Malik v Malik

This Court of Appeal decision concerns whether a defendant is precluded by estoppel by conduct/abuse of process from advancing a defence of adverse possession where, in earlier proceedings, the defendant gave the court an opposing account which the earlier judge relied upon. The court applied the principles in LA Micro Group (UK) Ltd v LA Micro Group Inc and New Hampshire v Maine to ask whether the party had adopted clearly inconsistent positions and whether the earlier court acted on the footing of the earlier position.

The judge at first instance (HHJ Gerald) found that, at a 2012 hearing before Mr Jarvis QC, Vaqar had told the court that he and his wife would not pursue an adverse possession claim and that he did so as part of a tactic to prevent the stay being lifted; that the deputy judge acted on that position; and that it was therefore an abuse of process for Vaqar to advance adverse possession in the 2017 proceedings. Bacon J allowed an appeal and held that an objectively unequivocal earlier statement was required; this Court disagreed and restored HHJ Gerald’s order, holding that an objectively unequivocal statement is not a necessary precondition and that the judge was entitled to conclude that Vaqar had acted so as to mislead the earlier court and that the earlier court had relied on that stance.

Background and nature of the dispute:

• The dispute concerns ownership of a two-bedroom flat purchased in 1978 and occupied by Vaqar from 1987. Iftikhar was held at trial to be the sole legal and beneficial owner; the remaining issue was whether Vaqar could establish title by adverse possession.

Procedural posture:

• Original proceedings were issued in 1987 and stayed. In 2012 Iftikhar applied to lift the stay; at that hearing Vaqar told Mr Jarvis QC that he and his wife would not pursue an adverse possession claim. The deputy judge refused to lift the stay in part because of that assurance.
• Later, in proceedings arising from the freeholder’s 2017 claim, Vaqar pleaded adverse possession as a defence. HHJ Gerald found it was an abuse of process for Vaqar to advance adverse possession in 2017 because of what he had told Mr Jarvis QC in 2012 and granted possession to Iftikhar. Bacon J allowed an appeal in part, concluding an objectively unequivocal earlier statement was required and lifting the bar.
• The Court of Appeal heard cross-appeals and was asked to determine whether the earlier conduct precluded Vaqar from asserting adverse possession.

Issues framed by the Court:

• Whether Vaqar’s earlier statements were inconsistent with his later reliance on adverse possession and whether those statements led the earlier judge to act on that footing.
• Whether an objectively clear and unequivocal earlier representation is a necessary precondition for estoppel by conduct/abuse of process.
• Whether HHJ Gerald’s factual and evaluative findings were open to him and whether Bacon J was correct to interfere.

Court’s reasoning and decision:

• The Court applied the LA Micro framework (and the New Hampshire factors) in a broad, merits‑based assessment rather than imposing strict formal requirements akin to promissory estoppel. It held there is no need for an objectively unequivocal formulation provided the earlier position was clearly inconsistent and the earlier court acted on that position.
• The Court found no error in HHJ Gerald’s factual findings that Vaqar had intended to convey to Mr Jarvis QC that he would not pursue adverse possession, that that stance was relied upon by the deputy judge, and that the stance formed a material reason for the decision. The judge’s adverse credibility findings were within the permissible ambit of evaluative judgment.
• Accordingly the Court allowed the appeal on the abuse point, restored HHJ Gerald’s order and did not consider the substantive merits of the adverse possession claim.

Appeal allowed. The Court held that estoppel by conduct/abuse of process is to be applied by a broad, merits-based assessment (per LA Micro and New Hampshire) and that an objectively unequivocal earlier statement is not a necessary precondition. HHJ Gerald was entitled to find that Vaqar had adopted clearly inconsistent positions in 2012 with the purpose and effect of persuading the deputy judge, that the deputy judge acted on that position, and that it was therefore an abuse of process to allow Vaqar to advance adverse possession in 2017. The Court restored HHJ Gerald’s order.

Appeal to the High Court (Chancery) from the County Court decision of HHJ Gerald, Central London (order dated 14 March 2022); appeal to the High Court (Chancery) heard by Bacon J ([2023] EWHC 59 (Ch), order dated 2 February 2023); further appeal to the Court of Appeal (Civ Div) (Case Nos CA-2023-000377, CA-2023-001911), hearing 16–17 October 2024, judgment [2024] EWCA Civ 1323 (04 November 2024).