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Malik, Malik & Malik v Malik [2023] EWHC 59 (Ch)

23 January 2023

Thomas Munby KC and James Kinman (instructed by Ken Duncan and Alina Neal of Stephenson Harwood LLP) represented the successful paper title owner in a long-running family dispute over the ownership of a Knightsbridge flat.  The case gave rise to important questions relating to the emerging doctrine of what has been termed “judicial estoppel” and the law of adverse possession.

Iftikhar Malik purchased a flat in 1978.  Following a breakdown in family relations, his brother Vaqar Malik took occupation of the flat in January 1987, barring admission to Iftikhar.  Vaqar asked Iftikhar to continue paying the service charge, and Iftikhar did so.

Iftikhar issued proceedings for possession of the flat in the High Court in July 1987.  These were stayed in December 1987 following a failure by Iftikhar to pay security for Vaqar’s costs into Court.  They were further stayed in 2000 pursuant to Practice Direction 51A when the Civil Procedure Rules were introduced.

In 2011, Iftikhar applied for the stays which had been applied to his 1987 action to be lifted.  That application was dismissed in 2012 by Mr John Jarvis QC (sitting as a High Court Judge).  In doing so, Mr Jarvis QC recorded that he had been told by Vaqar and Vaqar’s then wife that they would not have an adverse possession defence to any future claim for possession.

In 2018, Iftikhar issued fresh proceedings for possession of the flat in the County Court.  This was met by a defence from Vaqar that the flat was always held on constructive trust for him and, in the alternative, he was entitled to be registered as proprietor of the leasehold estate by reason of 12 years’ adverse possession prior to October 2003.

Following a trial which commenced in January 2020 but (owing to various complications) did not conclude until March 2022, HHJ Gerald found that: (a) the flat was never held on constructive trust for Vaqar; (b) it was an abuse of process for Vaqar to assert an entitlement to the flat founded on adverse possession, given that Vaqar had told Mr Jarvis QC that he had no such defence; and (c) even if Vaqar had been entitled to assert an adverse possession defence, it would have failed, because the request that Iftikhar pay the service charge was inconsistent with an intention to possess (such intention being necessary to found an adverse possession defence). 

Vaqar appealed the second and third of these findings.  Iftikhar responded with a further application to lift the stay on his 1987 proceedings and for summary judgment therein.

On appeal, Bacon J considered the developing law regarding the situations in which a party may be barred from taking a particular position by reason of past statements to the Court.  She reached the view that the representations made by Vaqar to Mr Jarvis QC were not sufficiently clear when read objectively to prevent Vaqar from raising an adverse possession defence in subsequent litigation.

Bacon J also held that, because a liability to pay a service charge is an incident of the legal relations arising out of a lease, rather than an incident of possession of land subject to a lease, Vaqar’s request that Iftikhar pay the service charge was irrelevant to the question of whether or not Vaqar had an intention to possess the flat. 

However, Bacon J also found that Vaqar’s decision to assert an adverse possession defence justified a reappraisal of whether it was appropriate to lift the stays imposed on the 1987 action.  Taking all the circumstances into account, she exercised her discretion to lift the stays, and granted Iftikhar summary judgment in his 1987 action, awarding him the flat.

Thomas Munby KC and James Kinman represented Iftikhar Malik.  Vaqar Malik, together with his sons Fahim and Rahim, was represented by Stephen Jourdan KC.

Judgment can be viewed here

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