agreed to pay her for them.
50. As to the values that Ms Barker attributes to items 1, 4, 6, 8 and 11, Ms Barker has produced evidence as to what she says is the current value of these items, by producing advertisements for either identical or similar items. The problem with this is that the items pawned by Ms Barker were second-hand, whereas the advertisements are for new watches and jewellery of either identical or similar description. Although I appreciate that high value watches and jewellery which are second-hand and in good condition may come close to the cost of purchasing the same item new, I am not persuaded that I should simply assume that the values will be identical or substantially identical.
51. Although I have no doubt that those pawnbrokers to whom Ms Barker pawned items 1, 4, 6, 8 and 11 on the Schedule made a profit on selling those items when they were not redeemed by Ms Barker, the capital value paid to Ms Barker by the pawnbrokers represents the only value which I am satisfied can safely and properly be attributed to those items. Ms Barker is therefore entitled to recover the values that she sets out in the Schedule as having been received by her from the pawnbrokers for those items when they were pawned. Although Ms Barker did receive the capital sum from the pawnbroker, she does not have to account for it to Mr Winter because the proceeds were used by Ms Barker to fund joint expenditure.

RENT AND OTHER OUTGOINGS ON SEAWARD DRIVE FROM FEBRUARY 2015 – JANUARY 2016

52. There is a dispute between Ms Barker and Mr Winter as to when their relationship ended. Ms Barker says that she understood that Mr Winter had gone into a clinic in February 2015 and was subsequently staying at his sister's house, with a view to re-establishing contact with his children. Ms Barker says, however, that Mr Winter continued to visit her from time to time and on that basis she did not consider the relationship as over at that point. Ms Barker says that she only considered the relationship to be over in January 2016 when she found out that Mr Winter was seeing another woman.
53. Mr Winter says that his relationship with Ms Barker was over in February 2015 when he left her. He also points out that he received correspondence from Ms Barker's Solicitors, Mancini Law dated 22 May 2015 demanding that he repay monies to her and that Ms Barker contacted the police in order to report his conduct to them in. In cross examination, Ms Barker accepted that Mancini Law did write to Mr Winter on her behalf demanding that he repay monies to her and that she did report Mr Winter's conduct to the police because she was not sure whether it was a criminal or a civil matter.
54. I am satisfied that the relationship between Ms Barker and Mr Winter was over in February 2015, I find that it was apparent from that point that they were not living together and there was no real prospect of their commencing living together again. It is inconsistent with Ms Barker considering her relationship with Mr Winter to be ongoing for her to instruct her solicitors to write to Mr Winter demanding that he repay money to her and contacting the police to report Mr Winter's conduct, on the basis that it might amount to criminal conduct. Although Mr Winter may have returned infrequently to see Ms Barker, after February 2015, it appears that Ms Barker was left by Mr Winter to fund for herself the outgoings on Seaward Drive. I do not consider, in any event, that the question of whether or not Mr Winter and Ms Barker were still in a relationship between February 2015 and January 2016, but not living together, is determinative of the question of whether or not (and if so to what extent) Mr Winter is liable to contribute towards the liability of Ms Barker for the outgoings on Seaward Drive between those dates.
55. In February 2015, Ms Barker was left in a position where a tenancy agreement had been signed on behalf of herself and Mr Winter for the property at Seaward Drive and she was jointly and severally liable with Mr Winter for that rent and for the other outgoings on Seaward Drive.
56. Ms Barker says that, with effect from February 2015, she was no longer enjoying the Lavish Lifestyle that Mr Winter and Ms Barker had enjoyed up to that point, she was having to cut back drastically on expenditure and to realise what remained of her assets in order to pay liabilities.
57. I find that, regardless of whether Ms Barker considered her relationship with Mr Winter to be ongoing after February 2015, Ms Barker's claim against Mr Winter for reimbursement of the outgoings on Seaward Drive from February 2015 fails because, even if Mr Winter is jointly and severally liable together with Ms Barker for the rent and other outgoings on Seaward Drive form February 2015 to January 2016, Ms Barker accepts that she has only discharged a small proportion of these liabilities. In those circumstances, so far as the creditor is concerned, the liability to discharge the rent and outgoings on Seaward Drive remain joint and several liabilities of Mr Winter and Ms Barker and I can see no basis upon which Ms Barker can maintain a claim against Mr Winter for liabilities that she has not discharged and which remain joint and several liabilities of Mr Winter and Ms Barker, to the various creditors which either both of Ms Barker and Mr Winter or one of them or neither of them may discharge in the future.

SHOULD MS BARKER GIVE CREDIT FOR FURNITURE SHE HAS RETAINED?

58. Ms Barker says that, when she moved with Mr Winter to the property at Seaward Drive, Mr Winter suggested that Ms Barker should get rid of all of her existing furniture to be replaced with new furniture more suitable to that property. Whilst Ms Barker accepts that she has retained some furniture which was purchased during the course of her relationship with Mr Winter (out of her funds and/or Mr Winter's funds) she says that she should not be obliged to account for the benefit of this furniture because all her existing furniture, which she would otherwise have the benefit of, was disposed of.
59. There is no evidence before me as to what furniture of Ms Barker was disposed of nor its likely value, nor do I have any details of the furniture purchased to replace it, other than in the very broadest of terms, or of its likely value now or as to which of the furniture which was purchased has been retained by Ms Barker. Whilst I accept, in principle that Ms Barker should account for any financial benefit that she has obtained from the purchase of furniture from joint funds which she has retained (that is financial benefit to the extent that the value of the new furniture exceeds the value of the furniture that Ms Barker previously held and which was disposed of) I have no information from which I could determine whether there has been any and if so what financial benefit to Ms Barker. I decline, in those circumstances to make any deduction from Ms Barker's damages claim for any benefit she may have received from the furniture purchased during her relationship with Mr Winter and retained by Ms Barker.

MS BARKER'S CLAIM FOR INTEREST

60. Mr Higgo refers to the case of Dresdner Kleinwort Limited v Commerzbank Bank AG [2013] EWCA Civ 394 in which he says that the court suggested that the rate of interest properly claimable by an individual who is deprived of their money is the rate at which those funds could be borrowed by an individual as an unsecured loan and on that basis, in Dresdner the interest rate of 5% above Barclay's base rate was chosen.
61. Mr Robinson says that the rate of interest should be the rate of interest that Ms Barker would have earned on her funds if she had retained them in her Halifax Savings Account and that he works this out to be 1.75 % per annum. Mr Robinson says that, when he asked Ms Barker in cross examination about what would have happened to the monies held by her in her Halifax Savings Account, but for Mr Winter's deceit, Ms Barker said that they would have remained where they were. Mr Robinson says that the court does not therefore need to apply a theoretical rate of interest to any funds that the court decides Ms Barker was deprived of the use of because the court knows that the rate of interest which Ms Barker would have earned on her monies, had she retained them, is the rate of interest on Ms Barker's Halifax Savings Account.
62. Mr Higgo elected not to pursue Ms Barker's case that she had lost the chance to purchase a property (which would have increased in value) as a result of Mr Winter's deceit. Nonetheless, Mr Robinson's submission depends on me concluding that Ms Barker would simply have left her funds in the Halifax Savings Account and that therefore the low rate of interest that she earned on her funds in that account should be used to calculate the compensation to which Ms Barker is entitled for being deprived of her funds, as a result of Mr Winter's deceit.
63. I do not think it is right to assume that Ms Barker would simply have kept her funds in her Halifax Savings Account, earning a relatively small amount of interest, if she had not contributed them towards the Lavish Lifestyle enjoyed by Mr Winter and Ms Barker. Nor is it right to assume that she would have invested the funds in a residential property or an investment which might have earned a very substantially better return. I find that the fair and proper way of calculating what Ms Barker should be entitled to by way of compensation for being deprived of the use of her funds, as a result of Ms Barker's deceit, is to follow the principle set out in Dresdner and award Ms Barker an approximation of the rate of interest at which funds could be borrowed by an individual on an unsecured basis and I see no reason to depart from the rate at 5% above Barclays Base Rate suggested in that case. Ms Barker will therefore be entitled to interest of 5% above Barclay's Base Rate upon the money that I have awarded to Ms Barker from the moment that Ms Barker parted with those funds.

DAMAGES FOR DISTRESS/EXEMPLARY/AGGRAVATED DAMAGES

64. As for exemplary damages, Mr Higgo produces a copy of the case report for Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122. In that case, Lord Nicholls notes at paragraphs 50 – 52 that exemplary damages are a controversial topic with awards of damages being primarily intended to compensate for loss rather than to punish. He states at paragraph 52 "Punishment is a function par excellence of the criminal law, rather than the civil law. But in Rooks v Barnard [1964] AC 1129 the House recognised that there are circumstances where, generally speaking, the conduct is not criminal and an award of exemplary damages would serve a useful purpose in vindicating the strength of the law. This purpose would afford "a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal": see Lord Devlin at p 1226. Lord Devlin identified two sets of circumstances ("categories of case") where this was so: oppressive, arbitrary or unconstitutional acts of government servants, and wrongful conduct calculated to yield a benefit in excess of the compensation likely to be payable to the plaintiff….".
65. Neither of the "categories of case" identified by Lord Devlin in Rooks v Barnard and referred to by Lord Nicholls in Kuddus apply here. Mr Winter is self-evidently not a servant of the government and I am not satisfied that his deceit was calculated to yield a benefit for Mr Winter in excess of the damages which I have awarded to Ms Barker for that deceit. Mr Winter enjoyed the Lavish Lifestyle at the joint expense of himself and Ms Barker and there is no basis upon which I could find that the enjoyment of that Lavish Lifestyle, by Mr Winter (which he contributed to with his own funds) somehow amounted to a greater benefit to him than the damages which I have awarded to Ms Barker, which are aimed at putting her in the position she would have been in had Mr Winter not deceived her.
66. As for distress and aggravated damages, Mr Higgo invites me to make a relatively modest award of around £2,500 to Ms Barker to reflect the distress caused to her by Mr Winter's deceit. Mr Higgo included in his submission the allegation that Mr Winter told Ms Barker that he was suffering from cancer. That allegation does not however form part of the particulars of deceit in Ms Barker's Particulars of Claim, which are taken to have been proved by the entry of the Liability Judgment and I do not consider therefore that I can take this alleged deceit into account in deciding whether or not to award aggravated damages and if so in what amount.
67. I accept that Ms Barker will have been caused significant distress, as a result of losing her capital, her credit rating and being pursued by various debt collection agencies and I accept that all of those consequences were caused by Mr Winter's deceit. I am satisfied that the level of distress suffered by Ms Barker is sufficient to justify an award of aggravated damages if that were the only matter to be taken into account, but in my judgment it is not the only factor that should be taken into account in deciding whether or not to award aggravated damages.
68. 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.
69. Whilst the entry of the Liability Judgment means that I must take it to be proved that Ms Barker was deceived into parting with her capital by Mr Winter, there are respects in which Ms Barker could be said to be the author of her own misfortune in that she engaged with Mr Winter in a free-spending Lavish Lifestyle, expending the whole of her capital in doing so, based on Mr Winter's reassurance that he had sufficient monies available to him to repay her all of her capital, to the extent that she expended it on that Lavish Lifestyle. Further, I accept the substance of the evidence of Ms Eze that she did provide a warning to Ms Barker in or about July 2012 that Mr Winter had a problem controlling his expenditure and that he was not as wealthy as he may have led Ms Barker to believe he was, and yet Ms Barker continued to believe what she was told by Mr Winter in preference to the warning that Ms Eze had given. In those circumstances I decline to make an award for aggravated damages in favour of Ms Barker.