Court of Appeal

Published February 11, 2008

Ofulue and Another v Bossert

Before Lord Justice May, Lady Justice Arden and Sir Martin Nourse

Judgment January 29, 2008

Where a party contended that a right to property had been breached, the English court had to apply a margin of appreciation in taking into account the jurisprudence of the European Court of Human Rights at Strasbourg.

Absent special circumstances, the English court should follow a decision of the Strasbourg court which had already concluded that the domestic law under consideration complied with the European Convention on Human Rights because it served a legitimate aim and was proportionate.

The Court of Appeal so stated dismissing the appeal of the claimants, Emmanuel Ofulue and Agnes Ofulue, from Judge Levy, QC, who, in Central London County Court on October 28, 2005, declared that their title to the property at 61 Coburn Road, Bow, London, was extinguished by adverse possession and ordered an amendment of the title to show the defendant, Erica Josephine Bossert, as the registered proprietor.

The defendant’s father had died in 1996. The judge found, inter alia, that the defendants had taken actual possession of the property in 1987 and had an intention to do so, that the claimants had known since 1987 that the defendants were in possession, that the steps taken to remove them were slight in the extreme and that the claimants’ title was extinguished in 1999.

Mr Richard Wilson, QC and Mr Christopher Jacobs for the claimants; Mr Peter Crampin, QC and Mr Simon Williams for the defendant.

LADY JUSTICE ARDEN referred to R v Director of Public Prosecutions, Ex parte Kebilene ([2000] 2 AC 326, 380-381).

The concept of margin of appreciation was employed by the Strasbourg court because under article 1 of the Convention, each of the contracting states had responsibility for ensuring that human rights within its jurisdiction were observed; the function of the Strasbourg court was to lay down minimum guarantees. Its use in article 1 cases was due to the fact that the concept of the right to property varied considerably in different contracting states.

In Pye v United Kingdom (Application No 44302/02) (The Times November 23, 2005) the two key features were the margin of appreciation and legitimate aim and proportionality.

The Strasbourg court had held that the right to property in article 1 of Protocol 1 to the Convention was engaged and that the legislative provisions for the extinction of title and its vesting in another person, who had been in adverse possession, were within that doctrine.

That meant that the Strasbourg court accepted that it was, in general, open to the national authorities to determine the content of those rules.

Since the period of limitation was fixed by statute in the United Kingdom, the question of the length of time for which adverse possession must take place was one which Parliament was entitled to decide, provided that the period so fixed served a legitimate aim and was proportionate.

The Strasbourg court accepted that the national authorities could in general determine the rules for the extinction of title as a result of the occupation of the land by a person who was not the true owner.

That determination applied to all decisions on adverse possession and it was not open to the Court of Appeal not to follow that determination because the case was distinguishable on its facts.

For the doctrine of the margin of appreciation to be inapplicable, the results would have to be so anomalous as to render the legislation unacceptable and that had not been demonstrated in the present case.

Solicitors: White Ryland, Hammersmith and Hodge Jones & Allen, Camden Town; RFB.

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