[2025] EWHC 2485 (Ch)

Iftikhar’s application of 24 January 2025 was mainly concerned to challenge jurisdiction, but, if that challenge failed, then there is an alternative application to strike out the claim or for reverse summary judgment on it. I have held that the jurisdiction challenge succeeds, but I will go on to consider the remainder of the application on the counterfactual basis that it fails. The 2019 English Partnership Claim concerns Vaqar’s claims to (i) the flat, and (ii) other assets.

As to the first of these claims, it is founded on allegations of a partnership (raised as long ago as 1987) between Vaqar, his parents and his siblings, which partnership is said to have funded the purchase of the flat for the benefit of Vaqar and which is accordingly held on trust for him. These allegations of partnership have not so far been tried in England, nor (so far as I know) anywhere else.

However that may be, the 2019 English Partnership Claim cannot now deal with Iftikhar’s right to possess the flat, the provenance of the money that was used to buy it, any claim that it was bought for Vaqar’s benefit, or that it is held on trust for him. These are issues which have been determined in the Possession Proceedings, and Vaqar is estopped from raising them against Iftikhar in the future. The kind of estoppel concerned is (a) cause of action estoppel in relation to Iftikhar’s right to possess the flat, and (b) issue estoppel in relation to the allegations that the flat was bought with family money for Vaqar’s benefit, and that Vaqar, rather than Iftikhar, is the beneficial owner: see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 60, [17], [22].

Vaqar has three arguments in relation to cause of action estoppel. First, he says that the cause of action is now different. In my judgment this is not so. The means by which the cause of action arises may be different, but the cause of action itself, that is, relying on a right to possess the flat, is exactly the same. It was up to Vaqar, when sued for possession, to raise the partnership argument as a reason why Iftikhar did not have the right to possess it: see Henderson v Henderson (1843) 3 Hare 100. But he did not do this. Instead, he pleaded that the flat had been bought for, and belonged beneficially to, him, or alternatively that he was entitled to it by adverse possession. Secondly, Vaqar says that the parties to the different proceedings are different. However, as long as Vaqar and Iftikhar were parties to the decision in question, it is irrelevant that other persons were also parties. The earlier decision is binding in the later case as between Vaqar and Iftikhar. Thirdly, Vaqar says that the partnership claim has not been determined. This is true, but irrelevant.

Vaqar’s claims to assets other than the flat are to (i) contractual rights arising before 2010, (ii) a share in the inheritance to his mother’s interest in the partnership, and (iii) a share in the inheritance to his father’s interest in the partnership. So far as (i) and (ii) are concerned, even if he had such rights, all such assets will have vested in Vaqar’s trustee in bankruptcy under the Insolvency Act 1986, section 306, when he was declared bankrupt in 2010. This means he no longer has any title to such assets and cannot sue in respect of them: see Heath v Tang [1993] 1 WLR 1421, 1423C, per Hoffmann LJ. Moreover, they did not revert to him on his discharge from bankruptcy: Re Oraki [2019] EWHC 1515 (Ch), [8].

So far as (iii) is concerned (and also (ii) if they had not vested in the trustee in bankruptcy) all such assets, even if under Pakistani law they would vest in heirs directly (for example under Sharia law), can be the subject of litigation in England only if there is a properly constituted personal representative of the deceased father before the English court. In Viegas v Cutrale [2025] 1 WLR 267, Newey LJ (with whom Lewis and Nugee LJJ agreed) said:

“141.

I agree with [the judge] that the heirs cannot pursue their claims in the absence of grants of representation in this jurisdiction and further consider that she was entitled to conclude that the appropriate course was to strike out such claims rather than giving the heirs a further opportunity to apply for letters of administration and to make applications under CPR 17.4(4).”

Accordingly, Vaqar has no title to make any claim in respect of (i) and (ii), and, even if he is an heir of his father under Pakistani law, has no grant of representation under English law, and therefore no standing to make any claim before the English court in respect of (ii) and (iii). The claims in respect of those assets are an abuse of process and must also be struck out.

It is also clear that the 2019 English Partnership Claim was effectively “warehoused”. In Asturion Foundation v Alibrahim [2020] 1 WLR 1627, Arnold LJ (with whom the Senior President of Tribunals and Leggatt LJ agreed) said:

“61.

In my judgment, the decisions in Grovit, Arbuthnot, Realkredit and Braunstein show that a unilateral decision by a claimant not to pursue its claim for a substantial period of time, while maintaining an intention to pursue it at a later juncture, may well constitute an abuse of process, but does not necessarily do so. It depends on the reason why the claimant decided to put the proceedings on hold, and on the strength of that reason, objectively considered, having regard to the length of the period in question. A claimant who wishes to obtain a stay of proceedings for a period of time should seek the defendant's consent or, failing that, apply to the court; but it is not the law that a failure to obtain the consent of the other party or the approval of the court to putting the claim on hold automatically renders the claimant's conduct abusive no matter how good its reason may be or the length of the delay.”

The 2019 Partnership Claim was launched by Vaqar at a time when he was defending the 2018 Possession Proceedings, and was intended to cover much the same issues. But it was then left in abeyance, rather than prosecuted, until Vaqar found it convenient to resuscitate it. I have no doubt, on the facts of the present case, that this warehousing of the 2019 English Partnership Claim was an abuse of the process fully justifying its being struck out.