| LIMITATION OF ACTION — Land, recovery of — Possessory title — Squatter having previously made “without prejudice” offer to buy property — Whether admissible as evidence of acknowledgement of title — Limitation Act 1980, ss 15, 29(2)(a)
Ofulue v Bossert [2009] UKHL 16; [2009] WLR (D) 91
HL(E): Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury: 11 March 2009
An offer by a squatter to buy the property from the owners in a letter marked “without prejudice” could not be used as evidence that she had acknowledged the owners’ title to the property so as to defeat her claim to adverse possession.
The House of Lords so held (Lord Scott of Foscote dissenting) in dismissing an appeal by Agnes Ofulue against the decision of the Court of Appeal (May, Arden LJJ and Sir Martin Nourse) [2008] 3 WLR 1253 dismissing an appeal by Mrs Ofulue and Emanuel Ofulue against the order of Judge Levy QC sitting in the Central London County Court declaring that the title to a house in London E3 be amended to show Erica Josephine Bossert as registered proprietor.
In 1981 Ms Bossert and her late father had been permitted to occupy the property by a former tenant and took up residence there. In 1987 the Ofulues commenced possession proceedings and the Bosserts counterclaimed for the grant of a lease. In 1992, with the possession proceedings still pending, the Bosserts made the “without prejudice” offer to buy the property, which was rejected. The proceedings were struck out in 2002 but the following year the Ofulues issued new possession proceedings, when Ms Bossert claimed adverse possession, which the judge accepted.
LORD NEUBERGER said that the admission of title in the defence, by claiming a lease, and the offer to purchase the property in the letter were both capable of amounting to acknowledgments for the purpose of s 29 of the Act, by which time ran from any acknowledgement of title by the person in possession. The defence had been served more than 12 years before the instant proceedings were brought but it had been argued that the admission in the defence operated as a continuing acknowledgment. But the more natural meaning of the word was that it arose as at the date of the document. Nor could the “without prejudice” letter be relied on. The only sentence in the letter sought to be relied on had to be covered by the without prejudice rule on any view. It was the one which contained the actual offer to settle the earlier proceedings. Save perhaps where it was wholly unconnected with the issues between the parties to the proceedings, a statement in without prejudice negotiations should not be admissible in evidence, other than in exceptional circumstances.
LORD HOPE, LORD RODGER and LORD WALKER delivered concurring opinions.
LORD SCOTT delivered an opinion concurring on the continuing acknowledgement issue but dissenting on the without prejudice issue. |
