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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Garcia v Garcia  EWHC 1175 (QB) (05 May 2021)
Cite as:  EWHC 1175 (QB)
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QUEEN'S BENCH DIVISION
URGENT APPLICATIONS COURT
Strand, London, WC2A 2LL
B e f o r e :
| QUINCE GARCIA
|- and -
Gabriel Awosika (Astute Legal Solicitors) for the Defendant
Hearing date: 4.5.21
Judgment as delivered in open court at the hearing
Crown Copyright ©
MR JUSTICE FORDHAM :
Mode of hearing
The Claimant's application to this Court
The Claimant's application is refused
The application returns
The application is granted
"UPON the Claimant asserting that he had been unlawfully evicted from his home at Handen Road by the Defendant and that he was street homeless and had been sleeping in his motorcar; AND UPON the court adjourning the matter in order for the Defendant to be given notice of the making of this application and a chance to be heard; AND UPON the court being satisfied that the Defendant had been served by text and post with notice of the application and had not responded thereto"
The Judge then made these orders:
"(1) The Defendant do forthwith permit the return to the premises at Handen Road (2) The Defendant shall not take any steps to interfere with the right of the Claimant to reside at Handen Road until further Order of the Court. (3) The order of Recorder Thain made in the [BFC] on 15 March 2019 be restored in like terms pending further application in the said matter. (4) The Claimant do apply to restore the matter as soon as possible before the [BFC] in order to resolve the dispute between the parties. (5) Upon the [BFC] been seized of the matter again, this Order shall cease to have effect. (6) The Defendant has liberty to apply on 24 hours notice to the Claimant to discharge this Order. (7) the Claimant shall serve this Order personally on the Defendant on Friday, 23 April 2021, alternatively by personally posting a copy of the Order through the Defendant's letterbox. (8) The costs of these proceedings today are reserved."
The applicant re-enters the House
The Defendant's application to this Court
Directions and evidence
Issues which do not fall for determination
The central question
The approach to that question
Were the documents served?
"FAO: Ms Patricia Garcia. This is to formally put you on Notice. That after 48 hours you will be expected to attended the Royal Courts of Justice (RCJ). In the hearing of Mr Quince Garcia v Ms Patricia Garcia".
The Judge recorded in the recital to his order that he was satisfied, in part, by reference to the text, the screenshot of which the Claimant had produced. But, in my judgment, beyond doubt the Judge was materially influenced by the proof of posting and certificate of service, and by the witness statement in which the Claimant stated: "the application was served by Royal Mail guaranteed next day delivery service on 20 April 2021 (supporting documents enclosed)". That witness statement was signed by the Claimant and included a statement of truth. So did the certificate of service, also signed by the Claimant, which stated that the application had been served by 1st class post (next day delivery) on 20 April 2021. The Claimant produced the Post Office certificate of posting. The Judge, entirely understandably, was satisfied that service by post of the application at least had been undertaken and that this was the proof of posting of that documentation.
A live weigh-in
Conclusion on service
'Sleeping in my car'
Bromley Family Court
Not a possession order