Ofulue and Another v Bossert

JurisdictionEngland & Wales
JudgeLady Justice Arden,Sir Martin Nourse,Lord Justice May
Judgment Date29 January 2008
Neutral Citation[2008] EWCA Civ 7
Docket NumberCase No: A3/2005/2560
CourtCourt of Appeal (Civil Division)
Date29 January 2008
Between :
(1) EMMANUEL OFULUE
Appellants
(2) AGNES OFULUE
ERICA BOSSERT
Respondent

[2008] EWCA Civ 7

Before:

Lord Justice May

Lady Justice Arden and

Sir Martin Nourse

Case No: A3/2005/2560

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

THE CENTRAL LONDON COUNTY COURT

HH JUDGE LEVY QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Richard Wilson QC & Mr Christopher Jacobs (instructed by Messrs White Ryland, Solicitors) for the Appellants

Mr Peter Crampin QC & Mr Simon Williams (instructed by Messrs RFB, Solicitors) for the Respondent

Hearing date : 19 March 2007; further written submissions submitted October 2007

Lady Justice Arden

Introduction

1

This is an appeal against the order dated 28 October 2005 of HHJ Levy QC sitting in the Central London County Court. He found that the Bosserts had acquired the property (“the Property”) known as 61 Coburn Road, Bow, London, by adverse possession. I will refer to the appellants as MrMrs Ofulue or, where appropriate, the Ofulues. I will refer to the respondent as Ms Bossert. Her father, the late Mr Edward Bossert, also plays a part in the facts which have given rise to these proceedings. When I refer to the Bosserts, I am referring to Ms Bosserther father.

2

This appeal concerns the law of adverse possession as it stood prior to the Land Registration Act 200A major plank of the case put forward on appeal is that the law of adverse possession engages rights guaranteed by the European Convention on Human Rights (“the Convention”). These rights are authoritatively interpreted by the European Court of Human Rights (“the Strasbourg court”). When this appeal was heard on 19 March 2007, a Chamber of the former Fourth Section of the Strasbourg court had held that this law violated the owners' right to property guaranteed by art 1 of Protocol No.1 to the Convention: Pye v United Kingdom [2005] All ER (D) 199 (Nov). However, after the hearing of the appeal, the Grand Chamber of the European Court of Human Rights came to the conclusion that art 1 was engaged but not violated: Pye v United Kingdom [2007] ECHR 44302/0 That decision has a significant effect on the issues that need to be decided on this appeal. Both parties have filed substantial written submissions as a result. My first tasks in this judgment are to identify the issues that now remainto consider (so far as material) the effect of that decision. In the context of Pye v United Kingdom, references in this judgment to the Strasbourg court are (unless otherwise stated) to the Grand Chamber of the Strasbourg court. References to Pye v United Kingdom are unless otherwise stated, to the judgment of the Grand Chamber in that case.

3

The applicants to the Strasbourg court in Pye v United Kingdom were the unsuccessful parties in the case of Pye v Graham [2003] 1 AC 419. In that case the House of Lords explained what was required in terms of intention for a person to be in adverse possession,I shall need to examine the decision in connection with the second issue arising on this appeal.

Issues for determination on this appeal

4

In my judgment, the first issue which requires to be determined on this appeal is:

(1) Should this court follow Pye v. United Kingdom?

5

For the reasons given below, in answer to question (1), I consider that this court should follow Pye v United Kingdom.

6

On that basis, there being no challenge to the judge's findings of fact, the outcome of this appeal then turns only upon the determination of the following issues:

(2) Did the claim by the Bosserts, in their defence to possession proceedings, that they were tenants, prevent them having the necessary intention for adverse possession?

I will call this “the intention point”,it turns on the application of the decision of the House of Lords in Pye v Graham.

(3) Was there an acknowledgment of the Ofulues' title for the purposes of s 29 of the Limitation Act 1980 (“the 1980 Act”) which postponed the running of time beyond the start of these proceedings on 30 September 2003?

I will call this “the acknowledgement of title point”. The only communications that could constitute acknowledgments for this purpose are:

(a) the Bosserts' defencecounterclaim, dated 18 July 1990, in the first proceedings for possession referred to below,then only on the basis that that pleading was a continuing representation;

(b) the letter dated 14 January 1992 referred to below, from the Bosserts' solicitors to the Ofulues' solicitors, which was marked without prejudice. This contained an offer by the Bosserts to the Ofulues to purchase the freehold.

7

On these issues, for the reasons given below, I consider:

(2) the Bosserts' defence did not prevent them from having the intention required for adverse possession.

(3)(a) The defencecounterclaim was an acknowledgment of the landlord's title but not that he was entitled to possession,in any event it could only be an acknowledgement of the state of affairs as at the date of the defencecounterclaim (18 July 1990). This pleading did not therefore stop the running of time in the Bosserts' favour for the purpose of the 1980 Act.

(3)(b) The letter dated 14 January 1992, whereby the Bosserts made an offer to the Ofulues to buy the Property, is not admissible in evidence because it was a without prejudice communicationis not within any established exception to the rule protecting such communications.

8

It follows that the Bosserts have acquired the Property by adverse possessionthat the appeal fails.

Issues which do not have to be decided following the decision of the Strasbourg court in Pye v United Kingdom

9

Because of the decision of the Grand Chamber following the hearing of this appeal, this court does not now have to determine the following further issues on which the Ofulues also made submissions at the hearing of the appeal:

(4) where a decision of the House of Lords is inconsistent with a later decision of the Strasbourg court, what course should an inferior court take?

(5) can s 29 of the 1980 Act be interpreted so as to avoid any issue as to incompatibility with Convention rights?

Relevant provisions of the 1980 Actthe Convention etc

10

For convenience I will set out at this stage the relevant statutory provisionsprovisions of the Convention that are most relevant to this appeal.

11

The relevant provisions of the 1980 Act deal with the length of time required for adverse possession, the extinction of title after that time has expired, acknowledgments of titlesuccessors in title and, so far as material, they provide as follows:

“15. (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued or, if it first accrued to some person through whom he claims, to that person…

(6) Part 1 of Schedule 1 contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.

17

Subject to

(a) section 18 of this Act;

(b)…at the expiration of the period prescribed by this Act for any person bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.

29 (1) Subsections (2)(3) below apply where any right of action (including a foreclosure action) to recover land …has accrued.

(a) (2) If the person in possession of the land…in question acknowledges the title of the person to whom the right of action has accruedthe right shall be treated as having accrued onnot before the date of the acknowledgment…

(7) …a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.

30. (1) To be effective for the purposes of s 29 of this Act, an acknowledgement must be in writingsigned by the person making it.

for the purposes of s 29, any acknowledgement or payment

(a) may be made by the agent of a person by whom it is required to be made under that section; (b) shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.

31. Any acknowledgement of the title to any land… by any person in possession of it shall bind all other persons in possession during the ensuing period of limitation.

Schedule 1, Part 1

1

Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land,has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.

5. (1) Subject to sub-paragraph (2) below, a tenancy from year to year or other period, without a lease in writing, shall for the purposes of this Act be treated as being determined at the expiration of the first year or other period;accordingly the right of action of the person entitled to the land subject to the tenancy shall be treated as having accrued at the date on which in accordance with this sub-paragraph the tenancy is determined.

..

8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession.”);where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain dateno person is in adverse possession on that date, the right of action shall not be treated as accruing...

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