Ronald Fletcher Baker LLP wins groundbreaking House of Lords judgement

June 5th 2009

RFB Solicitors has won a groundbreaking judgment concerning adverse possession in a recent landmark House of Lords case.

Ofulue v Bossert [2009] UKHL 16, [2009] All ER (D) 119 (Mar). The House of Lords has ruled that owners of a property could not use a "without prejudice" letter as evidence that an occupier disputing possession proceedings had acknowledged that they owned the property. Sarah Hung, a solicitor with RFB Solicitors, explains the case .

In Ofulue and Another v Bossert, Emmanuel and Agnes Ofulue appealed against the Court of Appeal's decision in 2008 to dismiss their appeal against a ruling that the title to a property in London should be amended to show Erica Bossert as the registered owner instead of them. The Ofulues based their appeal on a "without prejudice" letter Bossert sent them in 1992 in response to previous possession proceedings. They argued that as Bossert offered to buy the property in the letter, she had effectively acknowledged that they were the rightful owners. They felt that this defeated her claim--upheld by the Court of Appeal--that the title of the property should pass to her because of 12 years' adverse possession. However, the House of Lords ruled by a majority in favour of Bossert.

Sarah Hung is a solicitor with RFB Solicitors, who acted for Ms Bossert. "The most important aspect of the case was the 'without prejudice' ruling," she says. "The question was whether a 'without prejudice' letter could be regarded as unconnected with the main proceedings and whether the fact that it's unconnected to the main proceedings means that it cannot be admitted as evidence. In this case, the answer is that it cannot. In other cases with a similar background, lawyers can now be more confident about the 'without prejudice' rule, the principles behind it and the privileges it affords.
One would suspect there might be an argument on the other side to say 'without prejudice' is an
acknowledgement of title. The fact that a tenant has offered to purchase a property from a landowner does mean they accept the landowner owns it and that they hope to settle the matter by offering money. Despite the fact that the 'without prejudice' letter was sent in relation to previous proceedings, that protection was extended to Ms Bossert in the later proceedings. That should make many lawyers realise that they do not need to be afraid of relying upon the 'without prejudice' rule, despite the fact that the 'without prejudice' letter was used in previous proceedings and not in the main proceedings.

The case was unusual in that there were two proceedings, one of which became stale-date because no one pursued it. The landowners were criticised for not taking sufficient steps to take the property back. If they had done that in the first set of proceedings then Ms Bossert would not have been in a position to claim adverse possession successfully. So the 'without prejudice' rule really did affect the outcome of the claim. Had the Lords said that the 'without prejudice' letter should be admitted as evidence and could be relied upon, the outcome might have been different.

One other point worth noting is that under the new legislation, adverse possession has to be 10 years. This case fell under the old legislation where it had to be 12 years. It will be more difficult in future for people to claim adverse possession."

Contact Sarah Hung