Ofulue & Anor v Bossert

The House of Lords decided that an acknowledgement of title for the purposes of section 29 of the Limitation Act 1980 must be a discrete written and signed act and does not operate as a continuing acknowledgement merely because related proceedings remain on foot. Section 30 requires an acknowledgment to be in writing and signed; a pleading or other document can amount to an acknowledgment as at its date but not indefinitely into the future. The court also held that a sentence in correspondence written expressly "without prejudice" in genuine settlement negotiations was protected by the without prejudice rule and could not be relied on as an effective section 29 acknowledgment. The public policy basis for the without prejudice rule and the need to allow parties to negotiate freely outweighed the competing policy in section 29 in the circumstances of this case.

This was an appeal from the Court of Appeal ([2008] EWCA Civ 7) concerned with adverse possession and the effect of acknowledgements under the Limitation Act 1980.

Background and procedural posture:

• The claimants (Mr and Mrs Ofulue) were registered proprietors of 61 Coborn Road but had not been in occupation since the early 1980s. The respondent (Ms Bossert) and her late father had been in occupation since about 1981.
• Earlier possession proceedings were begun in 1989. In the Defence served in 1990 the Bosserts admitted the Ofulues' title. Settlement negotiations followed, including correspondence headed "Without Prejudice" and a letter of 14 January 1992 containing an offer to purchase the freehold for £35,000. The earlier proceedings later fell into abeyance and were struck out in 2002.
• Fresh proceedings for possession were issued in September 2003. Ms Bossert pleaded adverse possession (section 15 Limitation Act 1980). The Ofulues relied on two documents as stopping time under section 29: (i) the admission of title in the 1990 Defence and (ii) the 14 January 1992 without prejudice letter.

Issues before the House:

1. Whether the admission of title in the 1990 Defence operated as a continuing acknowledgment for the purposes of section 29 so as to prevent time from running up to the striking out of the earlier proceedings.
2. Whether the without prejudice letter of 14 January 1992 could be admitted as an effective section 29 acknowledgment despite being written in the course of settlement negotiations.

Court’s reasoning:

• The court held that a written acknowledgment under section 29 is effective as at the date of the writing (and signature) required by section 30: it is not ordinarily to be treated as a continuing acknowledgment extending beyond that date unless there is a fresh written and signed affirmation. The Defence therefore, even if an acknowledgment when served in July 1990, did not continue to operate so as to revive time up to 2002.
• On the without prejudice issue the majority held that statements made in genuine without prejudice settlement negotiations are protected by the without prejudice rule and are inadmissible unless a recognised exception applies. The offer to purchase appeared within the area of compromise and was therefore protected; the public policy of encouraging open settlement discussions and the jurisprudence in Cutts, Rush & Tompkins, Unilever and related authorities meant the letter could not be used as an acknowledgment for section 29 purposes in these proceedings.
• The court considered and rejected the argument that acknowledgements under section 29 should form a special exception to the without prejudice rule: the distinction between an "admission" and an "acknowledgment" was not practicable or desirable as a categorical exception, and on the facts no recognised exception (such as estoppel, impropriety or waiver) applied.

Relief sought: An order declaring that the claim for possession was not time-barred by adverse possession, relying on the two putative acknowledgements.

Appeal dismissed. The admission in the 1990 Defence, even if constituting an acknowledgment for section 29 purposes, did not operate as a continuing acknowledgment up to the time the earlier proceedings were struck out; and the 14 January 1992 letter was written expressly "without prejudice" in settlement negotiations and was protected by the without prejudice rule, so it could not be relied on as an acknowledgement to defeat the adverse possession defence.

Appeal from the Court of Appeal (Civil Division) [2008] EWCA Civ 7; appeal to the House of Lords [2009] UKHL 16.