“Without prejudice letter” can be withheld without breaching fair trial rights
16 December 2010
Ofulue v United Kingdom, Application no. 52512/09 – read judgment
The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in proceedings challenging adverse possession.
The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house. At first instance it was held that the tenants had been in adverse possession for over twelve years and that the applicants’ title had been extinguished before October 2000. The applicant’s claim under Article 1 Protocol 1 failed in the Court of Appeal, who found that it was bound to follow the Strasbourg ruling in JA Pye (Oxford) Ltd v United Kingdom no. 44302/02, § 66, ECHR 2007. In that case the Grand Chamber concluded that the legislative provisions on adverse possession and limitation of claims were Convention compliant. Although UK courts were not necessarily bound by Strasbourg decisions, there were no “special circumstances” justifying departing from that decision (per R (on the application of Ullah) v Special Adjudicator (2004) UKHL 26, (2004) 2 AC 323). As for the without prejudice offer, the Court of Appeal found that the admission of title in the defence did not constitute an acknowledgment for the purposes of the operative provision, Section 29 of the Limitation Act 1980; that in any event the defence had been served more than 12 years before the second proceedings and any acknowledgment did not continue beyond the date of the defence; and that the without prejudice offer could not be relied on. The applicant’s appeal to the House of Lords was also unsuccessful. The HL held that the normal rule was that statements made in negotiations between parties to litigation with a view to settling were inadmissible. The without prejudice rule was “founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish” (Rush & Tompkins Ltd v Greater London Council  AC 1280, 1299). The fact that in the instant case the rule was being invoked in relation to negotiations in earlier proceedings involved no new extension of it. Such a “without prejudice” statement would only be admissible where it was wholly unconnected with the issues in the proceedings.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.
Before the European Court of Rights, 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.
All complaints dismissed. 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. As for the complaint under A1P1, the Grand Chamber had held in Pye v United Kingdom J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], , 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”. It was also accepted in that case 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.
In the Court’s view it had been 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.