Malik v Malik : South Lodge Flats Ltd v Malik (2019)


Questions of whether a claim to possession of a flat would be defeated by a defence of adverse possession, and whether raising the adverse possession defence would be an abuse of process, were not suitable for summary determination on the available facts.


The second to fourth defendants (D2-D4) appealed against the dismissal of their application for summary judgment in respect of the claim of the first defendant (D1) to possession of a flat.

The claimant freeholder had granted a long lease of the flat to D1 in 1978. He was the registered owner. He claimed that he was also the beneficial owner and he had been paying the service charges and ground rent under the lease since at least 1990. D2 was D1's brother and had been in occupation of the flat since at least 1987 together with his sons D3 and D4. D1 had commenced possession proceedings in 1987 but those proceedings were stayed. In 2000, D2 applied to the Land Registry to have title to the lease registered in his name on the basis of adverse possession, but that application was unsuccessful owing to the outstanding dispute over the ownership of the lease. In 2011, D1 applied to lift the stay. The judge decided that the stay should not be lifted. Part of his reasoning was that D1 could bring fresh possession proceedings. In discussions with the judge, D2, as a litigant in person, said that his adverse possession claim had been a mistake. In 2017 the claimant brought proceedings in respect of the flat against D1 as the registered owner and D2-D4 as the individuals in actual occupation. In those proceedings, D1 sought possession as against D2-D4, or alternatively the reimbursement of the sums he had spent on the flat. D2-D4 defended D1's claim against them on the basis that D1 had acquired the flat using funds belonging to a family business pursuant to an understanding that D1 would hold it on trust for D2; alternatively, they alleged that D2 was entitled to the flat by way of adverse possession. The judge dismissed their application to strike out D1's possession and reimbursement claims, or for summary judgment. They appealed in respect of D1's possession claim.

D2-D4 argued that there was no real prospect of D1 successfully resisting D2's adverse possession claim, given that D2 had lived at the property for more than 16 years between 1987 and 2003 against the wishes of D1 as the registered owner. D1 argued that D2 should not be permitted to rely on an adverse possession claim in light of what he had said to the judge on the application to lift the stay.


Adverse possession - The adverse possession claim could not be resolved without a trial. The key issue was whether D2 had the relevant animus possidendi, the intention to possess, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, Ofulue v Bossert [2009] UKHL 16 and J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch) considered. In addition to factual possession, some examination of D2's state of mind was necessary because he had to occupy on his own behalf and for his own benefit to establish adverse possession. Furthermore, what was relevant in principle was his state of mind during the period 1987-2003. The apparent basis of D2's occupation had varied. At times he had claimed part ownership, but he had told his trustee in bankruptcy that he had no interest. It might be necessary to investigate how the purchase of the flat had been financed and the role of D1 and D2's father. If D2 was occupying at the will of his father, he would lack the necessary intention to possess on his own account. Whether there was some kind of licence was not determinative, but was relevant to the issue of D2's state of mind at the relevant time. The adverse possession issue should be decided on facts determined at trial rather than on the limited information available. Some of the facts would have to be determined at the trial of the other issues in any event.

Abuse of process - It was not necessarily an abuse of process for a party to take inconsistent stances in proceedings, Bradford & Bingley Building Society v Seddon [1999] 1 W.L.R. 1482 and Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3 followed. The judge considering the application to lift the stay had not determined the adverse possession issue. His core reasoning was that the 1987 proceedings were so stale that fresh proceedings would be the right way forward. It was not right to focus too narrowly on what had been said by D2 as a litigant in person. In any event what he had said was equivocal. It was not safe to reach a conclusion about the abuse of process issue on the available facts. There was also a compelling reason for a trial within CPR r.24.2(b) because of the overlap between the facts to be decided on the reimbursement claim and those relevant to the ownership issues, Iliffe v Feltham Construction Ltd [2015] EWCA Civ 715 considered.

Appeal dismissed