Claims for rectification

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Claims for rectification
  • What is rectification?
  • Establishing a claim for rectification
  • Rectification for unilateral mistake
  • Standard of proof in a rectification claim
  • Analysing the rectification claim—a subjective approach
  • Background—the objective/subjective conundrum
  • FSHC—Court of Appeal confirms subjective approach
  • Can the common intention be tacit?
  • Admissible evidence in rectification claims
  • More...

Claims for rectification

This Practice Note outlines when a claim for rectification may be appropriate, what you need to establish to succeed on such a claim and what evidence may be admissible in support.

In Tartsinis v Novana, Leggatt J as he then was questioned the authority of Lord Hoffman’s dicta in Chartbrook v Persimmon Homes (as followed in Daventry v Daventry), with regard to whether the court should apply an objective or a subjective test when analysing claims for rectification. In 2019, Leggatt LJ, gave the Court of Appeal’s unanimous decision in FSHC Group Holdings Ltd v Glas Trust Corporation confirming that the test for the relevant intention of the parties to the document sought to be rectified is a subjective test. In summary:

‘176. [...] before a written contract may be rectified on the basis of a common mistake, it is necessary to show either (1) that the document fails to give effect to a prior concluded contract or (2) that, when they executed the document, the parties had a common intention in respect of a particular matter which, by mistake, the document did not accurately record. In the latter case it is necessary to show not only that each party to the contract had the same actual intention with regard to the relevant matter, but also that there was an outward expression of accord meaning

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