Malik v Malik

Summary judgment is inappropriate where adverse possession depends on disputed evidence about the occupier’s intention, the basis of occupation or the effect of an alleged family arrangement. Intention to possess requires an intention to exercise physical custody and control on one’s own behalf and for one’s own benefit. Occupation on behalf of a third party may raise a triable issue as to whether possession is vicarious. Whether inconsistent positions amount to an abuse of process requires a broad, merits-based assessment of all the facts. A compelling reason for trial may also exist where summary disposal would leave materially overlapping issues for determination.

The appeal arose from a long-running dispute concerning a leasehold flat. Iftikhar Malik, the registered leaseholder, brought a Part 20 possession claim against his brother Vaqar Malik and Vaqar’s sons. The defendants contended that Vaqar was entitled to the flat under a trust, proprietary estoppel or adverse possession.

HHJ Gerald refused summary dismissal of the possession claim and permission to appeal. The defendants sought permission to appeal and, if granted, challenged the refusal of summary judgment on adverse possession. Iftikhar also argued that reliance on adverse possession was an abuse of process because Vaqar had previously indicated that he would not advance such a defence.

1. Outcome. Permission to appeal was granted, but the appeal was dismissed. The application to strike out the adverse possession allegations as an abuse of process was adjourned to the trial judge.
2. Summary judgment. Under CPR 24.2, the applicant had to show that the opposing case had no real prospect of success and that there was no other compelling reason for trial. The court must not conduct a mini-trial or resolve complex factual issues summarily. The appeal permission test under CPR 52.6 applied the same relatively low threshold, although case-management appeals required particular restraint.
3. Adverse possession. The relevant inquiry comprised factual possession and an intention to possess. The latter meant an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the paper owner, so far as reasonably practicable. The relevant intention was Vaqar’s intention during the alleged period of adverse possession, not his present belief.
4. The evidence raised a realistic prospect that Vaqar had occupied under a 1992 family agreement, at the will of his father and pending allocation of the property. If he occupied on behalf of a third party, possession might be vicarious and the third party might be the person entitled to claim adverse possession. The precise effect of the agreement and the basis of Vaqar’s occupation required evidence and could not safely be determined summarily. Alston and Sons v BOCM Pauls Limited [2008] EWHC 3310 (Ch) was preferred to the contrary approach discussed in Clowes Developments (UK) Ltd v Walters [2005] EWHC 669, but did not determine the factual issue.
5. Abuse of process. Inconsistent positions do not automatically constitute abuse. The court must undertake a broad, merits-based assessment of all the circumstances, including whether permitting the later position would be unfair or bring the administration of justice into disrepute. The facts surrounding Vaqar’s statements in 2012 required investigation at trial.
6. Compelling reason for trial. Summary disposal of the adverse possession issue would not resolve the parties’ primary trust claim, proprietary estoppel claim or related reimbursement issues. The overlap between those issues, together with the existing trial listing and the need to avoid further delay, provided an additional compelling reason for trial.

1. High Court (Chancery Division): HHJ Gerald refused summary dismissal of the possession claim and refused permission to appeal. The order was dated 7 March 2019.
2. High Court (Chancery Division): permission to appeal was granted, but the appeal was dismissed. The strike-out application was adjourned to the trial judge.