[2025] EWHC 2485 (Ch)

For the purposes of deciding these applications, and on the basis of the material before me, first of all, I take the initial facts from the judgment of HHJ Gerald in his judgment delivered on 14 March 2022, to which I have added in footnotes a few additional comments derived from the papers before me:

“1.

On 06.12.78 Iftikhar Ahmad Malik, the Part 20 Claimant, (Footnote: ¹) completed the purchase and was granted the long lease of the two bedroomed flat at 7, South Lodge Flats, 245 Knightsbridge, London SW7 1DG (‘the flat’) which he had bought off-plan on a visit to London from Pakistan, where he lived, and exchanged contracts on 28.03.77, paying the £7,250 deposit of the £72,500 purchase price which was later negotiated down to £70,250. On 28.09.84, at a time when no family member was living at the flat as their home, the lease was extended to 999 years on payment of £1,758.49 (‘the lease’).

2.

Completion, and dealing with the conveyancing solicitors Mr Scott-Tucker of Stilgoes, was handled by Iftikhar's younger brother Vaqar, one of the Part 20 Defendants, who had moved from Pakistan to London to run the family businesses' new company Superpink Limited in around November 1978 or thereabouts. That was a relatively short-lived venture, as it was folded in 1985, a few years after Vaqar had been ‘recalled’ to Pakistan in September 1982.

3.

After completion of some decorations, Vaqar lived at the flat as his home from May 1979 until returning to Pakistan in December 1981 to get married, then coming back to live in the flat with his new wife Saira in January 1982 until they returned to Pakistan in September 1982 where they rented accommodation until Vaqar returned to London in January 1987 followed by his wife and by then two children.

4.

Whilst living at the flat as a bachelor, various family members would stay from time, including Iftikhar's wife and son who stayed at the flat from 1979 to 1981 for either two terms or two academic years whilst their son was having medical treatment. From September 1982 to January 1987, when no-one was living at the flat, Iftikhar and Vaqar and their respective families living in Pakistan, they and and various other family members would use the flat when visiting in London, the keys being kept with the porter.

5.

On 06.01.87, following a major breakdown in relations with his family, Vaqar returned to London and took up residence in the flat without his parents' or brothers' knowledge (apart, possibly, from brother Sarfraz). Father Bilal Malik stayed at the flat for a short period from the end of January, no doubt to try and sort differences out. Vaqar was joined by his wife and children in February. On Friday 26.06.87 Vaqar refused to allow his mother Taj, Iftikhar, Sarfraz, sister Asya and various others in to the flat since when, it is common ground, no-one other than Vaqar’s immediate family has been in occupation.

6.

Litigation in England and Pakistan ensued. On 03.07.87, Iftikhar as registered absolute owner issued proceedings against Vaqar and his then wife Saira in the High Court in London seeking possession, (Footnote: ²) and secured an interlocutory injunction (Footnote: ³) requiring access which, for practical purposes, was not complied with and was successfully appealed. (Footnote: ⁴) On 28.07.87, Vaqar issued proceedings in the High Court in London (Footnote: ⁵) principally against his father, mother and three brothers by seniority Iftikhar, Sarfraz and Ilyas allegedly as partners claiming that the flat was owned by the partnership and he was entitled to the flat being allocated to him as his share of the partnership and live there, any notion of a partnership being hotly denied. The day before, on 27.07.87, Vaqar had issued proceedings in Pakistan (Footnote: ⁶) seeking an injunction restraining interference with his occupation of the flat as being an asset of the partnership. (Footnote: ⁷)

7.

Neither English action was pursued. Iftikhar's action was stayed until payment by him of £25,000 into court on security for costs by 11.12.87 order of Master Munrow which was not complied with until 11.02.11, some 23 years later. Both actions were stayed automatically under the new CPR as of 25.04.00. During that period, there was an agreement that the English actions be stayed pending resolution of proceedings which had been issued by Vaqar in Pakistan (July 1988 to October 1991) (Footnote: ⁸) and, thereafter, whilst there were unfruitful attempts were made within the family to resolve matters which, upon breakdown, led to Iftikhar applying to lift the stays on 16.03.11. (Footnote: ⁹)

8.

On 16.02.12, Mr John Jarvis QC sitting as a Deputy High Court Judge, refused to grant that application. (Footnote: ¹⁰) Vaqar was present throughout the hearing, but any interest he had in the flat was then vested in his trustee in bankruptcy he having been bankrupted on 01.04.10 (Footnote: ¹¹) who was represented by counsel as was Iftikhar. During the course of that hearing, Vaqar stated that he would not be pursuing any claim for adverse possession of the flat, he and his wife Saira having lodged such application with HMLR on 20.07.00 which he withdrew on 27.02.01 as HMLR stated that it needed resolution by court. Any rights Vaqar may have had, or has, to the flat automatically re-vested in him on 01.04.13 under section 238A(2) Insolvency Act 1986, his trustee not having pursued any claim to any interest in the flat by adverse possession or otherwise.

9.

And so it was that on 17.04.18, Iftikhar as absolute owner, issued this Part 20 Claim (Footnote: ¹²) against Vaqar and his two children Fahim and Rahim by his second wife seeking possession and mesne profits. (Footnote: ¹³) By his Part 20 Defence and Counterclaim, Vaqar claims that Iftikhar held the flat on trust for him on and from the date of completion, 06.12.78, and in the alternative that he has been in adverse possession since 03.07.87 as pleaded but equally could be 26.06.87 being the date when he asserted physical possession. Neither of his sons make any claim independent of their father. It is Iftikhar's position that it is an abuse of process for Vaqar to claim having disavowed adverse possession before the Deputy Judge (Footnote: ¹⁴) back in 2012, but that if the adverse possession claim succeeds (which is denied) he should be reimbursed service charge and rental payments he has made. In contrast to his 1987 action, Vaqar does not sue any of his alleged fellow partners, or their representatives; nor has anyone sought to serve notice on them to ensure they are all bound by the outcome of this case.”

In addition to filing their defence and counterclaim, Vaqar and his sons applied to strike out the possession claim against them, or to obtain reverse summary judgment on it. But that application was dismissed by HHJ Gerald on 13 February 2019. The dismissal was appealed to Falk J. She refused the appeal on 21 June 2019 (see [2019] EWHC 1843 (Ch)). Vaqar and his sons then applied for permission for a second appeal, but the application was dismissed by Lewison LJ on 7 October 2019.

In the meantime, on 12 September 2019, Vaqar issued a claim in Pakistan (called a “Plaint”) against his siblings and other family entities in relation to the inheritance of his father’s estate. I note in passing that paragraph 6 of the Plaint says in part that

“The cause of action firstly arose in favour of plaintiff and against the defendants in May 2014, when the father of the plaintiff died, who was the real owner of the properties and the business fully mentioned in the Plaint …”

The flat (and other properties in England) are among the properties mentioned in the Plaint.

Then, just a month later, on 11 October 2019, Vaqar also issued a further partnership claim, in the (English) High Court, dealing with the partnership alleged by Vaqar to subsist between the members of the family (“the 2019 English Partnership Claim”). It overlaps with issues arising in the 2018 Possession Claim in the county court. But it is also inconsistent with the inheritance claim made in Pakistan begun a month earlier. This can be seen from the prayer to the later claim, which reads in part as follows:

“AND THE CLAIMANT CLAIMS:

(1)

A Declaration that the Flat is and was at all material times an asset of the Partnership and is held on trust by the Third Defendant [Ilyas] for the Partnership and subject to the beneficial interest of the Claimant in the flat.

(2)

A Declaration that at all material times the Flat was purchased by the Partnership and appropriated to the Claimant as part of his share in the Partnership assets.

(3)

A Declaration that First Defendant [Iftikhar] is not entitled to claim ownership or possession of the flat as the flat is held by the first Defendant as a trustee for the Claimant.”

(I add that it seems likely that the reference in paragraph (1) of the prayer to the third defendant, Ilyas, was a mistake for the first defendant, Iftikhar.)

On 14 October 2019 and 4 December 2019, Vaqar applied for the transfer of the 2018 Possession Claim from the county court to the High Court, so that it could be tried alongside the 2019 English Partnership Claim. Zacaroli J dismissed the applications on 18 December 2019: see [2019] EWHC 3530 (Ch). In his judgment, he noted that the

“new High Court proceedings … make essentially the same claims in relation to the Flat as are contained in Vaqar's pleading in the County Court proceedings.”

The court having dismissed Vaqar’s application, the 2019 English Partnership Claim was not tried with the 2018 Possession Claim. I will come back to subsequent events in that claim later.