In the case of Garcia v Garcia, the claimant (Mr Garcia) and the defendant (Mrs Garcia) were ex-spouses who occupied separate parts of a house (the property), pursuant to an occupation order made by the Bromley Family Court.
On 9 April 2021, an altercation took place, following which the claimant left the property and the defendant changed the locks. On 19 April 2021, the claimant made an application in the Queen’s Bench Division to the urgent applications judge for an order permitting him to return to the property, claiming that he had been evicted from his own home, that he was now homeless and that he was being forced to live in his car.
At the hearing on 19 April 2021, Martin Spencer J refused the application (on the basis that the claimant had given no adequate reason why he was unable to give notice to the defendant of the application), and stated that the defendant must be given 48 hours’ notice of the application.
The application came back before Martin Spencer J on 23 April 2021. The claimant provided the court with evidence of service of the application on the defendant, including a witness statement in which the claimant stated that the application had been served on the defendant by Royal Mail guaranteed next day delivery. The claimant also filed a certificate of service which he had signed, stating that the application had been served by first class post (next day delivery) and produced the Post Office certificate of posting dated 20 April 2021. The judge was satisfied that service of the application by post had been undertaken and made orders that, inter alia, the defendant permit the claimant to return to the property (the mandatory orders). The claimant proceeded to re-enter the property and change the locks.
Three days later, the defendant filed an application to discharge the mandatory orders, on the basis that the claimant had misled the court by stating that he had served the documents on her. The defendant served evidence that she had received an envelope on 21 April 2021 which contained only a glossy fashion magazine and not the application papers. The defendant also alleged that the claimant had misled the court by informing it that he had been unlawfully evicted and was street homeless and living in his car.
The defendant’s application was heard by Fordham J.
The central question was whether the claimant had demonstrably materially misled the court in order to obtain the mandatory orders. The postage on the envelope produced by the defendant matched that on the Post Office certificate of posting produced by the claimant and there was “no doubt” that the envelope received by the defendant was the one to which the claimant’s proof of postage related. The court was therefore required to choose between the parties’ accounts of what the envelope delivered to the defendant had contained: did the envelope contain the application documents, or a fashion magazine?
The certificate of posting included the weight of the envelope (0.297kg). The court observed that it would be possible to weigh the 22 pages of application documents and then weigh the magazine. The judge permitted the defendant’s counsel to carry out this weigh-in live during the remote hearing, with photographs and a video being sent to the parties and the judge’s clerk. The envelope containing the application weighed just 0.127kg, whereas the envelope containing the magazine weighed exactly 0.297kg; a “perfect fit” with the weight on the certificate of posting. The judge emphasised that this was not a pre-prepared exercise on the part of the defendant’s solicitor and was one that had been carried out at the invitation of the court.
On the basis of the live weigh-in, the judge concluded that the claimant had not served the defendant with the application, and that instead, “what he did was to send an envelope containing a fashion magazine and use the proof of postage to convince a judge that he had sent the papers.” The judge found that the claimant had materially misled the court by stating in his witness evidence and certificate of service that he had served the application on the defendant by first class post. The judge also found that the claimant had materially misled the court by stating that he was still being forced to sleep in his car.
In the circumstances, the judge discharged the mandatory orders without reference to the underlying substance of the parties’ positions, and awarded the defendant her costs on the indemnity basis.
The facts of this case (in particular the claimant’s conduct) are in many respects extreme. However, the approach taken by the court highlights two important issues that have broader application.
The first is the willingness of the court to adopt a pragmatic and creative approach to analysing evidence in order to ascertain the truth. While the concept of a “live weigh-in” of evidence will no doubt be unfamiliar to many lawyers, it was precisely what was needed in the circumstances to distinguish between the two competing accounts that had been presented to the court by the parties.
The second is the consequences of a breach of the obligations of truthfulness and candour that a party has to the court. The judge noted that:
“The Courts rely, and need to be able to rely, on the accuracy and truthfulness of what they are told – accompanies by a statement of truth – by those who apply to the Court, especially on an urgent basis. The duty of candour and truthfulness applies to an applicant who is a litigant in person with no less rigour than it applies to legally represented clients and those who represent them.”
A party who is untruthful and fails to meet the duty of candour on an urgent application risks having the order they obtain set aside without consideration of the merits and, as this case demonstrates, this applies whether or not the defaulting party is legally represented.