Land registration – Adverse possession – Without prejudice correspondence – Respondents applying to be registered as proprietors of land adjacent to their home by adverse possession – First-tier Tribunal excluding correspondence and granting application on ground that respondents in adverse possession for 10 years at date of application – Appellant registered proprietor appealing – Whether excluded correspondence being without prejudice – Appeal dismissed
The respondents were the registered proprietors of 34 Ribchester Road, Lytham St Annes, Lancashire. It stood on a strip of land which used to be a railway siding. There were five dwellings on the strip, built after plots were sold off individually. The respondents bought their land in 1993.
In April 2018, the appellant bought what remained of the railway land, which included two separate parcels, immediately to the south-west and north-east of the respondents’ land. In June 2018, the respondents applied to HM Land Registry to be registered as proprietors of those two areas (the north plot and the south strip) by virtue of adverse possession.
The appellant, as registered proprietor of both, served a counter-notice and required the application to be dealt with under para 5 of Schedule 6 to the Land Registration Act 2002. The matter was referred to the First-tier Tribunal (FTT).
The FTT excluded from the appellant’s evidence some email correspondence between its director (W) and the respondents and a note of a telephone conversation between W and the first respondent, together with the references to that material in the appellant’s statement of case and in W’s witness statement.
The FTT decided that the respondents had been in adverse possession of the disputed land for 10 years at the date of the application and granted their application, holding that they had met the conditions in paras 5(2) and (4) of Schedule 6 to the 2002 Act as they believed they owned the disputed land following representations made to them by the vendor in 1993.
The appellant appealed, contending that the excluded correspondence was not without prejudice correspondence and, had it been admitted, the appellant would have shown that the respondents did not believe they owned the disputed land; and that the conditions in paragraphs 5(2) and 5(4) had not been met.
Held: The appeal was dismissed.
(1) Schedule 6 to the Land Registration Act 2002 provided that, where a person had been in adverse possession of registered land for 10 years, he or she might apply to be registered as proprietor, whereupon notice would be served upon the registered proprietor. The registered proprietor might serve a counter-notice requiring the application to be dealt with under para 5 of the schedule, so that the application would fail unless the squatter could meet any of the conditions set out in that paragraph. The condition in para 5(2) was that the claim arose from estoppel; paragraph 5(4) required a belief in their ownership because of a mistake about the true position of the boundary: see Dowse v Bradford Metropolitan District Council [2021] UKUT 202 (LC).
The appeal rested on the appellant’s argument that the judge should not have excluded, at the start of the hearing, the email correspondence and W’s telephone attendance note of telephone conversations.
(2) It was trite law that without prejudice material, with irrelevant exceptions, was not to be put in evidence, in order to encourage settlement and enable the parties to speak freely and frankly in their attempts to settle. Without prejudice material need not be labelled as such. It was not necessary for the parties to be already engaged in litigation, and they might be in a contractual or other relationship (such as employer and employee). What was critical was the proximity of the subject matter of the negotiations to the subject of the litigation. The crucial consideration was whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree: Barnetson v Framlington Group Ltd [2007] EWCA Civ 502 considered.
The existence of a dispute and of an attempt to compromise it were at the heart of the rule whereby evidence might be excluded (or disclosure of material precluded). The rule did not depend upon disputants already being engaged in litigation. But there had to be, as a matter of law, a real dispute capable of settlement in the sense of compromise (rather than in the sense of simple payment or satisfaction): Bradford & Bingley Plc v Rashid [2006] 1 WLR 2006; [2006] PLSCS 166 followed.
(3) By themselves, the emails looked like a sale and purchase negotiation that started from cold. But the respondents’ position was that it did not do so. This was a case where someone had purchased land knowing there was a squatter on it and, in order to avoid litigation, offered to sell. The tribunal was hampered by the absence both of written reasons for the judge’s decision and of a transcript.
It was clear from the appellant’s statement of case in the FTT that it did not at that point deny that the respondents had encroached on the land, although its case was that the encroachment did not amount to adverse possession. There was no documentation which showed that the appellant was aware, not only at the start of the litigation but also when it purchased in April 2018, that they were occupying the land.
(4) The excluded telephone conversations were squarely concerned with the dispute that the parties eventually litigated, namely whether the respondents contracted to purchase the disputed plots when they bought the plot for their house. There was, on the appellant’s case, both an allegation by the respondents that they had bought the land, and later a retraction of that claim. The potential for litigation was obvious, as was the background to the first respondent’s expressed willingness to purchase the plot; it formed the background to the emails that followed, either to be put to bed by a congenial purchase or to reignite into litigation, as it did.
These were not simply negotiations about a purchase where the only issue was price; if the problem of encroachment could not be resolved by a sale and purchase then conflict was inevitable and litigation was possible. The conflict was there and it explained why the offer for sale was made and a quick sale was wanted.
Accordingly, the excluded correspondence together with the references to it in the appellant’s statement of case in the FTT and in witness statements were correctly excluded by the judge. Consequently, the decision of the FTT would stand.
Oliver Newman (instructed by Direct Access) appeared for appellant; Admas Habteslasie (instructed by Air Passengers Solicitors of Horsham) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Windmill Holdings SPV Ltd v Adams and another
