The couple bought the land on which they built their home in 1993. Although they did not formally own the adjoining plots, they treated them as their own, using them as their drive and as part of their garden. In 2018, the registered owner of the plots asserted that the couple had encroached onto them unlawfully.

After a hearing, the First-tier Tribunal (FTT) found that the couple were entitled to be registered as the plots’ legal owners. It did so on the basis that they had established so-called squatters’ rights over the plots, having enjoyed unhindered possession of them, as of right, for more than 10 years.

The FTT found that they genuinely believed that the plots formed part of the land they had purchased in 1993. On the basis of that belief, they had acted to their detriment in spending substantial sums of money on incorporating the plots into their property.

Challenging that outcome, the registered owner pointed to prior email and telephone correspondence in which offers and counter-offers were made with a view to the couple purchasing the plots. The correspondence was said to indicate that the couple held no genuine belief that they owned the plots.

Dismissing the appeal, however, the Upper Tribunal found that the correspondence benefited from litigation privilege and had thus rightly been excluded from evidence by the FTT. Given the accusation of encroachment that the registered owner had made, the correspondence was redolent with controversy and the potential for subsequent litigation was by then already obvious.