Ofulue and Another v Bossert
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARSLFERRY,LORD WALKER OF GESTINGTHORPE,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 11 March 2009 |
| Neutral Citation | [2009] UKHL 16 |
| Date | 11 March 2009 |
| Court | House of Lords |
and another (FC)
[2009] UKHL 16
Appellate Committee
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellant:
Richard Wilson QC
Christopher Jacobs
(Instructed by Hodge Jones & Allen)
Respondent:
Peter Cramplin QC
Simon Williams
(Instructed by RFB Solicitors)
My Lords,
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 berelied 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 attempt at settlement. As it is, the Ofulues allowed so much time to pass that they must now challenge Ms Bossert's assertion that the title has passed to her by way of adverse possession. That is why the present claim has been brought. The letter of 14 January 1992 was written within 12 years of the start of these proceedings. What grounds are there for saying that, notwithstanding the fact that it was written "without prejudice", it can be founded on as an effective acknowledgment for the purposes of section 29(2) of the 1980 Act?
In Cutts v Head [1984] Ch 290 at p 306 Oliver LJ said that the rule that protects without prejudice negotiations from disclosure rests, at least in part, upon public policy. As he explained, the public policy justification essentially rests on the desirability of preventing statements or offers made in the course of negotiations being brought before the court of trial as admissions on the question of liability. At p 310 he said that the public policy protects negotiations from disclosure "whilst liability is still in issue". In that case the offer was unacceptable, the case went to trial and the question was whether the offer could be referred to on the issue of costs. The situation in this case is that the negotiations were not successful but the application for possession in the original action has been struck out. So there is no question of seeking in that action to rely on the letter of 14 January 1992 before the court of trial. The question which this formulation of the public policy justification gives rise to is whether the protection from disclosure has any effect beyond the life of the action which the parties were attempting to settle when they entered into the negotiations.
In Rush & Tomkins Ltd v Greater London Council [1989] AC 1280, 1299 Lord Griffiths said that the effect of the phrase was that, as a general rule, in the event of the negotiations being unsuccessful the negotiations were not to be referred to at the subsequent trial. At p 1300 he said that the rule was not absolute and that resort may be had to the "without prejudice" material for a variety of reasons when the justice of the case requires it. In that case the second defendants sought disclosure of correspondence marked "without prejudice" between the plaintiffs and the first defendants which had resulted in those parties reaching a compromise. It was held that admissions made to reach a settlement with a different party within the same litigation were also inadmissible whether or not settlement was reached with that party. Lord Griffiths said at p 1305 that the wiser course, in multi-party litigation, was to protect "without prejudice" communications between parties to litigation from production to other parties in the same litigation. In that case the question whether the protection would continue to be available in any subsequent proceedings between the same parties with reference to the same subject matter was not in issue.
In Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 the claimant sought to rely on the defendant's alleged threat to take proceedings in the United Kingdom in respect of an alleged infringement of a patent, made in the course of a without prejudice meeting with reference to proceedings that had been brought in France, to justify the taking of proceedings for a declaration of non-infringement in this jurisdiction. The claimant was not seeking to make use of the alleged threat in the proceedings which were the subject of the negotiations for settlement. In a sense it had nothing to do with those proceedings at all. It would not have been relevant to anything that was to be determined at the trial. As Robert Walker LJ noted at pp 2444-2445, there are various situations in which the without prejudice rule does not prevent the admission into evidence of what one or both parties said or wrote. None of those situations apply to this case. But the general approach which he recommended provides valuable guidance. At pp 2448-2449 he said that to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications would not only create huge practical difficulties but would be contrary to the underlying objective, founded partly in public policy and partly in the agreement of the parties, of giving protection to the parties so that they could speak freely about all issues in the litigation when seeking compromise. These comments show that this is not a situation in which arguments that resort to procedural or linguistic technicalities are appropriate.
The argument that the letter cannot be relied on as an acknowledgment faces two difficulties which have persuaded my noble and learned friend Lord Scott of Foscote that the rule does apply in this case. The first is the product of a change of circumstances. The issue that is being litigated between the parties now is not the issue that was being litigated when the letter was written in January 1992. In fact it was not an issue that was in dispute between the parties at that time at all. The second is a more subtle aspect of the same point. It is whether the protection that the rule gives in without prejudice negotiations to an admission against interest extends to an acknowledgment of what at the time it was made was an agreed fact.
Normally, when negotiations are entered into with a view to settling a claim that has already been brought, one or other of two things happens: either they result in an agreement or they break down and the claim proceeds to judgment. If they result in agreement, the letter that was written without prejudice is available to show what the agreement was. If the claim proceeds to judgment, the protection remains in place while liability is still in issue but it ceases to have any purpose when the court has resolved the dispute. This case is unusual because the negotiations did not result in an agreement and the claim did not proceed to judgment. It went to sleep and was then struck out. But I would hold that this turn of events did not remove the need for protection. The dispute had not been resolved, so there was still a risk that things said in the letter might be used to the Bosserts' prejudice. The issue which had given rise to the original proceedings had not gone away. Ultimately of course, if the Bosserts remained in possession and no further steps were taken against them, they would acquire a right of ownership under the provisions of the Limitation Act 1980. But so long as the Ofulues remained the owners and the dispute was unresolved...
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