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Ofulue & Anor v. Bossert
Smart Summary
Factual and Procedural Background
The Appellant and her husband purchased a residential property at [Property Address] in 1976 and were entered as registered proprietors. They later resided abroad and let the premises to tenants. In 1981 the Respondent and her father entered into occupation via a former tenant and remained in exclusive possession. In 1989 the Appellant issued possession proceedings (“the first action”). The Respondent’s Defence admitted the Appellant’s freehold title but asserted entitlement to remain in possession either as assignee of a tenancy or under an oral agreement for a fourteen-year lease. Settlement negotiations followed; on 14 January 1992 the Respondent’s solicitors wrote a letter headed “Without Prejudice” offering £35,000 to purchase the property.
The first action stagnated, became automatically stayed in April 2000 and was struck out in April 2002. On 30 September 2003 the Appellant commenced fresh possession proceedings (“the second action”). The Respondent now relied on adverse possession for more than twelve years under sections 15 and 17 of the Limitation Act 1980, contending that her earlier claims to a tenancy had been abandoned. The Appellant relied on two alleged acknowledgements of title under section 29(2): (1) the admission in the 1990 Defence and (2) the 14 January 1992 “without prejudice” letter.
The trial judge rejected the Appellant’s case; the Court of Appeal dismissed her appeal. The present appeal to the Supreme Court of the United Kingdom* concerns the continuing effect of the 1990 Defence and the admissibility of the 1992 letter.
Legal Issues Presented
- Whether an admission of title contained in a Defence remains a “continuing acknowledgement” under section 29(2)(a) of the Limitation Act 1980 until the earlier proceedings are struck out.
- Whether an implied acknowledgement of title contained in a letter marked “without prejudice” can be relied upon under section 29(2)(a) despite the without-prejudice rule.
Arguments of the Parties
Appellant's Arguments
- The 1990 Defence constituted a continuing acknowledgement of her title, keeping time suspended until at least April 2002.
- Alternatively, the 14 January 1992 offer to purchase is admissible as an acknowledgement because (a) title was common ground in the first action, (b) the acknowledgement is relied on for the fact that it was made, not for its truth, and (c) public-policy objectives behind section 29 override the without-prejudice privilege.
- Equity and the “justice of the case” require admission of the letter since the Respondent now asserts a position inconsistent with her earlier stance.
Respondent's Arguments
- The 1990 Defence effected a one-off acknowledgement on its date; nothing in section 29 supports a doctrine of continuing acknowledgement.
- The 1992 letter formed part of genuine settlement negotiations; the public-policy and contractual bases of the without-prejudice rule prevent its use.
- No impropriety exists that would justify lifting the privilege, and there is no legislative or common-law exception for acknowledgements.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
| Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378 | Court’s reluctance to lift without-prejudice privilege | Quoted to emphasise caution before admitting settlement communications. |
| Jones v Foxall (1852) 15 Beav 388 | Early articulation of settlement privilege | Relied on as historical foundation for the modern rule. |
| Cutts v Head [1984] Ch 290 | Public-policy and contractual bases of the rule | Provided analytical framework approved and applied. |
| Rush & Tomkins Ltd v Greater London Council [1989] AC 1280 | Without-prejudice rule extends beyond parties and proceedings | Governs admissibility of the 1992 letter in subsequent litigation. |
| Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 | Limited exceptions to privilege; need for certainty | Cited for eight recognised exceptions and policy rationale. |
| Bradford & Bingley plc v Rashid [2006] UKHL 37 | Distinction between admissions and acknowledgements discussed | Majority doubted creation of an acknowledgement exception; followed here. |
| Muller v Linsley & Mortimer [1996] PNLR 74 | Argument that statements may be admissible as facts not admissions | Distinction rejected as impractical in present case. |
| Waldridge v Kennison (1794) 1 Esp 142 | Narrow “independent fact” exception | Held inapplicable; offer fell within area of compromise. |
| JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 | Elements of adverse possession | Confirmed Respondent’s possession met statutory test. |
| JA Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 1083 | ECHR compatibility of adverse-possession regime | Followed; no Convention bar to Respondent’s defence. |
| Markfield Investments Ltd v Evans [2001] 1 WLR 1321 | Effect of stayed proceedings on limitation | Applied to show earlier action did not stop time running. |
| Spencer v Hemmerde [1922] 2 AC 507 | Letters as acknowledgements | Discussed in context of Hoffmann LJ’s distinction; not determinative. |
| In re Daintrey; Ex p Holt [1893] 2 QB 116 | Privilege does not conceal an act of bankruptcy | Differentiated: acts affecting all creditors distinct from private acknowledgements. |
| Walker v Wilsher (1889) 23 QBD 335 | Strict protection of settlement offers | Used to support a wide scope of privilege. |
| Hoghton v Hoghton (1852) 15 Beav 278 | Sacrosanct nature of compromise communications | Cited historically. |
| Whiffen v Hartwright (1848) 11 Beav 111 | Early recognition of privilege | Cited historically. |
| River Steamer Co (1871) LR Ch App 822 | Acknowledgement requirements in nineteenth century | Dictum considered but not followed. |
| Belanger v Gilbert [1984] 6 WWR 474 (Can) | Effect of “confirmation” under limitation law | Discussed comparatively; no impact on decision. |
| Farrell v Tisdale (1987) 16 BCLR (2d) 230 (Can) | Conflicting Canadian approach | Not adopted. |
| South Shropshire DC v Amos [1986] 1 WLR 1271 | Rent-review and privilege | Referenced in academic commentary; not central. |
| Norwich Union Life Insurance Society v Tony Waller Ltd (1984) 270 EG 42 | Heading “without prejudice” used inappropriately | Cited illustratively. |
| McDowell v Hirschfield Lipson & Rumney [1992] 2 FLR 126 | Waiver of privilege | Noted in discussion; no waiver here. |
| Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178 | Estoppel exception | Example of established exception; not applicable. |
Court's Reasoning and Analysis
Issue 1 – Continuing acknowledgement. The Court held that section 29(2) contemplates a single dated act of acknowledgement, not an open-ended, continuing one. The statutory requirement that it be “in writing and signed” emphasises certainty. Nothing in the text or purpose of the Limitation Act 1980 supports treating pleadings as perpetually re-affirming acknowledgements; nor did procedural steps in the stayed action amount to a fresh signed affirmation.
Issue 2 – Admissibility of the 1992 letter. The letter was plainly part of bona-fide settlement negotiations and expressly headed “Without Prejudice”. The public-policy and consensual foundations of the privilege require that such communications remain inadmissible unless an established exception applies. The Court rejected four suggested bases for admission:
- The fact that title was common ground in the first action did not matter; the sentence containing the offer lay at the heart of the compromise.
- Attempting to treat the offer merely as proof of an act (acknowledgement) and not for its truth was an impractical distinction risking erosion of the rule.
- No separate statutory or public-policy exception exists for acknowledgements under section 29; the policy behind encouraging candid settlement outweighs any countervailing interest.
- There was no “unambiguous impropriety” on the Respondent’s part; reliance on the privilege was legitimate.
The Court aligned itself with the wide protective approach in Rush & Tomkins and Unilever, preferring legal certainty to the creation of a new exception.
Holding and Implications
Appeal Dismissed. The 1990 Defence provided only a dated, non-continuing acknowledgement; the 1992 “without prejudice” offer was inadmissible. Consequently, the Respondent’s twelve-year period of adverse possession was uninterrupted, the Appellant’s title was extinguished, and the register must be amended to show the Respondent as proprietor.
Implications: The decision reinforces the breadth and rigidity of the without-prejudice rule, confirming that acknowledgements of title (or debt) embedded in settlement communications remain privileged absent a recognised exception. Litigants cannot rely on such communications to revive time-barred claims, thereby preserving the integrity and utility of candid settlement negotiations. No new precedent on limitation or privilege was created; the ruling consolidates existing authority.
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