Factual and Procedural Background
This summary concerns a rolled-up hearing of an application for permission to appeal and, if granted, an appeal against a decision of Judge Gerald in the Central London County Court. The dispute is a long-running familial conflict regarding ownership of a valuable long leasehold flat in Central London.
The dispute arose from a Part 20 claim for possession brought by the registered leaseholder of the flat ("Plaintiff") against his brother ("Defendant") and two other family members (Defendant's sons). The claim followed proceedings initiated by the freehold owner ("Company A") seeking access to investigate a leak, with Company A playing no part in the Part 20 claim.
The Plaintiff claimed possession as the legal and beneficial owner, asserting the Defendants were trespassers, and alternatively sought reimbursement of sums paid under the lease if the flat was held on trust. The Defendants filed a defence and applied to strike out the claim as an abuse of process, arguing the Plaintiff was re-litigating a dormant dispute. They also contended that the Plaintiff held the flat on trust for the Defendant, or was estopped from denying this, or that the Defendant had been in adverse possession for over 12 years before relevant legislative provisions came into force, entitling him to be registered as proprietor.
Historically, the Plaintiff sought possession in 1987, but the claim was stayed due to failure to pay security for costs. The stay remained until 2011 when the Plaintiff paid the security late and applied to lift the stay, which was refused by a High Court judge in 2012. The Defendants argued the current claim was a revival of stale proceedings and should be struck out.
The Plaintiff countered by highlighting inconsistencies in the Defendant's positions over time, including prior claims of family partnership ownership and statements made to the court regarding adverse possession claims. The adverse possession claim was disputed on the basis that the Defendant occupied as a licensee, and the Plaintiff applied to strike out parts of the defence alleging adverse possession as an abuse of process.
Judge Gerald dismissed the strike out and summary dismissal applications, requiring costs on an indemnity basis and making case management directions. Permission to appeal was refused, except for the summary dismissal refusal, which is the subject of the current appeal.
Legal Issues Presented
- Whether the judge erred in law in relation to the adverse possession defence.
- Whether the Defendant lost the right to rely on adverse possession due to abuse of process.
- Whether there are compelling reasons for the matter to proceed to trial despite the summary judgment application.
Arguments of the Parties
Appellants' Arguments
- The judge erred by relying on an allegation that the Defendant was a licensee, arguing that even if true, adverse possession existed as a matter of law.
- The Defendant had exclusive possession for at least 12 years from 1987, and the Plaintiff did not contend otherwise.
- The Defendant’s belief about the basis of occupation was irrelevant to adverse possession.
- The judge misunderstood the effect of key precedent cases including JA Pye Oxford v Graham, Ofulue v Bossert, and Alston and Sons v BOCM Pauls Limited.
- There was no abuse of process because the Defendant’s previous statements were mistaken legal opinions and did not prevent inconsistent positions in fresh proceedings.
Respondent's Arguments
- There is an arguable defence to adverse possession based on the Defendant’s occupation by permission of a third party, negating the necessary intention to possess adversely.
- Whether the Defendant had the required mental state to possess adversely is a factual issue unsuitable for summary determination.
- The Defendant was estopped from relying on adverse possession due to prior statements made in 2012.
- The adverse possession claim and abuse of process issues require full trial investigation of facts, including the interpretation of a 1992 family agreement and relevant foreign law.
- There are compelling reasons for the possession claim to proceed to trial, as many factual and legal issues remain unresolved.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| JA Pye Oxford v Graham [2003] 1 AC 419 |
Established the twin tests for adverse possession: factual possession and intention to possess. |
The court applied the test emphasizing the need to assess the Defendant’s intention during the relevant period, not just physical possession. |
| Ofulue v Bossert [2009] 1 AC 900 |
Clarified aspects of adverse possession and its requirements. |
The appellants argued the judge failed to consider this case properly; the court noted its relevance but emphasized factual inquiry. |
| Alston and Sons v BOCM Pauls Limited [2008] EWHC 3310 (Ch) |
Held that a belief about occupation by permission does not necessarily negate adverse possession. |
The court preferred this later authority but found it not determinative without full factual inquiry. |
| Michael Wilson & Partners v Sinclair [2017] EWCA 3 |
Principles governing abuse of process: unfairness and bringing administration of justice into disrepute. |
The court applied a broad, merits-based approach to determine whether abuse of process occurred. |
| Bradford & Bingley v Seddon [1999] 1 WLR 1482 |
Inconsistent allegations alone do not constitute abuse of process. |
The court emphasized the need for a fact-sensitive evaluation rather than a strict bar on inconsistent positions. |
| Tilling v Whiteman [1980] AC 1 |
Preliminary points of law may be unreliable shortcuts to final determination. |
The court cited this to support the view that complex issues should be decided on full evidence at trial. |
| Iliffe v Feltham Construction [2015] EWCA (Civ) 715 |
Compelling reasons may justify trial despite summary judgment tests being met. |
The court used this authority to support the decision to proceed to trial given overlapping factual issues. |
| Easyair Ltd v Opel Telecom Ltd [2009] EWHC 339 (Ch) |
Defines the test for summary judgment: no real prospect of success and no compelling reason for trial. |
The court applied this test and found that the summary dismissal was not appropriate. |
| Swayne v Hillman [2001] 1 All ER 91 |
Summary judgment is not suitable for complex questions of fact or law. |
The court reiterated that a mini-trial is inappropriate at the summary judgment stage. |
Court's Reasoning and Analysis
The court acknowledged the complexity and factual uncertainty surrounding the adverse possession claim. It emphasized that the test for adverse possession requires both factual possession and an intention to possess on one's own behalf, excluding others, including the paper owner.
The court found that the Defendant's occupation history was unclear, with varying claims of ownership and licensee status, and that a 1992 family agreement might indicate occupation by permission of a third party (the father), which would negate adverse possession.
The court noted that the Defendant's mental state during the relevant period (1987–2003) was crucial and that this could not be determined without a full trial. It rejected the appellants' argument that the issue was not triable because only a "purported" licence was pleaded, emphasizing that the trial judge must evaluate all evidence.
Regarding abuse of process, the court explained that inconsistent positions do not automatically constitute abuse. The 2012 decision refusing to lift the stay did not conclusively determine the adverse possession issue, and the court found it premature to exclude the Defendant's defence without full factual investigation at trial.
The court also considered whether compelling reasons required the matter to proceed to trial. It found that numerous factual and legal issues remained, including the ownership structure, family agreements, and reimbursement claims, which justified a trial to ensure proper resolution.
Overall, the court applied the summary judgment test as set out in CPR 24.2 and related authorities, concluding that the claim and defence raised real issues requiring trial rather than summary determination.
Holding and Implications
The court DISMISSED the appeal against the refusal of summary dismissal of the possession claim.
The direct effect is that the possession claim and the adverse possession defence will proceed to a full trial, allowing a comprehensive factual and legal examination. The application by the Plaintiff to strike out parts of the pleadings relating to adverse possession as an abuse of process was adjourned to the trial judge for determination.
No new legal precedent was established by this decision; rather, the court reinforced the principle that complex, fact-dependent issues such as adverse possession and abuse of process are generally unsuitable for resolution at the summary judgment stage.