Ofulue et al. v. Bossert, (2009) 397 N.R. 118 (HL)

• Case Date: March 11, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 397 N.R. 118 (HL)

Ofulue v. Bossert (2009), 397 N.R. 118 (HL)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. NO.033

Ofulue and another (FC) (appellant) v. Bossert (FC) (respondent)

([2009] UKHL 16)

Indexed As: Ofulue et al. v. Bossert

House of Lords

London, England

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury

March 11, 2009.

Summary:

In 1989, the plaintiff property owners sued the defendants for possession of their property. In their defence (July 18, 1990), the defendants admitted that the plaintiffs had paper title, but claimed an equitable or legal interest in the property. On January 14, 1992, the defendants sent a "Without Prejudice" letter offering to purchase the property from the plaintiffs. That offer was rejected. Time passed and the original proceedings were struck after one defendant died. On 30 September 2003, the plaintiffs issued fresh proceedings. This time, the surviving defendant claimed title by adverse possession (i.e., more than 12 years uninterrupted possession as trespassers (Limitation Act, s. 15)). The plaintiff countered that the surviving defendant had acknowledged the plaintiff's title during that 12 year period in either the defence of July 18, 1990, in the original proceedings, or in the letter of January 14, 1992, thereby interrupting the period of possession (Limitation Act, s. 29(2)). The trial judge accepted the defendant's adverse possession claim and rejected the plaintiffs' contention that the running of time had been interrupted by any acknowledgment. The Court of Appeal affirmed the decision. One of the plaintiffs appealed. At issue was: (1) whether the admission of title in the defence of July 18, 1990, was not merely an acknowledgement, but was also a continuing acknowledgement for purposes of s. 29(2) of the Limitation Act 1980, which prevented time running for adverse possession purposes from when it was served up to the time the original proceedings were dismissed; and (2) whether the letter of January 14, 1992, could in fact be relied on as an acknowledgment, since it was written without prejudice with a view to settling the earlier proceedings.

The House of Lords, Lord Scott of Foscote, dissenting, dismissed the appeal. The court held that the a pleading could constitute an acknowledgment for the purposes of s. 29 of the Limitation Act. Accordingly, the admission in the defence in this case operated as such as an acknowledgment of the plaintiffs' title as of July 18, 1990, the date of the admission. However, the court rejected the argument that the admission continued to operate as an acknowledgment beyond July 18, 1990, for purposes of the Limitation Act (i.e., the time period for purposes of establishing adverse possession was not postponed). Further, there was no basis for overriding the rule that "without prejudice" admissions as part of settlement negotiations were not admissible. The court declined to create an exception to the without prejudice rule for acknowledgements under s. 29 of the Act. Therefore, the plaintiffs' were unable to overcome the adverse possession claim.

Evidence - Topic 3626

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement negotiations - In 1989, the plaintiff property owners sued the defendants for possession of their property - In their defence (July 18, 1990), the defendants admitted that the plaintiffs had paper title, but claimed an interest in the property - On January 14, 1992, the defendants sent a "Without Prejudice" letter offering to purchase the property from the plaintiffs - That offer was rejected - Time passed and the original proceedings were struck after one defendant died - On 30 September 2003, the plaintiffs issued fresh proceedings - The surviving defendant claimed title by adverse possession (i.e., more than 12 years uninterrupted possession as trespassers (Limitation Act, s. 15)) - The plaintiff countered that the surviving defendant had acknowledged the plaintiff's title during that 12 year period in either the defence of July 18, 1990, in the original proceedings, or in the letter of January 14, 1992, thereby interrupting the period of possession (Limitation Act, s. 29(2)) - The trial judge accepted the defendant's adverse possession claim and rejected the plaintiffs' contention that the running of time had been interrupted by any acknowledgment - The Court of Appeal affirmed the decision - One of the plaintiff's appealed - The House of Lords dismissed the appeal - The court held that the defence in this case operated as an acknowledgment of the plaintiffs' title as of July 18, 1990, the date of the admission, for purposes of s. 29 of the Act - However, the admission did not continue to operate as an acknowledgment beyond July 18, 1990 (i.e., the time period for purposes of establishing adverse possession was not postponed) - Further, there was no basis for overriding the rule that "without prejudice" admissions as part of settlement negotiations were not admissible, even with respect to acknowledgements under s. 29 of the Act - Therefore, the plaintiffs' were unable to overcome the adverse possession claim.

Evidence - Topic 3630

Documentary evidence - Private documents - Letters or documents written without prejudice - Admissibility in subsequent proceedings - [See Evidence - Topic 3626 ].

Limitation of Actions - Topic 4110

Recovery of land - Interruption or stopping of limitation period - Acknowledgements - [See Evidence - Topic 3626 ].

Real Property - Topic 6093

Title - Extinguishment, prescription and adverse possession - Defences - Acknowledgement of owner's title by adverse claimants - [See Evidence - Topic 3626 ].

Cases Noticed:

Tomlin v. Standard Telephones & Cables Ltd., [1969] 1 W.L.R. 1378 (C.A.), refd to. [para. 2].

Jones v. Foxall (1852), 15 Beav. 388 (Rolls Ct.), refd to. [paras. 2, 22, 57].

Cutts v. Head, [1984] Ch. 290 (C.A.), refd to. [paras. 2, 23, 46, 99].

Rush & Tompkins Ltd. v. Greater London Council, [1989] A.C. 1280; 104 N.R. 392 (H.L.), refd to. [paras. 2, 25, 37, 46, 85].

Unilever plc v. Procter & Gamble Co., [2000] 1 W.L.R. 2436 (C.A.), refd to. [paras. 2, 26, 38, 85].

Bradford & Bingley plc v. Rashid, [2006] 1 W.L.R. 2066; 361 N.R. 93; [2006] UKHL 37, refd to. [paras. 10, 29, 38, 48, 93].

Muller v. Linsley & Mortimer, [1996] P.N.L.R. 74 (C.A.), refd to. [paras. 11, 27, 40, 47, 87].

Whiffen v. Hartwright (1848), 11 Beav. 111 (Rolls Ct.), refd to. [para. 22].

Hoghton v. Hoghton (1852), 15 Beav. 278 (Rolls Ct.), refd to. [paras. 22, 57].

Waldridge v. Kennison (1794), 1 Esp. 142 (N.P.), refd to. [paras. 25, 39, 58, 92].

Daintrey, Re; Ex parte Holt, [1893] 2 Q.B. 116 (C.A.), refd to. [paras. 27, 53, 97].

McDowell v. Hirschfield Lipson & Rumney, [1992] 2 F.L.R. 126; The Times, February 13, 1992, refd to. [paras. 33, 99].

Norwich Union Life Insurance Society v. Waller (Tony) Ltd. (1984), 270 E.G. 42, refd to. [paras. 33, 99].

South Shropshire DC v. Amos, [1986] 1 W.L.R. 1271 (C.A.), refd to. [para. 33].

Hodgkinson & Corby Ltd. v. Wards Mobility Services Ltd., [1997] F.S.R. 178, refd to. [paras. 33, 99].

Spencer v. Hemmerde, [1922] 2 A.C. 507 (H.L.), refd to. [para. 49].

River Steamer Co., Re (1871), L.R. Ch. App. 822, refd to. [para. 56].

Belanger v. Gilbert, [1984] 6 W.W.R. 474 (B.C.C.A.), refd to. [para. 56].

Farrell v. Tisdale (1987), 16 B.C.L.R.(2d) 230 (C.A.), refd to. [para. 56].

Walker v. Wilsher (1889), 23 Q.B.D. 335 (C.A.), refd to. [para. 57].

J A Pye (Oxford) Ltd. et al. v. Graham et al., [2003] 1 A.C. 419; 294 N.R. 297 (H.L.), revd. (2005), 43 E.H.R.R. 43; (2007), 46 E.H.R.R. 1083 (Grand Chamber), refd to. [paras. 67, 68].

Markfield Investments Ltd. v. Evans, [2001] 1 W.L.R. 1321 (C.A.), refd to. [para. 70].

Edgington v. Clark, [1964] 1 Q.B. 367, refd to. [para. 76].

Johnston v. Smith, [1896] 2 I.R. 82, refd to. [para. 82].

Statutes Noticed:

Limitation Act, 1980 (U.K.), sect. 15 [para. 32]; sect. 29(2) [para. 14].

Authors and Works Noticed:

Matthews, Paul, and Malek, Hodge M., Disclosure (3rd Ed. 2007), paras. 11.127 to 11.132 [para. 33].

Tracy, J.E., Evidence - Admissibility of Statements of Fact made during Negotiation for Compromise (1935-1936), 34 Mich. L. Rev. 524, p. 529 [para. 39].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1972), pp. 34, 35, 36 [para. 57].

Counsel:

Richard Wilson, Q.C., and Christopher Jacobs (Instructed by Hodge Jones & Allen), for the appellant;

Peter Cramplin, Q.C., and Simon Williams (Instructed by RFB Solicitors), for the respondent.

Agents:

[Not disclosed.]

This appeal was heard on February 2-3, 2009, by Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury, of the House of Lords. The decision of the House was delivered on March 11, 2009, when the following opinions were filed:

Lord Hope of Craighead - see paragraphs 1 to 12;

Lord Scott of Foscote, dissenting - see paragraphs 13 to 35;

Lord Rodger of Earlsferry - see paragraphs 36 to 44;

Lord Walker of Gestingthorpe - see paragraphs 45 to 59;

Lord Neuberger of Abbotsbury - see paragraphs 60 to 104.