[2025] EWHC 2485 (Ch)

The 2018 Possession Claim proceeded to trial in the county court. It was part-heard by HHJ Gerald in January 2020, but then adjourned and not resumed (because of the Coronavirus pandemic) until March 2022, when the trial was completed. HHJ Gerald delivered his judgment on 14 March 2022. As to the defence based on the trust claim, he held that

“67.

… there is insufficient evidence to find on a balance of probabilities that the money was in fact ‘family money’, whatever that somewhat inchoate phrase means …

68.

… Both counsel agreed that it was not necessary for me to determine the issue of whether or not there was a partnership as such went to credibility only, the key question being the source of the purchase monies, even though some of [counsel for Vaqar]'s cross-examination of Iftikhar was on the footing that there was a partnership without any evidence to properly put to him how and when it came about or when the various alleged partners joined it …

[ … ]

70.

In my judgment, Vaqar has failed to adduce credible evidence to rebut the presumption that Iftikhar is to be presumed to be the absolute beneficial owner of the flat.”

So the trust claim failed.

As to the defence based on the adverse possession claim, the judge held:

“100.

… in my judgment, it is an abuse of process and unfair for Vaqar to now seek to advance a case for adverse possession. In short, the 1987 proceedings stopped time running but became irrelevant once struck out which, amongst other things, was brought about or strongly influenced by Vakar's disavowal before the Deputy Judge (Footnote: ¹⁵) of an intention to bring any claim for adverse possession which has enabled Vaqar to bring the very claim for adverse possession which he previously said he would not. Not only does that amount to impermissible approbation and reprobation, but in my judgment it amounts to an abuse of process, being an afront to justice …

101.

Having determined that it is an abuse of process, it is not necessary for me to consider whether Vaqar has established title by adverse possession. However, for completion, I will briefly state why he has not.”

The judge then went on to give his reasons for that secondary conclusion as to why Vaqar had not established a title by adverse possession. I need not set them out here. So, in the judge’s view, Vaqar could not advance a case for adverse possession, because it would be an abuse of process, but, if he had been able to do so, in the judge’s view, it would anyway have failed on the merits. The judge’s order, dated 14 March 2022, included an order that Vaqar give up possession of the flat to Iftikhar.

That decision, being one of a judge sitting in the county court, was appealed to the High Court, but only on the adverse possession ground. No application was made for permission to appeal the decision on the trust ground, Vaqar being (according to his own skeleton argument) “constrained to accept that HHJ Gerald’s decision turned on the Judge’s assessment of the available evidence”. The appeal was heard by Bacon J, and judgment was given by her under neutral citation number [2023] EWHC 59 (Ch). I can take the further events of this litigation now from part of the decision of the Court of Appeal, given on 14 November 2024, on appeal and cross-appeal from the decision of Bacon J: see [2024] EWCA Civ 1323.

In the decision of that court, Zacaroli LJ, with whom King and Asplin LJJ agreed, said:

“25.

Bacon J allowed Vaqar’s appeal, but granted Iftikhar’s application, concluding (in brief summary) as follows:

(1)

Vaqar was not precluded, on the basis of abuse of process, from advancing an adverse possession defence to the 2017 Action;

(2)

The fact that Vaqar had asked Iftikhar to pay service charges on the flat did not demonstrate a lack of intention to possess the flat;

(3)

Iftikhar could not raise for the first time on appeal the contention that he had consented to Vaqar’s occupation. Not only had the point not been pleaded, it was contrary to the position of both parties at trial and, had it been raised at trial, it would have required new evidence and would have resulted in a different approach to the evidence being taken at trial;

(4)

For similar reasons, Iftikhar could not raise for the first time on appeal the contention that Vaqar had occupied the flat as the licensee of Bilal (as opposed to the contention that he purported to do so);

(5)

Although Iftikhar’s contention that Vaqar intended to occupy as Bilal’s licensee was one that he was entitled to take on appeal, it failed on the basis of the facts found by the judge;

(6)

Notwithstanding Iftikhar’s serious and substantial delay in applying to lift the stay on the 1987 Action, it was appropriate in all the circumstances to lift that stay; and

(7)

There being no defence to Iftikhar’s claim for possession in the 1987 Action, Iftikhar was entitled to summary judgment.”

So, despite the fact that Bacon J allowed Vaqar’s appeal, she nevertheless made a possession order. This was done on the basis that, although Vaqar’s adverse possession claim might be effective in relation to the 2018 Possession Claim, it was ineffective in relation to the 1987 Possession Action.

In the Court of Appeal, Zacaroli LJ considered the arguments of the parties, and concluded:

“89.

Having rejected the submissions based on specific alleged errors, I reject the unsupported contention that HHJ Gerald’s decision fell outside the broad ambit within which reasonable disagreement is possible. There is no basis, applying the test in the Aldi Stores case, for interfering with his evaluative judgment.

90.

For the above reasons, I would allow the appeal against Bacon J’s decision on the question of abuse of process, and restore the order made by HHJ Gerald in the 2017 Action. As noted above, that renders it either otiose or academic to address the remaining points raised on these combined appeals.”

The Court of Appeal declared that both the possession order made by HHJ Gerald, and that made by Bacon J, were valid and enforceable. They ordered Vaqar and his sons to give possession of the flat to Iftikhar, and ordered Vaqar to pay mesne profits to Iftikhar for the six years before the commencement of the 2018 Possession Claim, and up to the date of giving possession. The order provided that the date for giving up possession was 2 December 2024, but, if before then there was an application to the Supreme Court for permission to appeal, stayed until determination of that application or further order. Vaqar did make an application to the Supreme Court for permission to appeal, but permission was refused by that court on 26 February 2025.