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FOURTH
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
52512/09
by Agnes OFULUE
against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on
23 November 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Lawrence Early,
Registrar,
Having
regard to the application lodged on 10 September 2009,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mrs Agnes Ofulue, is a Nigerian national who was born in
1939 and lives in Middlesex. She was represented before the Court by
Mr J. Kunwardia of Hodge Jones & Allen, a lawyer practising in
London.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant and her husband became the registered owners of a dwelling
house in London (“the property”) in 1976. The current
value of the property is GBP 550,000.
- The
applicant and her husband let the property to tenants and in 1979
they moved to Nigeria. In 1981 one of the tenants permitted a Mr B
and his daughter to occupy the property. In 1983 the applicant’s
husband visited the property and discovered the Bs living there.
- On
15 June 1989 the applicant and her husband began possession
proceedings against the Bs in the High Court. In their Statement of
Claim they asserted that they were the owners and were entitled to
possession of the property. In their Defence and Counterclaim, served
on 18 July 1990, the Bs admitted the Ofulues’ title to the
property but submitted that they were entitled to a fourteen-year
lease. In a letter dated 14 January 1992, headed “without
prejudice”, the Bs offered to buy the freehold of the property
for GBP 35,000. The applicant and her husband rejected the offer but
took no further action. On 26 April 2000 the proceedings were
automatically stayed under the provisions of the Civil Procedure
Rules.
- On
30 September 2003 the applicant and her husband issued fresh
proceedings against Ms B in the County Court for possession of the
property. Ms B challenged the claim under the Limitation Act 1980
(“the 1980 Act”), which provided that a person could not
bring an action to recover land after the expiration of twelve years
of adverse possession by another. In October 2005 the County Court
judge held that the applicant and her husband were statute-barred
from bringing an action for recovery of the property. He found that
since 1987 Ms B had been in factual possession of the property, she
had the requisite intention to possess, and the applicant and her
husband had known that she was in possession and yet the steps taken
to remove her had been “slight in the extreme”.
Consequently, the court held that the applicant and her husband’s
title to the property had been extinguished in 1999 or at least
before 2 October 2000, which was the date on which the Human Rights
Act 1998 came into force.
- The
applicant and her husband appealed to the Court of Appeal. The Court
of Appeal followed the recent judgment in J.A. Pye (Oxford) Ltd v.
the United Kingdom, no. 44302/02, 15 November 2005, in which the
Grand Chamber held that the limitation period in the case of adverse
possession was compatible with Article 1 of Protocol No. 1. The Court
of Appeal found no “special circumstances” in the
applicant’s case to justify departing from Pye. In
particular, it held that the admission of title in the Defence in the
earlier proceedings did not constitute an acknowledgment of title for
the purposes of section 29 of the 1980 Act (see paragraph 13 below)
or, alternatively, if the admission did constitute an acknowledgement
of title, it did not defeat the adverse possession claim as it was
served more than twelve years before the later claim was brought. The
Court of Appeal further held that although the letter of 14 January
1992 was made less than twelve years before the date on which the
later possession proceedings had been initiated, and amounted to an
effective acknowledgement of title for the purposes of section 29 of
the 1980 Act, it could not be relied on in evidence as it had been
written “without prejudice” with a view to settling the
earlier proceedings.
- The
applicant was granted leave to appeal to the House of Lords. The
House of Lords (with Lord Scott of Foscote dissenting) held that the
admission of title in the Defence and the letter of 14 January 1992
were both capable of amounting to acknowledgements of title for the
purposes of section 29 of the 1980 Act. However, the House of Lords
agreed with the Court of Appeal that the Defence could not assist the
applicant as it was served more than twelve years before the later
claim was introduced. Moreover, it also agreed that the letter of 14
January 1992 could not be admitted in evidence as it had been written
“without prejudice”.
- Lord
Neuberger of Abbotsbury stated that:
“it appears to me that, save perhaps where it is
wholly unconnected with the issues between the parties to the
proceedings, a statement in without prejudice negotiations should not
be admissible in evidence, other than in exceptional circumstances
such as those mentioned in Unilever [2000] 1 WLR 2436,
2444D-2445G. It is not only that the offer contained in the relevant
sentence of the Letter was connected with the issue between the
parties in the earlier proceedings. It is also that the title to the
property was in issue in the earlier proceedings in the sense that
the Ofulues claimed the unencumbered freehold, whereas the [Bs] were
contending that the freehold was subject to their legal or equitable
interest. Bearing in mind the point made in the passage quoted above
from Robert Walker LJ [2000] 1 WLR 2436, 2448-2449, it seems to me
that it would set an unfortunate precedent if your Lordships held
that an admission of the claimants’ title in a without
prejudice letter was sufficiently remote from the issues in a
possession action relating to the same land as to be outside the
rule.”
- In
his dissenting opinion Lord Scott of Foscote expressed his view that
the result of the appeal represented a marked extension of the
“without prejudice” rule that previous judicial authority
did not warrant and public policy did not require. In particular, he
noted that the applicant’s ownership of the property had been
admitted in the earlier proceedings and the previous judicial
authority could not be taken to permit the extension of the “without
prejudice” rule to cover a statement of fact which, far from
being an issue in the litigation, was common to the pleaded cases of
both parties.
B. Relevant domestic law and practice
1. Adverse possession
- At
the relevant time, section 15 of the Limitation Act 1980 provided:
“(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 to him or, if it first accrued
to some person through whom he claims, to that person...
(6) Part I of Schedule 1 to this Act contains provisions
for determining the date of accrual of rights of action to recover
land in the cases there mentioned.”
- Paragraph
1 of Schedule 1 provided:
“Where a person bringing an action to recover
land, or some person through whom he claims, has been in possession
of the land, and 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 discontinuence.”
- Section
29 provided as follows:
“(1)Subsections
(2) and (3) below apply where any right of action (including a
foreclosure action) to recover land or an advowson or any right of a
mortgagee of personal property to bring a foreclosure action in
respect of the property has accrued.
(2)If the person in possession of
the land, benefice or personal property in question acknowledges the
title of the person to whom the right of action has accrued—
(a)the right shall be treated as
having accrued on and not before the date of the acknowledgment; and
(b)in the case of a right of
action to recover land which has accrued to a person entitled to an
estate or interest taking effect on the determination of an entailed
interest against whom time is running under section 27 of this Act,
section 27 shall thereupon cease to apply to the land.
(3)In
the case of a foreclosure or other action by a mortgagee, if the
person in possession of the land, benefice or personal property in
question or the person liable for the mortgage debt makes any payment
in respect of the debt (whether of principal or interest) the right
shall be treated as having accrued on and not before the date of the
payment.”
- The
same limitation provisions applied to both registered and
unregistered land. In the case of unregistered land, section 17 of
the 1980 Act provided that, on the expiration of the limitation
period regulating the recovery of land, the title of the paper owner
was extinguished. In the case of registered land, section 75(1) of
the Land Registration Act 1925 provided that, on the expiry of the
limitation period the title was not extinguished but the registered
proprietor was deemed to hold the land thereafter in trust for the
squatter.
- Halsbury’s
Laws of England (Fourth Edition, Reissue 1998) set out the law in the
following terms:
“258. When the owner of land has been out of
possession, and a stranger has been in possession, for a period
sufficient to bar the owner’s right to re-enter or to recover
possession by action, the owner’s title is extinguished, and
the stranger acquires a title which is good against all the world,
including the former owner.
The Limitation Act 1980 operates negatively to bar the
right and extinguish the title of the true owner, and does not effect
a transfer of his estate to the stranger; the new title depends on
the principle that possession gives title, coupled with the
extinction of the rights of the former owner, and is subject to any
easements [etc ..] which remain unextinguished.”
2. The “without prejudice” rule
- In
giving his opinion in the present case, Lord Neuberger of Abbotsbury
described the “without prejudice” rule as follows:
“The normal rule is, of course, that statements
made in negotiations entered into between parties to litigation with
a view to settling that litigation are inadmissible and therefore
cannot be given in evidence. In Rush & Tompkins Ltd v Greater
London Council [1989] AC 1280, 1299, Lord Griffiths explained
that the rule was “founded upon the public policy of
encouraging litigants to settle their differences rather than
litigate them to a finish". As stated by Robert Walker LJ in
Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436,
2442C-D, the rule also rests on “the express or implied
agreement of the parties themselves that communications in the course
of their negotiations should not be admissible in evidence".
As Robert Walker LJ went on to point out at [2001] 1 WLR
2436, 2444C, “there are numerous occasions on which ... the
without prejudice rule does not prevent the admission into evidence
of what one or both of the parties said or wrote". At [2001] 1
WLR 2436, 2444D-2445G, he then set out and explained eight of “the
most important instances". Apart from agreement (e.g. where the
negotiations are “without prejudice, save as to costs”),
the principal occasions he identified were where the negotiations are
said to have resulted in a contract, an estoppel, or a
misrepresentation, or where they are said to include an impropriety
or an explanation for delay.”
COMPLAINTS
- The
applicant complained that the application of the “without
prejudice” rule violated her rights under Article 6, Article 10
and Article 1 of Protocol No. 1 to the Convention.
- With
regard to the complaint under Article 10, she submitted that in
finding that the “without prejudice” rule applied to the
letter of 14 January 1992 the House of Lords violated her right to
freedom of expression because they failed to strike a fair balance
between her rights and the public policy justification for applying
the rule.
- The
applicant also complained that her rights under Article 6 § 1 of
the Convention had been violated as she was not afforded a reasonable
opportunity to present her case under conditions that did not place
her at a substantial disadvantage.
- Finally,
the applicant complained that there had been a violation of her
rights under Article 1 of Protocol No. 1 as she was deprived of her
property following an unforeseeable and unlawful application by the
domestic courts of the “without prejudice” rule. She
further complained that the application of the “without
prejudice” rule did not serve a legitimate public interest. In
the alternative, she complained that the interference with her rights
did not strike a fair balance between the demands of the general
interest of the community and the requirements of the protection of
the individual’s fundamental rights.
THE LAW
A. Alleged violation of Article 6 of the Convention
- The
applicant complained under Article 6 § 1 of the Convention that
she was not afforded an opportunity to present her case under
conditions which did not place her at a substantial disadvantage. In
particular, she submitted that she was prevented from adducing the
only evidence that would have enabled her to retain her freehold
property.
- Article
6 § 1 provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
-
The Court has consistently held that while Article 6 guarantees a
right to a fair trial, it does not lay down any rules on the
admissibility of evidence, which is primarily a matter for regulation
under national law (see, for example, Schenk v. Switzerland,
12 July 1988, § 46, Series A no. 140 and Miailhe v. France
(no. 2), 26 September 1996, § 43, Reports of Judgments
and Decisions 1996 IV). It is not the Court’s task to
substitute itself for the domestic jurisdictions. Rather, the Court’s
function is to determine whether the proceedings in question, taken
as a whole, were fair and whether the rights of the parties were
adequately respected (Miailhe v. France, cited above, §
43).
- In
deciding what evidence is admissible, the domestic courts therefore
enjoy a certain margin of appreciation, although the final decision
as to the observance of the Convention’s requirements rests
with the Court. It must be satisfied that the limitations applied do
not restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right is
impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim
and if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved (Osman
v. the United Kingdom, 28 October 1998, § 147, Reports
1998 VIII, p. 3169, § 147).
- As
the purpose of the “without prejudice” rule is to
encourage litigants to reduce the burden on the courts by settling
their differences rather than litigating them to a finish, it
undoubtedly has a legitimate objective. As to the issue of
proportionality, the Court must assess the contested limitation
placed on the applicant’s rights under Article 6 in the light
of the particular circumstances of the case.
- The
Court observes that in the present case the applicant had the benefit
of adversarial proceedings. At the various stages of those
proceedings she was represented by counsel who was able to submit the
arguments he considered relevant to the applicant’s case. There
is therefore no indication that the applicant was not given a fair
opportunity to present her case at any stage of the proceedings.
- With
regard to the letter of 14 January 1992, the domestic courts fully
considered the arguments put forward by the applicant. However, the
majority of the House of Lords were of the opinion that carving out
an exception to the “without prejudice” rule to permit
the admission of the letter of 14 January 1992 would not be
consistent with the public policy behind the rule. The majority were
particularly concerned that creating such an exception could
potentially cause huge practical difficulties while also whittling
down the protection afforded to parties to litigation.
- The
Court does not consider that the very essence of the applicant’s
right to a fair trial was impaired. While the outcome of the
proceedings was unfavourable to the applicant, it is clear that both
the first-instance and appellate courts carefully weighed the demands
of the applicant against the demands of the general interest before
concluding that the letter could not be admitted. In view of all the
circumstances of the case, the Court finds that this decision did not
render the proceedings as a whole unfair.
- In
conclusion, the Court finds the complaint under
Article 6 § 1 of the Convention to be manifestly ill-founded. It
should therefore be rejected under Article 35 §§ 3 and 4 of
the Convention.
B. Alleged violation of Article 1 of Protocol No. 1 to the
Convention
- The
applicant also complained that there had been a violation of her
rights under Article 1 of Protocol No. 1 as she was deprived of her
property following an unforeseeable and unlawful application by the
domestic courts of the “without prejudice” rule. She
further complained that the application of the “without
prejudice” rule did not serve a legitimate public interest. In
the alternative, she complained that the interference with her rights
did not strike a fair balance between the demands of the general
interest of the community and the requirements of the protection of
the individual’s fundamental rights.
- Article
1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Court recalls that in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford)
Land Ltd v. the United Kingdom [GC], no. 44302/02, § 66,
ECHR 2007 X, it held that the loss of title following the
application of the laws on adverse possession amounted to a “control
of use of land” within the meaning of the second paragraph of
Article 1 of Protocol No. 1 and not a “deprivation of
possessions”. The Grand Chamber accepted that the limitation
period for actions for recovery of land – and the
extinguishment of title at the end of the limitation period –
pursued a legitimate aim in the general interest. Furthermore, it
concluded that on the facts of the case before it, the fair balance
required by Article 1 of Protocol No. 1 to the Convention was not
upset. In particular, it observed first, that the relevant
legislation had been in force for many years before the applicant
acquired the land; secondly, the limitation period was relatively
long and very little action on the part of the applicant would have
stopped time running; thirdly, a requirement of compensation would
sit uneasily alongside the very concept of limitation periods; and
fourthly, that applicants in adverse possession cases were not
without procedural protection as it was open to them throughout the
limitation period to bring an action for possession or, on the expiry
of the limitation period, to argue before the domestic courts that
the occupiers of their land had not been in adverse possession.
- In
the present case, as in Pye, there had been a control of the
use of the applicant’s land and that control of use was in
pursuit of a legitimate aim, namely that of ensuring legal certainty
and finality and protecting potential defendants from stale claims.
The question which the Court must address is therefore whether the
decision not to admit the letter of 14 January 1992 upset the
fair balance found to exist in Pye between the demands of the
general interest and the interest of the individuals concerned.
- The
Court observes that the circumstances which the Court considered
relevant when assessing proportionality in Pye are equally
applicable to the present case. First, it is not open to the
applicant to say that she was not aware of the relevant legislation,
or that she was surprised by its application in this case. In
particular, the Court observes that there is no suggestion that
during the twelve years prior to loss of title the applicant had been
relying on the letter of 14 January 1992 to protect her interests.
Secondly, the Court recalls its finding in Pye that the
limitation period was relatively lengthy and very little action would
have been required on the part of the applicant to have stopped time
from running. Indeed, the applicant and her husband twice brought
possession proceedings against the Bs so it is clear that they were
aware of what was required of them.
- The
Court recalls that the Grand Chamber in Pye also found that
applicants in adverse possession cases were not without procedural
protection as it was open to them throughout the limitation period to
bring an action for possession or, on the expiry of the limitation
period, to argue before the domestic courts that the occupiers of
their land had not been in adverse possession. In the present case it
was clearly open to the applicant to bring an action for possession
at any time and, as indicated above, she did so on two separate
occasions. Moreover, there is no indication that the delay in
bringing the second set of proceedings was due to any reliance on the
letter of 14 January 1992.
- It
was also open to the applicant on the expiry of the limitation period
to argue that the Bs had not been in adverse possession. The only
restriction on this right was the domestic court’s refusal to
admit in evidence the letter of 14 January 1992. However, the Court
has already held that this decision did not render the proceedings as
a whole unfair in violation of Article 6 § 1 of the Convention.
It was for the domestic courts to balance the interests of the
applicant against the interests of public policy and they did so in a
carefully reasoned decision, taking full account of the arguments put
forward by the applicant.
- Accordingly,
the Court finds the complaint under Article 1
of Protocol No. 1 to the Convention to be manifestly ill-founded. It
should therefore be rejected under Article 35 §§ 3 and 4 of
the Convention.
C. Alleged violation of Article 10 of the Convention
- The
applicant’s complaint under Article 10 of the Convention was
not raised before the domestic courts and the Court therefore finds
that she has failed to exhaust domestic remedies. It should therefore
be rejected under Article 35 § 1 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
