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Adverse Possession: Articles 1, 6 and freedom of speech?


Agnes Ofulue v the United Kingdom Application no. 52512/09 ECtHR

This admissibility hearing was the culmination of a long, long story. We reported the Court of Appeal judgment and the House of Lords judgments. The very abbreviated history was that in 2005, the Ofulues had lost a possession claim for a property on the basis that the Bosserts, who had lived in the property since 1981, had gained title through adverse possession.

The Ofulues appealed on the basis that the law on adverse possession constituted a breach of Article 1, Protocol 1,and Art 6, and further that i) the Bosserts had acknowledged that they were tenants in a defence to possession proceedings in 1990, and ii) that the Bosserts had acknowledged title (so as to re-start time) in a without prejudice letter of 1992. The Court of Appeal held that, following Pye v United Kingdom [2007] ECHR 44302/0, adverse possession law was Art 1, Prot 1, and Art 6 compliant. On the acknowledgements of title, the defence to the possession claim did not prevent the ‘defendant’ occupant having the requisite intention to possess – a person believing themselves a tenant may still have to requisite intention to possess. Crucially, the Court of Appeal also held that there was no reason to overturn the usual rule on ‘without prejudice’ correspondence, as the letter was clearly part of an attempt to settle the dispute.

On appeal to the House of Lords, the Olufues argued that the defence to possession claim was an admission of title that persisted until the proceedings were struck out, some 6 years later, and that the ‘without prejudice’ letter should be considered as an acknowledgement of title. The HoL had no problem in disposing of the argument on the possession defence – s.29(2) referred to the date of acknowledgment – signing and service, but no later.

On the ‘without prejudice’ letter, their Lordships split 4 to 1. The majority held, in the words of Lord Neuberger:

that, save perhaps where it is wholly unconnected with the issues between the parties to the proceedings, a statement in without prejudice negotiations should not be admissible in evidence, other than in exceptional circumstances such as those mentioned in Unilever [2000] 1 WLR 2436, 2444D-2445G. It is not only that the offer contained in the relevant sentence of the Letter was connected with the issue between the parties in the earlier proceedings.

Public policy stood in the way of making such an exception. The ECtHR Grand Chamber’s decision in Pye v United Kingdom on Art 1 compliance noted.

Ms Ofulue applied to the ECtHR. She claimed that the House of Lords decision amounted to a breach of her rights under:

  • Art 1, protocol 1, in that she had been deprived of her property by the declared inadmissibility of the ‘without prejudice’ correspondence. The without prejudice rule did not serve a legitimate public interest, or at least that the interference with her rights did not strike a fair balance between the general interest and the protection of her individual property rights.
  • Art 6, as she was not afforded a reasonable opportunity to present her case under conditions that did not place her at a substantial disadvantage.
  • Art 10, in that the House of Lords finding that the ‘without prejudice’ rule applied to the relevant letter (written by the Bosserts’ solicitor, lest we forget) violated her rights to free expression because it failed to strike a fair balance between her rights and the public policy justification for the rule.

The ECtHR decided:

On Art 1, Prot 1, Pye v UK was clear in agreeing that the adverse possession regime was Art 1 compliant and there was nothing different in this case to cause the Court to consider that the Art 1 case might be admissible. The conditions is Pye were no different in consideration of proportionality of the adverse possession regime:

35. The Court recalls that the Grand Chamber in Pye also found that applicants in adverse possession cases were not without procedural protection as it was open to them throughout the limitation period to bring an action for possession or, on the expiry of the limitation period, to argue before the domestic courts that the occupiers of their land had not been in adverse possession. In the present case it was clearly open to the applicant to bring an action for possession at any time and, as indicated above, she did so on two separate occasions. Moreover, there is no indication that the delay in bringing the second set of proceedings was due to any reliance on the letter of 14 January 1992.

36. It was also open to the applicant on the expiry of the limitation period to argue that the Bs had not been in adverse possession. The only restriction on this right was the domestic court’s refusal to admit in evidence the letter of 14 January 1992. However, the Court has already held that this decision did not render the proceedings as a whole unfair in violation of Article 6 § 1 of the Convention. It was for the domestic courts to balance the interests of the applicant against the interests of public policy and they did so in a carefully reasoned decision, taking full account of the arguments put forward by the applicant.

On Art 6:

25. As the purpose of the “without prejudice” rule is to encourage litigants to reduce the burden on the courts by settling their differences rather than litigating them to a finish, it undoubtedly has a legitimate objective. As to the issue of proportionality, the Court must assess the contested limitation placed on the applicant’s rights under Article 6 in the light of the particular circumstances of the case.

26. The Court observes that in the present case the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings she was represented by counsel who was able to submit the arguments he considered relevant to the applicant’s case. There is therefore no indication that the applicant was not given a fair opportunity to present her case at any stage of the proceedings.

27. With regard to the letter of 14 January 1992, the domestic courts fully considered the arguments put forward by the applicant. However, the majority of the House of Lords were of the opinion that carving out an exception to the “without prejudice” rule to permit the admission of the letter of 14 January 1992 would not be consistent with the public policy behind the rule. The majority were particularly concerned that creating such an exception could potentially cause huge practical difficulties while also whittling down the protection afforded to parties to litigation.

28. The Court does not consider that the very essence of the applicant’s right to a fair trial was impaired. While the outcome of the proceedings was unfavourable to the applicant, it is clear that both the first-instance and appellate courts carefully weighed the demands of the applicant against the demands of the general interest before concluding that the letter could not be admitted. In view of all the circumstances of the case, the Court finds that this decision did not render the proceedings as a whole unfair.

On article 10, this argument had quite simply not been put before the domestic courts, so the domestic remedies could not be considered exhausted in this regard.

[This latter is probably the only point where the ECtHR go wrong, in my humble opinion. There is no domestic remedy in respect of an argument not previously raised when the case has been to the House of Lords, although that does not excuse the appellant for not having raised it before. However, I suspect that the ECtHR were looking for a formula to dismiss the Art 10 ‘freedom of expression’ argument without having to actually say that it was completely bonkers. In what conceivable way is the inadmissibility in evidence against one’s opponents of a letter by them a restriction on one’s freedom of speech? One can say what one wants. The issue is of evidence such as to support factual assertions. No freedom of speech issue there.]

So there we are. It has been a long story, which has principally served to confirm existing domestic and ECtHR law on adverse possession and the ‘without prejudice’ rule. Given Pye v UK, it was always going to be an uphill struggle for Ms Ofulue, and it was, to say the least, unlikely that the ECtHR would interfere with the ‘without prejudice’ rule where the highest domestic court had spent some considerable time on the issue, expressly balancing the competing interests in the case and coming down on the side of public policy.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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