Ofulue and another (FC) (Appellant) v Bossert (FC) (Respondent)

An acknowledgment of a paper owner's title under section 29 of the Limitation Act 1980 takes effect when the signed writing is provided. It does not continue merely because the document remains operative in pending proceedings. Renewal normally requires a fresh signed writing, amendment or re-service.

An offer to purchase land will ordinarily acknowledge the offeree's title. An offer made in genuine without prejudice negotiations remains protected, however, even when later relied upon as a statutory acknowledgment rather than as proof of ownership. The protection extends to closely connected later proceedings and cannot ordinarily be avoided by separating an acknowledgment from the accompanying offer. Neither the policy of the limitation legislation nor conduct which is merely unattractive creates an exception.

Ofulue and another v Bossert concerned registered land occupied by the respondent and her father for more than 12 years. The appellants' earlier possession proceedings had become stayed and were struck out. When fresh proceedings were issued, the respondent claimed title by adverse possession.

The appellants relied on two documents as acknowledgments under section 29 of the Limitation Act 1980: a Defence served in the earlier proceedings and a later without prejudice letter offering to purchase the property. Judge Levy QC rejected both arguments and ordered that the respondent be registered as proprietor. The Court of Appeal dismissed the appeal in [2008] EWCA Civ 7, [2008] 3 WLR 1253.

The House considered whether the Defence operated as a continuing acknowledgment and whether the settlement letter could be relied upon despite the without prejudice rule.

1. Appeal dismissed by a majority of 4–1. Lord Neuberger delivered the leading speech. Lord Hope, Lord Rodger and Lord Walker agreed that the appeal should be dismissed. Lord Scott dissented on the without prejudice issue.

2. Per Lord Neuberger, the respondent's possession satisfied the ordinary requirements of adverse possession explained in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Actual physical possession and an intention to possess were sufficient. A belief that possession was enjoyed as a tenant did not, without another basis defeating the claim, prevent possession from being adverse. Earlier possession proceedings which were struck out had not stopped time running.

3. The Court of Appeal had been wrong to require an acknowledgment of an immediate right to possession. Section 29(2) of the Limitation Act 1980 requires acknowledgment of title. A pleading or other court document may provide that acknowledgment. The Defence served in July 1990 acknowledged the appellants' freehold title, but it did so only when served.

4. The Defence was not a continuing acknowledgment. The language and policy of sections 29 and 30 associate an acknowledgment with the date of a signed writing. Merely maintaining a pleaded case or taking procedural steps does not renew it. Renewal would ordinarily require a fresh signed document, an amended and re-served statement of case, a signed witness statement or affidavit, or possibly re-service of the original document. The 1990 acknowledgment therefore fell outside the relevant 12-year period.

5. The offer to purchase the property would, apart from privilege, have acknowledged the appellants' title. An offer to buy an interest normally acknowledges the offeree's title to it. The operative sentence was nevertheless the settlement offer itself and lay at the centre of genuine without prejudice negotiations.

6. The without prejudice rule applied to the later, closely connected proceedings. Its public-policy and consensual foundations protect the freedom to negotiate without monitoring whether individual statements might later be separated from an offer. The majority declined to distinguish statutory acknowledgments from admissions, or to create a special exception for section 29. The policy supporting settlement outweighed any competing limitation policy. The respondent's changed position was not unambiguous impropriety and did not justify overriding the protection.

7. Lord Scott would have allowed the appeal. In his view, the rule should not exclude a statement which had been common ground, formed the basis of both pleaded cases and could not sensibly have inhibited settlement. The majority rejected that proposed exception because of the uncertainty and practical restriction it would impose on settlement negotiations.

8. The order that the appellants' title was barred and that the proprietorship register be amended to show the respondent as registered proprietor was upheld.

1. House of Lords: By a majority of 4–1, dismissed the appeal in Ofulue and another v Bossert [2009] UKHL 16 and upheld the order that the respondent be registered as proprietor.
2. Court of Appeal: Dismissed the appellants' appeal from Judge Levy QC: [2008] EWCA Civ 7, [2008] 3 WLR 1253.
3. Bow County Court: Judge Levy QC held that the respondent had acquired title by adverse possession, rejected reliance on the alleged acknowledgments and directed amendment of the register.