Adverse possession – Acknowledgement of title – Section 29(2) of Limitation Act 1980 – Appellants seeking possession against respondent – Respondent claiming adverse possession – Whether respondent acknowledging appellants title in earlier possession proceedings – Appeal dismissed
The appellants, who lived in Nigeria, were the registered owners of a property in London, which they let to tenants. In 1981, the respondent and her father (B) entered into possession of the property with the permission of the then tenant. In 1989, the appellants began possession proceedings against the respondent in the High Court. The respondent and B admitted the appellants’ title but claimed that B had taken an assignment of the tenant’s lease or, in the alternative, that he had carried out substantial work to the property on the understanding that he would receive a 14–year lease. Meanwhile, in 1992, in “without prejudice” correspondence between the parties, they made an offer to purchase the freehold, which the appellants rejected. The proceedings were not pursued further and were stayed automatically on B’s death in 2000.
In 2003, following a failed application to lift the stay, the appellants issued new possession proceedings in the county court. The respondent claimed to have acquired title to the freehold by adverse possession. She argued that she had been in uninterrupted possession as a trespasser for more than 12 years before the commencement of the new possession proceedings and had acquired title under sections 15 and 17 of the Limitation Act 1980. The appellants contended that the respondent’s defences to the earlier possession proceedings and the offer to purchase the freehold in the “without prejudice” correspondence had amounted to an acknowledgement of title within section 29(2)(a) of the 1980 Act, which had stopped time running against them. In the courts below, that argument was rejected and the possession claim dismissed. The appellants appealed.
Held (Lord Scott dissenting on the third point): The appeal was dismissed.
(1) Subject to the effect of the earlier possession proceedings and the “without prejudice” correspondence, the respondent had been in adverse possession of the property for more than 12 years before the 2003 possession proceedings were commenced. The fact that she and B might have believed that they were in possession as tenants in law or in equity did not prevent their possession from being “adverse”, since all that was normally required was an intention to possess together with actual physical possession: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 applied.
(2) The admission of title in the defence to the earlier possession proceedings had constituted an acknowledgement of title such as to stop time running against the appellants: Markfield Investments Ltd v Evans [2001] 1 WLR 1321 distinguished. Section 29(2) did not require an acknowledgement of a right to immediate possession, but simply an acknowledgement of the paper owner’s title. However, that acknowledgement did not prevent the respondent from acquiring title by adverse possession because it had been made more than 12 years prior to the current possession proceedings and was not continuing in nature. To construe the word “acknowledgement ” in section 29 as covering a continuing state of affairs would be inconsistent with both the language and the policy of the relevant provisions. The requirement in section 30, that an acknowledgement must be embodied in a signed document, suggested that the acknowledgement arose at the date of the document. Although the respondent had relied upon the defence in respect of the appellants’ failed application to lift the stay, that did not renew the acknowledgement . For a renewal, it would ordinarily be necessary to write and sign something that affirmed or repeated the acknowledgement , such as amending and reserving the defence, or confirming its contents in a signed affidavit or witness statement.
(3) Had it not formed part of “without prejudice” negotiations, the offer to purchase the freehold of the property would have amounted to an acknowledgement that was sufficient to satisfy section 29(2) since an offer to purchase an interest, even expressly subject to contract, would ordinarily amount to an acknowledgement of the offeree’s title to that interest: Edgington v Clark [1964] 1 QB 367 applied. However, the letter in question was inadmissible because it had been written with a view to settling the earlier proceedings. The principles that governed the admissibility, in subsequent proceedings, of a statement that was made in “without prejudice” negotiations to settle an earlier action, should be the same as would govern its admissibility in those earlier proceedings. Although a statement might be admissible if it was not connected with the issues in the case that formed the subject matter of the negotiations, or if it fell outside the area of compromise, that exception did not apply to an admission of title in a without–prejudice letter in an action that related to the same land, or to a statement in the same sentence that contained the actual offer to settle: Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 and Bradford & Bingley plc v Rashid [2006] UKHL 27; [2006] 1 WLR 2066 considered. Nor was it possible to admit a statement as evidence that an admission had been made, rather than evidence of the truth of that admission; such a distinction was too subtle to apply in practice: Muller v Linsley & Mortimer [1996] PNLR 74 not followed. Accordingly, the appellants could not rely upon the 1992 offer as evidence that an acknowledgement of title had been made where it was inadmissible as evidence of the appellants’ ownership. There were no public policy grounds for overriding the “without prejudice” rule in the instant case, or any impropriety in the respondent’s conduct, either generally or in relying upon the rule.
Richard Wilson QC and Christopher Jacobs (instructed by Hodge Jones & Allen) appeared for the appellants; Peter Crampin QC and Simon Williams (instructed by RFB Solicitors) appeared for the respondent.
Sally Dobson, barrister
