Vaqar Malik & Ors. v Iftikhar Ahmad Malik

An abuse of process may arise where a litigant obtained an earlier judgment or order on the basis of a position taken in the litigation and it would be unjust to permit resiling from that position. The position must be objectively clear, and must have been a material factor in the earlier decision; it need not have been decisive.

For adverse possession, intention to possess requires an intention to exercise custody and control for one’s own benefit. Payment of leasehold service charges is an incident of ownership, not mere possession. A request that the paper owner pay those charges is therefore not, without more, equivocal conduct or inconsistent with an intention to possess.

The appeal arose from a long-running dispute concerning a Knightsbridge leasehold flat. HHJ Gerald found that Iftikhar Malik was the legal and beneficial owner and gave judgment for possession and mesne profits. He dismissed Vaqar Malik’s adverse possession counterclaim as an abuse of process and, alternatively, for failure to establish the necessary intention to possess.

The appeal challenged both conclusions. Iftikhar relied on a respondent’s notice concerning alleged consent or licensing under a 1992 family agreement. He also applied to lift the stay of possession proceedings commenced in 1987. The central issues were whether the adverse possession claim was abusive, whether payment of service charges defeated intention to possess, whether new licensing points could be raised on appeal, and whether the earlier proceedings should be revived.

1. Abuse of process. Applying [2021] EWCA Civ 1429, the relevant question was whether Vaqar’s earlier stance was a reason for the 2012 order refusing to lift the stay, and whether allowing him to resile would cause injustice and undermine the integrity of the judicial process. A “but for” test was unnecessary. A material factor sufficed where the earlier decision involved several considerations. The objective interpretation of Vaqar’s statements did not disclose a clear representation that he would never advance adverse possession. The abuse finding was therefore set aside.
2. Intention to possess. Under [2003] 1 AC 419, possession requires factual possession and an intention to exercise custody and control on one’s own behalf. The obligation to pay leasehold service charges rests on the leaseholder or assignee and is not an incident of mere possession. Vaqar’s request that Iftikhar pay those charges did not undermine his intention to possess. His physical control and exclusion of others were not equivocal. The alternative reasoning based on service charges was also set aside.
3. Respondent’s notice. The court distinguished between a factual case rejected at trial and a genuinely new issue on appeal. New points are generally excluded where they would require new evidence or a materially different trial. The alleged consent of Iftikhar or Bilal was not properly raised below and would have required different evidence. The licensing point was consistent with the pleaded issues but failed on the facts found. Vaqar did not believe that he occupied as Bilal’s licensee.
4. Stay of the 1987 proceedings. Applying the three-stage approach in [2014] EWCA Civ 906, the delay was serious, but responsibility was shared and the circumstances had materially changed. The stay was lifted and judgment was entered for Iftikhar in the 1987 proceedings.

• High Court, Chancery Appeals: Appeal from HHJ Gerald’s order dated 14 March 2022. The appeal was allowed on abuse of process and intention to possess; the respondent’s notice was dismissed; and the stay of the 1987 proceedings was lifted.
• Central London County Court: HHJ Gerald found Iftikhar to be the legal and beneficial owner, dismissed the adverse possession counterclaim, and ordered possession and mesne profits.