Ronald Fletcher Baker LLP wins groundbreaking House of Lords judgement

RFB Solicitors has won a groundbreaking judgment concerning adverse possession in a recent landmark House of Lords case.

Ofulue v Bossert [2009] UKHL 16, [2009] All ER (D) 119 (Mar). The House of Lords has ruled that owners of a property could not use a "without prejudice" letter as evidence that an occupier disputing possession proceedings had acknowledged that they owned the property. Sarah Hung, a solicitor with RFB Solicitors, explains the case .

In Ofulue and Another v Bossert, Emmanuel and Agnes Ofulue appealed against the Court of Appeal's decision in 2008 to dismiss their appeal against a ruling that the title to a property in London should be amended to show Erica Bossert as the registered owner instead of them. The Ofulues based their appeal on a "without prejudice" letter Bossert sent them in 1992 in response to previous possession proceedings. They argued that as Bossert offered to buy the property in the letter, she had effectively acknowledged that they were the rightful owners. They felt that this defeated her claim--upheld by the Court of Appeal--that the title of the property should pass to her because of 12 years' adverse possession. However, the House of Lords ruled by a majority in favour of Bossert.

Sarah Hung is a solicitor with RFB Solicitors, who acted for Ms Bossert. "The most important aspect of the case was the 'without prejudice' ruling," she says. "The question was whether a 'without prejudice' letter could be regarded as unconnected with the main proceedings and whether the fact that it's unconnected to the main proceedings means that it cannot be admitted as evidence. In this case, the answer is that it cannot. In other cases with a similar background, lawyers can now be more confident about the 'without prejudice' rule, the principles behind it and the privileges it affords.
One would suspect there might be an argument on the other side to say 'without prejudice' is an
acknowledgement of title. The fact that a tenant has offered to purchase a property from a landowner does mean they accept the landowner owns it and that they hope to settle the matter by offering money. Despite the fact that the 'without prejudice' letter was sent in relation to previous proceedings, that protection was extended to Ms Bossert in the later proceedings. That should make many lawyers realise that they do not need to be afraid of relying upon the 'without prejudice' rule, despite the fact that the 'without prejudice' letter was used in previous proceedings and not in the main proceedings.

The case was unusual in that there were two proceedings, one of which became stale-date because no one pursued it. The landowners were criticised for not taking sufficient steps to take the property back. If they had done that in the first set of proceedings then Ms Bossert would not have been in a position to claim adverse possession successfully. So the 'without prejudice' rule really did affect the outcome of the claim. Had the Lords said that the 'without prejudice' letter should be admitted as evidence and could be relied upon, the outcome might have been different.

One other point worth noting is that under the new legislation, adverse possession has to be 10 years. This case fell under the old legislation where it had to be 12 years. It will be more difficult in future for people to claim adverse possession."

Contact Sarah Hung

Share this article

Submit to FacebookSubmit to TwitterSubmit to LinkedIn

City office

Ronald Fletcher Baker LLP
326 Old Street
London EC1V 9DR
DX: 137773 Finsbury 5

020 7613 1402

020 7613 2711  


West End office

Ronald Fletcher Baker LLP
77A Baker Street
London W1U 6RF
DX: 42722 Oxford Circus North

020 7467 5757

020 7467 5758

Manchester office

Ronald Fletcher Baker LLP
111 Piccadilly
Manchester M1 2HY

DX: 6967003 Manchester 94 M

0161 694 4404

0161 638 0930

Istanbul Office

Ronald Fletcher Baker Danismanlik Hizmetleri Avukatlik Ortakligi
Tesvikiye Cadessi
No: 28 Alhambra Apartmani
Nisantasi, İstanbul

07736 364222

Emergency number

07538 490647

Ronald Fletcher Baker LLP is authorised and regulated by the Solicitors Regulation Authority. Company number OC345891

City office ID 512598
West End office ID 523362.
Manchester office ID 630156

V.A.T. registration number: 2206798 63VAT

"Partner" denotes a senior member of the LLP or an employee with the equivalent standing.

PII cover - QBE Insurance (Europe) Limited. For further details please contact Rakeebah Rahim

Website design by coolgrey

Photography: Camilla Greenwell


Get a free conveyancing quote


View our privacy policy

We encourage you to contact us in the first instance if you are unhappy with the service you receive from us. Contact John O’Callaghan, the complaints partner at; alternatively in some circumstances you may be able to make use of the ODR platform.