Ofulue & Anor v Bossert

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

1. 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.
2. 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

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.