Malik and another v Malik

Landlord and tenant – Adverse possession – Abuse of process –  Family dispute concerning ownership of leasehold flat – Respondent seeking possession of flat occupied by first appellant – County court ruling in favour of respondent – Appellants appealing – Whether adverse possession claim abuse of process – Whether appellants establishing intention to possess where service charges paid by respondent – Whether appropriate to lift stay of respondent’s earlier possession proceedings – Appeal allowed The respondent sought possession of a two-bedroom flat at 7 South Lodge, 245 Knightsbridge, London from the appellants. The flat had been purchased in 1978 for £70,250, on a 150-year lease. In 1984, the lease was extended to 999 years. The lease was in the name of the respondent but, in 1987, his brother (the first appellant) locked the respondent out of the flat, claiming that he was entitled to reside there. The first appellant claimed that the flat had been purchased by a family partnership and that it had been allocated to him as part of his share in the partnership. The first appellant asked the respondent to pay the service charges due under the lease which he did. However, the first appellant remained in sole physical control of the flat thereafter. In 1987, the respondent brought an action for possession of the flat which was later stayed. In 2012, the respondent’s application for the stay to be lifted was refused. In 2018, he commenced a new possession claim. The first appellant counter-claimed arguing, amongst other things, that he had acquired title by adverse possession. The county court held that the first appellant could not rely on adverse possession because he had told the court at the 2012 hearing that there would be no adverse possession defence if a new claim was commenced. In any event, the first appellant had no intention to possess because of his request that the respondent pay the service charges. The counterclaim was dismissed as an abuse of process and for lack of necessary intent. The appellants appealed. Held: The appeal was allowed. (1) Where a party to litigation had obtained a judgment or order on the basis of a particular position taken in the litigation, the court had the power to prevent that party from resiling from that position where that would cause injustice to the other party and undermine the integrity of the judicial process: LA Micro Group (UK) v LA Micro Group [2021] EWCA Civ 1429; [2022] 1 WLR 336 considered. In so far as a finding of abuse of process rested on balancing numerous different factors, an appellate court would only interfere where the judge had taken into account immaterial factors, omitted to take account of material factors, erred in principle or reached a conclusion that was impermissible or not open to them on the evidence. An appellate court would also not interfere with a trial judge’s conclusions on primary facts unless it was satisfied that the judge was plainly wrong: Aldi v WSP Group [2007] EWCA Civ 1260; [2007] PLSCS 244; [2008] 1 WLR 748 and Volpi v Volpi [2022] EWCA Civ 464; [2022] PLSCS 65 considered. (2) In the present case, the judge’s decision on abuse of process was not on its face based on a balancing exercise. However, it included findings of facts based on the material before the judge, including oral evidence of the witnesses at the trial. To that extent, the court should be slow to interfere. The abuse of process appeal did not stray impermissibly into a challenge to the primary facts found by the judge, or any balancing exercise conducted by him. It was evident from the 2012 judgment that the questions of whether the respondent would be able to bring a new claim, and whether such a claim would be defeated by the defence of adverse possession, were important factors in the judge’s decision not to lift the stay. However, the transcript of that judgment did not disclose any clear representation by the appellants that they would not in future proceedings advance a defence of adverse possession. The county court was therefore wrong to find that the first appellant had disavowed an intention to claim adverse possession in any new proceedings, so as to make it an abuse of process for the point to be advanced in the present proceedings. Accordingly, the appeal would be allowed on the abuse of process point. (3) To establish adverse possession, there had to be: a sufficient degree of physical custody and control (factual possession); and an intention to exercise custody and control on one’s own behalf and for one’s own benefit (an intention to possess). An intention was required, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title, so far as was reasonably practicable and so far as the processes of the law would allow: Powell v McFarlane (1977) 38 P&CR 452 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] PLSCS 163;[2003] 1 AC 419 considered. An intention to possess did not require an intention to own. If payment of the service charge was not a necessary incident of possession, an intention to possess likewise could not require the payment of the service charge. The facts of the present case supported that analysis: Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459 distinguished. The judge’s conclusion that possession of leasehold premises carried with it acceptance of the responsibility to pay the service charge; and the first appellant’s request to the respondent to pay the service charges demonstrated a lack of intent to possess the flat. The appeal would be allowed in respect of the judge’s substantive conclusion as to the intention to possess. (4) While there had been an unusually lengthy delay in applying to lift the stay of the 1987 proceedings, the blame for that delay was not to be ascribed solely or even predominantly to the respondent. Unless the stay was lifted, the respondent would be deprived of a valuable property which the first appellant wrongfully possessed and occupied from 1987 onwards, and which the first appellant and his family had enjoyed rent-free since then. It was appropriate to lift the stay of the respondent’s 1987 proceedings, and give judgment for the respondent in those proceedings. As that action had been started before the expiry of the limitation period, there could be no adverse possession defence in that action. Stephen Jourdan KC (instructed by Spencer West LLP) appeared for the appellants; Thomas Munby KC and James Kinman (instructed by Stephenson Harwood LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Malik and another v Malik