Garcia v Garcia

An applicant seeking urgent interim mandatory relief owes the court a strict duty of candour and truthfulness. That duty applies equally to litigants in person. Where the court is materially misled by false statements or misleading evidence, it may discharge the orders obtained without determining the underlying substantive dispute. On an application under a liberty to apply provision, the court must establish a sufficiently secure factual platform before exercising its discretion. A high degree of confidence is required where disputed facts are material.

The parties were formerly married and disputed occupation of their former family home. On 23 April 2021 Martin Spencer J made interim mandatory orders requiring the Defendant to permit the Claimant to return to the property, restraining interference with his residence, and purporting to restore an expired occupation order.

The Defendant applied under the liberty to apply provision to discharge those orders. She alleged that the Claimant had materially misled the court about service of the application and his homelessness. The central issue was whether the Claimant had demonstrably and materially misled the court in obtaining the interim relief.

1. The Defendant’s application was granted. The mandatory orders made on 23 April 2021 were discharged, together with consequential paragraphs requiring restoration before the Bromley Family Court. The Claimant was ordered to pay the Defendant’s costs, summarily assessed at £9,697.50 on the indemnity basis.

2. On an interim application under a liberty to apply provision, the court may determine whether it was materially misled when making mandatory orders. It is not required to conduct a full trial of every disputed factual issue, but must have a secure factual platform. Where facts are disputed, a high degree of confidence is required before exercising the relevant discretion.

3. The Claimant had materially misled the court about service. The evidence established that the envelope corresponding to the certificate of posting contained a fashion magazine, not the application papers. His certificates of service and witness statements were therefore materially misleading.

4. The Claimant had also materially misled the court about continuing to sleep in his car. His own account established that he had stayed with friends and his niece after 12 April 2021. That misstatement was material to the assessment of the balance of convenience and justice.

5. The duty of candour and truthfulness applies with no lesser rigour to a litigant in person than to represented parties. False statements verified by statements of truth are particularly serious where they result in mandatory orders in urgent and highly charged circumstances. The orders could therefore properly be discharged without resolving the underlying dispute.

6. The discharge did not amount to a possession order. It removed the High Court order which had provided the Claimant’s asserted justification for remaining at the property. Any possession issue remained subject to the applicable legal rules, mechanisms and judicial forums.

The application arose from interim mandatory orders made by Martin Spencer J in the High Court on 23 April 2021. The Defendant exercised the liberty to apply contained in that order and sought its discharge. The present court discharged orders (1)–(3) and consequential paragraphs (4)–(5).