Iftikhar Malik v Vaqar Malik

Estoppel by conduct, as a species of abuse of process, requires a broad, merits-based assessment. A party may be precluded from adopting a position clearly inconsistent with one which that party intended to convey, which the earlier court accepted and upon which it acted. The earlier position need not have been expressed through an objectively clear and unequivocal representation.

Where the earlier decision involved balancing several factors, it is enough that the position adopted was a material reason for that decision. The later court need not establish that the decision would otherwise have been different. An appellate court should interfere with a first-instance evaluative judgment on abuse of process only for an error of principle, a material omission or irrelevant consideration, or a conclusion outside the permissible range.

Two brothers disputed ownership of a leasehold flat. Although Iftikhar Malik was its sole legal and beneficial owner, Vaqar Malik had occupied it since 1987 and later asserted title by adverse possession.

In 2012, when Iftikhar sought to lift a stay on earlier possession proceedings, Vaqar conveyed that no adverse possession claim would be made. The deputy High Court judge refused to lift the stay partly because Iftikhar could commence fresh proceedings without facing such a claim. Vaqar nevertheless pleaded adverse possession when Iftikhar sought possession in later proceedings.

HHJ Gerald held that advancing that defence was an abuse of process and ordered possession. Bacon J allowed Vaqar's appeal, holding that his earlier statements did not amount to an objectively clear and unequivocal representation, but lifted the stay in the earlier action and granted Iftikhar summary judgment: [2023] EWHC 59 (Ch). The central issue was whether the absence of an objectively unequivocal statement prevented an estoppel by conduct or abuse of process.

1. Iftikhar's appeal was allowed. The order of HHJ Gerald in the 2017 possession proceedings was restored. Vaqar's appeal concerning the stay on the 1987 proceedings, and the remaining adverse-possession issues, were rendered otiose or academic.

2. Per Zacaroli LJ, with whom Asplin and King LJJ agreed, the applicable doctrine was the broad, merits-based estoppel by conduct stated in LA Micro Group (UK) Ltd v LA Micro Group Inc [2021] EWCA Civ 1429. It could readily be regarded as a species of abuse of process. Its application was not constrained by the strict requirements governing promissory estoppel.

3. The essential questions were whether Vaqar had adopted clearly inconsistent positions and whether the earlier court had acted on the footing of the position he previously adopted. An objectively clear and unequivocal representation was not an additional requirement. Where a party intends to persuade a court that the party holds a particular position, succeeds in doing so, and later adopts the opposite position, the resulting risks of unfairness and damage to the administration of justice are sufficient to engage the doctrine.

4. HHJ Gerald was entitled to find that Vaqar intended to convey, and did convey, that he would not make an adverse-possession claim. He did so to discourage the deputy judge from lifting the stay. The deputy judge understood that position and acted upon it. It was enough that the position was a material factor in a decision involving the balance of several considerations; it need not have been the decisive or but-for cause.

5. The counterfactual result of the 2012 application could not reliably be reconstructed. It was impossible to determine how the deputy judge would have balanced the relevant matters if Vaqar had asserted an intention to rely on adverse possession.

6. A dishonest cause of action must be pleaded before a finding of dishonesty may be made. That rule does not prevent a trial judge from making unpleaded adverse findings about a witness's character or credibility. HHJ Gerald was entitled to consider Vaqar's conduct, purpose and live evidence when determining what he had communicated and whether his subsequent inconsistent position was abusive.

7. Applying the restrained appellate approach in Aldi Stores Ltd v WAP Group Plc [2007] EWCA Civ 1260, there was no basis for interfering with HHJ Gerald's evaluative judgment.

1. Court of Appeal (Civil Division): Iftikhar's appeal was allowed and HHJ Gerald's order in the 2017 proceedings was restored: [2024] EWCA Civ 1323. Vaqar's appeal concerning the stay on the 1987 action and the remaining issues were not determined because they had become otiose or academic.

2. High Court, Chancery Division: Bacon J allowed Vaqar's appeal from HHJ Gerald on abuse of process and adverse possession. She also lifted the stay on the 1987 action and granted Iftikhar summary judgment: [2023] EWHC 59 (Ch).

3. County Court at Central London: HHJ Gerald held on 14 March 2022 that Vaqar's adverse-possession claim was an abuse of process, granted Iftikhar possession and awarded mesne profits.