Change of position over claim for adverse possession is an abuse of process

Whether a person is estopped from advancing a position in one case where they have advanced the opposite in an earlier one requires a broad, merits-based assessment. The court has considered this principle in Malik v Malik [2024] EWCA Civ 1323. The case concerned a dispute between two brothers over the ownership of a flat in Knightsbridge, London. Iftikhar Malik purchased the flat in 1978. Vaqar Malik claimed an interest in the flat by adverse possession, having lived in it from 1987 onwards following a breakdown in family relations. Two sets of proceedings were brought in 1987: Iftikhar’s claim for possession of the flat and Vaqar’s claim that there was a family partnership, that the flat was partnership property and that he was entitled to occupy it on that basis. The claims were not pursued while attempts were made to resolve them over many years. In 2012, Iftikhar sought unsuccessfully to lift the automatic stay imposed on the possession claim following implementation of the CPR. At the hearing, Vaqar’s statement that he would not make a claim in adverse possession because he partly owned the flat strongly influenced the court’s decision. However, in 2017, following proceedings by the freeholder of the flat for access to a leak into the premises below, Vaqar re-asserted a claim to title through adverse possession since 1987. At the trial of the claim in 2022, the judge concluded that Iftikhar was sole legal and beneficial owner of the flat and it was an abuse of process for Vaqar to advance a claim in adverse possession having disavowed making any such claim before the judge in 2012. Vaqar succeeded on appeal in overturning the abuse-of-process decision but the Court of Appeal reversed that decision and reinstated the trial judge’s order. Estoppel by conduct requires consideration of whether the earlier decision was obtained because of the stance taken by the party in the earlier proceedings. Failing that, while a change of position affects credibility, there will not be an impression that one or other court was misled into giving its decision, risking bringing the administration of justice into disrepute LA Micro Group (UK) Ltd v LA Micro Group Inc [2021] EWCA Civ 1429. The judge was entitled to conclude that Vaqar had adopted clearly inconsistent positions based on his finding that Vaqar had intended to convey to the judge at the 2012 hearing that he would not make a claim in adverse possession as part of a strategy to dissuade the court from lifting the stay in the 1987 action. Louise Clark is a property law consultant and mediator