Thomas Munby KC and James Kinman appeared for the successful party in Malik v Malik [2024] EWCA Civ 1323, in which the Court of Appeal handed down judgment on 4 November 2023. They successfully argued that the test for whether a party will – by adopting one position in litigation – be barred from adopting a contrary position at a later stage is broad and merits based, unfettered by strict rules. In particular, it is not necessary to identify a clear, unequivocal statement of position by the party in question, and it is wrong to import such a requirement from the law of promissory estoppel.

The case concerned an extremely long-running family dispute over ownership of valuable residential property (the appeal concerned two sets of proceedings, one of which was issued in 1987). Thomas and James acted for the legal proprietor of the property, attempting to recover possession from his brother, who had occupied the property for 37 years. Their position was that statements made by the brother at a hearing in 2012 prevented the brother from being able to rely on any rights to the property which he may have had by reason of adverse possession. This argument was accepted at first instance but had been rejected on the occupier’s appeal to the High Court (where Thomas and James were successful on other grounds). The Court of Appeal restored the decision of the first instance judge, holding that the High Court did not have sufficient grounds to interfere with the trial judge’s evaluative assessment.

In light of the Court of Appeal’s decision on this question, other issues in the appeal did not have to be determined. These included the questions of whether the occupying brother actually had any rights arising by reason of adverse possession, and of whether the legal proprietor was entitled to lift a stay imposed on possession proceedings which had been issued before any such rights had arisen.

The full judgment can be found here

Thomas and James were instructed by Ken Duncan and Adam Polonsky of Stephenson Harwood LLP.

The occupying brother was represented by Stephen Jourdan KC, instructed by Spencer West LLP.