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Ofulue & Anor v Bossert

Ofulue & Anor v Bossert

Case [2009] UKHL 16

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I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger. I agree with it, and for the reasons he gives I would dismiss the appeal and make the order that he proposes. I also agree with my noble and learned friends Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe. I wish only to add a few words of my own on the question whether the offer to purchase the property in the letter of 14 January 1992 that was written on the Bosserts' behalf by their solicitors can be relied on by the Ofulues in these proceedings as an acknowledgement.

Sometimes letters get headed "without privilege" in the most absurd circumstances, as Ormrod J observed in Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378, 1384. But where the letters are not headed "without prejudice" unnecessarily or meaninglessly, as he went on to say at p 1385, the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain. The principle which the court should follow was that expressed by Sir John Romilly MR in Jones v Foxall (1852) 15 Beav 388, 396. If converting offers of compromise into admissions of acts prejudicial to the person making them were to be permitted no attempt to compromise a dispute could ever be made. The basis for the rule has been explained more fully by Oliver LJ in Cutts v Head [1984] Ch 290, Lord Griffiths in Rush & Tomkins Ltd v Greater London Council [1989] AC 1280 and Robert Walker LJ in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436. With the benefit of those explanations it may be re-stated in these terms. Where a letter is written "without prejudice" during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.

In this case there is no doubt that the letter of 14 January 1992 was written in the course of a genuine attempt to settle the proceedings for possession which were then in existence between the parties. It does not contain an admission in so many words that the Ofulues were the owners of the property. But the offer in the last sentence of the letter to purchase it from them can be construed as an express acknowledgement of this fact. In any event it was an implied acknowledgment which was sufficient for the purposes of section 29(2) of the Limitation Act 1980. Can this be used to defeat the defence to the proceedings which have now been issued in which the Ofulues seek an order declaring that their title to the property has not been extinguished?

This question would not have arisen if the claimants had not allowed their claim for possession to fall asleep following the breakdown of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] UKHL 16
Decision Date