John Summers & Elizabeth Fitzgerald consider the impact of Ofulue
It is an important and well known rule of evidence that communications which are expressed to be “without prejudice”, and which are made between parties to a dispute for the purposes of settling the dispute, cannot generally be admitted in evidence.
In Ofulue & Anor v Bossert [2009] UKHL 16, [2009] All ER (D) 119 (Mar) the House of Lords considered the extent to which it was permissible to rely on a “without prejudice” statement written with a view to settling earlier proceedings in the context of an adverse possession claim in which the “without prejudice” statement was said to constitute an acknowledgement of title which stopped time running.
The facts
Mr and Mrs Ofulue had been the registered freehold proprietors of 61 Coborn Road since 1976. In 1981 they went to Nigeria and let the property to tenants. In 1981, Mr Bossert and his daughter were let into occupation by one of the tenants, Ms Osborne. In 1989 Mr and Mrs Ofulue commenced possession proceedings against the Bosserts.
