Vaqar Malik v Bilal Ahmed Malik & Ors

Where a defendant disputes whether proceedings were served out of the jurisdiction, the question is a factual inquiry into whether service occurred. The claimant must show the better of the argument on the available material. The court may assess the reliability and provenance of the evidence, including hearsay and anomalies in delivery records.

Failure to comply with safeguards attaching to an ex parte order permitting service out may justify setting that order aside. A claim cannot proceed against a defendant who was not validly served before the claim form expired. A partnership claim may also be stayed on forum non conveniens grounds where another country has the most real and substantial connection, while issues already determined in possession proceedings may be barred by estoppel.

The judgment determined five applications in two long-running partnership claims concerning alleged family partnership rights in a London flat and other assets. Four applications concerned the 2019 English Partnership Claim. They addressed extensions of time, a challenge to jurisdiction, an application for a stay, and lifting any automatic stay. The fifth concerned lifting the automatic stay in the 1987 English Partnership Action.

The principal issue was whether Iftikhar had been validly served with the 2019 claim in Pakistan in August 2021. Further issues were whether any ex parte permission to serve out should be set aside, whether England was an appropriate forum, whether the claims were barred by estoppel or abuse of process, and whether Vaqar had standing to revive the 1987 action.

1. Outcome. Time was extended for Iftikhar to challenge jurisdiction, any automatic stay in the 2019 claim was lifted for that purpose, and the court declared that it had no jurisdiction over him. The application to stay the jurisdiction application fell away. The application to lift the stay in the 1987 action was dismissed. The partnership proceedings were effectively at an end.
2. Service. Whether service occurred after permission to serve out was a factual inquiry. The judge proceeded on the basis that Vaqar had to show the better of the argument on the available material. Iftikhar’s detailed first-hand evidence, supported by contemporaneous documents, was preferred to the solicitor’s third-hand evidence based on information relayed through Royal Mail. Identical signatures and delivery times for two addresses about 2 km apart were striking. Service was not established.
3. Ex parte safeguards. The failure to provide application notices, supporting evidence and orders connected with permission to serve out was a serious breach of the safeguards in CPR rule 23.9. If service had been proved, the permission to serve out would have been set aside under CPR rule 3.1(7) and CPR rule 11(6).
4. Forum. If jurisdiction had existed, the claim would nevertheless have been stayed. The alleged partnership was centred in Pakistan, most defendants and records were there, Pakistani law would probably govern, related proceedings were pending there, and no special circumstances showed that justice required an English trial.
5. Preclusion and abuse. The possession proceedings had determined Iftikhar’s right to possess the flat and the alleged beneficial ownership issues. Those matters could not be relitigated by cause of action estoppel or issue estoppel. Claims to other assets were barred by bankruptcy vesting, lack of a personal representative, and abuse of process. The 1987 action was improperly constituted, Vaqar lacked standing, and nearly 40 years of inactivity meant that lifting the stay would provide no benefit.