Stephen Jourdan KC appears in Court of Appeal adverse possession appeal
On 4 November 2024, the Court of Appeal handed down judgment in two appeals heard together, Malik v Malik [2024] EWCA Civ 1323
Stephen Jourdan KC appeared for Vaqar Malik, the appellant in one appeal and the respondent in the other, instructed by Prakash Patel and Sophie Angus of Spencer West.
The appeals concerned a dispute between two brothers as to the ownership of a flat in Knightsbridge held under a 999 year lease. The lease was held in the name of Iftikhar Malik, but in 1987 his brother Vaqar locked Iftikhar out of the flat. Vaqar claimed there was a family partnership, the flat had been purchased by the partnership and he was entitled to the flat as having been allocated to him as part of his share in the partnership. He asked Iftikhar to pay the service charges due under the lease of the flat, which Iftikhar did. Vaqar remained in sole physical control of the flat thereafter.
The 1987 possession action was stayed. Iftikhar applied for the stay to be lifted, but this was refused by Mr Jarvis QC in 2012. Iftikhar then started a new possession claim in 2018.
In March 2022, HHJ Gerald gave judgment in the new possession claim. He rejected Vaqar’s claim that the flat had been purchased for him. He held that Vaqar could not rely on adverse possession. He said this would be an abuse of the process of the Court, because Vaqar had told Mr Jarvis QC at the 2012 hearing that there would be no adverse possession defence if Iftikhar started a new claim. He also held, in any event, that Vaqar did not have the intention to possess because of his request that Iftikhar paid the service charges.
Vaqar and his sons appealed successfully to the High Court on the adverse possession issues.
Bacon J held that:
- Vaqar was not precluded on the grounds of abuse of process from bringing his claim for adverse possession, because it was not possible to identify, from his exchanges with Mr Jarvis QC in 2012, a clear representation by Vaqar that neither he nor his wife would in future proceedings advance any defence of adverse possession. HHJ Gerald was therefore wrong to find that Vaqar had disavowed an intention to claim adverse possession in any new proceedings, so as to make it an abuse of process for the point to be advanced as a defence to the 2017 action.
- The obligation to pay service charges is an incident of ownership of the lease, not of possession. As payment of the service charges is not a necessary incident of possession, then an intention to possess does not require the payment of the service charges.
Bacon J therefore allowed the appeal. However, she also ordered that the stay on the 1987 possession action should be lifted, and gave summary judgment to Iftikhar in that action. As that action had been started before the expiry of the limitation period, there could be no adverse possession defence in that action.
Vaqar appealed from that decision, and Iftikhar cross-appealed against Bacon J’s decision to overrule the decision of HHJ Gerald.
The Court of Appeal allowed Iftikhar’s appeal. The Court held that there was no need for Vaqar to have made a clear statement to Mr Jarvis QC. HHJ Gerald was entitled to conclude that Vaqar had adopted clearly inconsistent positions, based on his finding that he intended to convey, and did convey, to Mr Jarvis QC that he would not make a claim in adverse possession as part of his strategy to dissuade the court on that occasion from lifting the stay on the 1987 action. Zacaroli LJ said: “If a party sets out to persuade the court that it holds a certain position, the court is so persuaded, and the court acts on the footing that the party holds that position, then that creates the risks of unfairness and of bringing the administration of justice into disrepute which underpin the estoppel by conduct principle, if that party subsequently adopts the opposite position. This is sufficient to demonstrate “clearly inconsistent” positions, without the need for an objectively unequivocal statement on the earlier occasion.”
The Court did not deal with any of the other issues raised by the appeals, because that determination rendered it either otiose or academic to address the remaining points raised on the combined appeals.
The judgment can be downloaded here.
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