“1. On 06.12.78 Iftikhar Ahmad Malik, the Part 20 Claimant, The Part 20 claim is explained further below. 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, Action CH 1987 M No 6199, referred to as “the 1987 Possession Action”. and secured an interlocutory injunction From Sir Neil Lawsonon9 July 1987 . requiring access which, for practical purposes, was not complied with and was successfully appealed. On5 August 1987 , to the Court of Appeal, comprising Fox and Parker LJJ. On 28.07.87, Vaqar issued proceedings in the High Court in London Action CH1987 M No 4627, referred to as “the 1987 English Partnership Action”. 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 This is the “1987 Pakistani Partnership Action”, referred to above at [3]. Amongst other things, it sought an order for the winding-up of the alleged partnership. seeking an injunction restraining interference with his occupation of the flat as being an asset of the partnership. The injunction was granted, but discharged on30 April 1988 . 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) As noted above at [3], this action was struck out in 1988, the strike-out appealed, and then withdrawn by Vaqar in 1999. 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. These were applications within both the 1987 Possession Action and the 1987 English Partnership Action. 8. On 16.02.12, Mr John Jarvis QC sitting as a Deputy High Court Judge, refused to grant that application. See[2012] EWHC 711 (Ch) . 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 In submissions, Vaqar told me that he had been discharged from bankruptcy in October 2012. 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 undersection 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 It was a Part 20 claim, because on17 November 2017 , the freehold owner of the block in which the flat is situated brought a claim in the county court against Iftikhar, Vaqar and Vaqar’s sons for an injunction to enable it to investigate a leak. Iftikhar issued the Part 20 claim against Vaqar and his sons to recover possession and for mesne profits (originally 1987.M No 3054, but renumbered on transfer to the Chancery Division). against Vaqar and his two children Fahim and Rahim by his second wife seeking possession and mesne profits. Referred to as “the 2018 Possession Claim”
“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 That is, Mr John Jarvis QC, in February 2012. 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.”
“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.”
“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.”
“9. Unfortunately, there was then a significant breakdown in the relationship between the Claimant and the counsel he had instructed and they were dis-instructed by him. I understand this to have been in December 2019.”
“14. On2 December 2024 , during the course of without prejudice correspondence relating to the 2018 Possession Action, Vaqar's solicitors (‘Spencer West’) told Iftikhar's solicitors (‘Stephenson Harwood’) that Vaqar had served the 2019 Partnership Action at No. 11C, Shami Road, on27 August 2021 . On5 December 2024 , Spencer West provided Iftikhar with a copy of an order by Deputy Master Bowles dated14 April 2022 , by which the Deputy Master had retrospectively extended the validity of the Claim Form in the 2019 Partnership Action to28 August 2021 . This was the first time that Iftikhar or his legal representatives became aware of that order.”
“(5) Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ in Walker v Wilsher, 23 QBD 335, 338 noted this exception but regarded it as limited to ‘the fact that such letters have been written and the dates at which they were written.’ But, occasionally, fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.”
“1. As made clear from the application, neither we nor our client have copies of the evidence and written submissions which have been relied upon by your client at the various ex parte applications seeking, inter alia, permission to serve the claim form out of the jurisdiction and various extensions of time for service, including the retrospective extension. Please provide the full complement of these documents. 2. Similarly, we do not have copies of any orders made pursuant to those ex parte applications, save the order of Deputy Master Bowles dated14 April 2022 . Please provide copies. We should be grateful if, in respect of each order, you would provide a statement of when each order was served (and at what address) and provide evidence to support those assertions. 3. Finally, we do not have a copy of the particulars of claim relating to claim BL-2019-001900. Please provide a copy.”
“(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any supporting evidence must, unless the court orders otherwise, be served with the order on any party or other person – (a) against whom the order was made; and (b) against whom the order was sought.” (a) against whom the order was made; and (b) against whom the order was sought.”
“It is the duty of counsel and solicitors, when they make an ex parte application for relief (and most particularly freezing injunctions) to make in the course of the hearing a full note of the hearing, or, if this is not possible, to prepare a full note as soon as practicable after the hearing is over, and to provide a copy of that note with all expedition to all parties affected by the grant of relief on that ex parte application. This is essential so that the parties affected may know exactly what occurred and the basis and material on which the order was made, and so that in this way they may be provided with the material to make an informed application for discharge.”
“21. The purpose of these rules is to ensure that the defendant must know if it is not present at the hearing what case it has to meet. There should therefore be a full note … ”
“Regarding your request for additional documents, my position is that you are not entitled to them. Your client has been aware of these proceedings for the past five years and has had ample opportunity to address these matters comprehensively.”
“(1) A defendant who wishes to – (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have. (2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10. (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction. (4) An application under this rule must – (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (5) If the defendant – (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including – (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings.” (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings.”
“4. Iftikhar has been aware of the proceedings under BL-2019-001900 since 2019. The Claimant obtained an order for out-of-jurisdiction service on28 September 2020 , pursuant toCPR Part 6 , from Deputy Master Hansen, permitting service on Iftikhar at 11C Shami Road, Lahore Cantonment, Pakistan. 5. The relevant documents were posted on29 July 2021 by the Foreign Process Section and successfully served on27 August 2021 , as confirmed in the Fourth Witness Statement of Prakash Patel. This service was executed in compliance with the court’s directions, and proof of delivery has been filed with the court.”
“13. We have since received confirmation that the documents were delivered to the First and Second Defendants on27 August 2021 . I refer to the proof of delivery and post receipt, as well as the application notices that set out the relevant addresses for the Defendants at pages 3 to 9 of PP4. I also refer to my trainee solicitor’s, Sophie Angus, recent email to the Foreign Process Section on7 April 2022 providing proof of delivery and thereby discharging the undertakings provided to the Foreign Process Section (PP4 page 10).”
“15. I am told by Iftikhar that he has not received the 2019 Partnership Action at No. 11C, Shami Road. He does not accept that it was posted to that address, or that he has been served … ”
“37. However, the present case does not arise in the context of an application to serve a party out of the jurisdiction, but is a simple question of whether personal service was effected in the jurisdiction under domestic rules of service.”
“This skeleton is served in respect of D2-4’s application by notice dated14 October 2019 with claim number BL-2019-001921 only. Mr Iftikhar Malik has not been served with the High Court Proceedings with claim number BL-2019-001900, nor D2-4’s application by notice dated4 December 2019 in those proceedings, and has not instructed any lawyers to act on his behalf or to accept service of them. Mr Iftikhar Malik reserves the right to challenge the jurisdiction of the English Court to hear or determine the proceedings numbered BL-2019-001900 if and when he is served with them.”
“29. The court will grant a reasonable extension if it does not impact on hearing dates or otherwise disrupt proceedings: see Vneshprombank LLC v Georgy Bedzhamov[2019] EWHC 1430 (Ch) , citing Hallam Estates v Baker (2014) 4 Costs LR at 26.”
“49. The forum conveniens principles set out in the well-known judgment of Lord Goff in Spiliada Maritime Corp v Cansulex (The Spiliada)[1987] AC 460 apply both to the question of whether to permit service outside the jurisdiction in relation to service-out defendants, and whether to decline jurisdiction in relation to service-in defendants. Those principles have been the subject of considerable further commentary in more recent case-law. For present purposes the relevant principles can be summarised as follows: i) In service-in cases, the burden is on the defendant to show that England and Wales is not the natural or appropriate forum for the trial, and that there is another available forum which is clearly or distinctly more appropriate, or which in other words is the "natural forum" for the trial of the action. If the court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country: Spiliada pp. 476–478. ii) In service-out cases, the burden is on the claimant to show that England and Wales is clearly or distinctly the most appropriate forum. It is not sufficient to show that it is one of several equally suitable available fora: Gulfvin Investment v Tahrir Petrochemicals[2022] EWHC 1040 (Comm) ,[2022] 4 WLR 66 , §§18–22. iii) Where there are multiple defendants, some of which have been served without the need for permission and some with permission, the court is in essence looking for a single jurisdiction in which the claims against all the defendants may, as a whole, most suitably be tried: Lungowe v Vedanta Resources[2019] UKSC 20 ,[2020] AC 1045 , §68; Mercedes-Benz v Continental Teves[2023] EWHC 1143 (Comm) ,[2023] 5 CMLR 21 , §22. iv) In seeking to establish the appropriate forum for the litigation, the court should consider the forum with which the action has ‘the most real and substantial connection’: Spiliada p. 478; Lungowe §66. v) Relevant factors will include the location of witnesses and documents, and their language, consideration of the places where the parties reside or carry on business, the place where the wrongful act or omission occurred, and the place where the harm occurred: Spiliada p. 478; Lungowe §66. vi) It is generally preferable, other things being equal, that a case should be tried in the country whose law applies. That factor carries particular force if issues of law are likely to be important and there is evidence of relevant differences in the legal principles between the different competing fora: VTB Capital v Nutritek,[2013] UKSC 5 , §46. [ … ] ix) In considering whether there are special circumstances requiring a stay not to be granted notwithstanding the conclusion that another forum is prima facie more appropriate, one factor may be cogent evidence establishing that the claimant will not obtain justice in the foreign jurisdiction: Spiliada p. 478. x) Procedural differences such as differences in disclosure rules in different jurisdictions are, however, generally not reasons making it unjust to stay proceedings in this jurisdiction: Spiliada pp. 482–483. xi) If a claimant would be out of time in the foreign jurisdiction, and did not act unreasonably by failing to issue protective proceedings in that forum, that does not render the foreign jurisdiction "unavailable", but may be a reason why it would be unjust to stay the domestic proceedings. It will be relevant to consider the claimant's awareness of the time-bar and the explanation for its failure to issue protective proceedings: see Spiliada pp. 483–484; Citi-March v Neptune Orient Lines[1996] 1 WLR 1367 , p. 1374. If the claimant has acted reasonably in commencing proceedings in England and Wales, and in allowing time to expire in the relevant foreign jurisdiction, a stay (or set-aside of service) should only be granted on terms the defendant waives the time-bar in the foreign jurisdiction, assuming it can do so: Baghlaf Al Safer v Pakistan National Shipping [1998] CLC 716, p. 727; and see also Spiliada p. 484.” i) In service-in cases, the burden is on the defendant to show that England and Wales is not the natural or appropriate forum for the trial, and that there is another available forum which is clearly or distinctly more appropriate, or which in other words is the "natural forum" for the trial of the action. If the court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country: Spiliada pp. 476–478. ii) In service-out cases, the burden is on the claimant to show that England and Wales is clearly or distinctly the most appropriate forum. It is not sufficient to show that it is one of several equally suitable available fora: Gulfvin Investment v Tahrir Petrochemicals[2022] EWHC 1040 (Comm) ,[2022] 4 WLR 66 , §§18–22. iii) Where there are multiple defendants, some of which have been served without the need for permission and some with permission, the court is in essence looking for a single jurisdiction in which the claims against all the defendants may, as a whole, most suitably be tried: Lungowe v Vedanta Resources[2019] UKSC 20 ,[2020] AC 1045 , §68; Mercedes-Benz v Continental Teves[2023] EWHC 1143 (Comm) ,[2023] 5 CMLR 21 , §22. iv) In seeking to establish the appropriate forum for the litigation, the court should consider the forum with which the action has ‘the most real and substantial connection’: Spiliada p. 478; Lungowe §66. v) Relevant factors will include the location of witnesses and documents, and their language, consideration of the places where the parties reside or carry on business, the place where the wrongful act or omission occurred, and the place where the harm occurred: Spiliada p. 478; Lungowe §66. vi) It is generally preferable, other things being equal, that a case should be tried in the country whose law applies. That factor carries particular force if issues of law are likely to be important and there is evidence of relevant differences in the legal principles between the different competing fora: VTB Capital v Nutritek,[2013] UKSC 5 , §46. [ … ] ix) In considering whether there are special circumstances requiring a stay not to be granted notwithstanding the conclusion that another forum is prima facie more appropriate, one factor may be cogent evidence establishing that the claimant will not obtain justice in the foreign jurisdiction: Spiliada p. 478. x) Procedural differences such as differences in disclosure rules in different jurisdictions are, however, generally not reasons making it unjust to stay proceedings in this jurisdiction: Spiliada pp. 482–483. xi) If a claimant would be out of time in the foreign jurisdiction, and did not act unreasonably by failing to issue protective proceedings in that forum, that does not render the foreign jurisdiction "unavailable", but may be a reason why it would be unjust to stay the domestic proceedings. It will be relevant to consider the claimant's awareness of the time-bar and the explanation for its failure to issue protective proceedings: see Spiliada pp. 483–484; Citi-March v Neptune Orient Lines[1996] 1 WLR 1367 , p. 1374. If the claimant has acted reasonably in commencing proceedings in England and Wales, and in allowing time to expire in the relevant foreign jurisdiction, a stay (or set-aside of service) should only be granted on terms the defendant waives the time-bar in the foreign jurisdiction, assuming it can do so: Baghlaf Al Safer v Pakistan National Shipping [1998] CLC 716, p. 727; and see also Spiliada p. 484.”
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”
“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 underCPR 17.4 (4).”
“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.”