RECTIFICATIONStephanie Tozer

Falcon Chambers

February 2016

ESSENTIAL ELEMENTS

2 different types of rectification:

Common Mistake

Unilateral Mistake +

Unconscionable conduct

UNILATERAL MISTAKE

Difficult in arms length transactions, but see

Littman v Aspen Oil (Broking) Ltd [2005] EWCA

Civ 1579

QR Sciences Ltd v BTG International Ltd [2006]

EWHC 670

(but cf Taylor Barnard v Tozer [1984] 1 EGLR 21)

COMMON MISTAKE

Questions 1- 3

Objective common intention

Outward expression of accord

Continues until execution

Mistake

Leading case: Chartbrook v Persimmon [2009] UKHL 38.

ANSWERS:

Q1: NO

Q2: NO

Q3: NO

SUBJECTIVE INTENTION

Unclear whether C can obtain rectification to objective

consensus, if contrary to its subjective intention at time

Crossco No 4 Unlimited v Jolan [2011] EWHGC 803 at 253and Tartsinis v Navona Management Co [2015] EWHC

57at 90 suggests that C can, but ?

“

”

The requirements of an “outward expression of

accord” and “common continuing intention” are

not separate conditions, but two sides of the same

coin, since an uncommunicated inward intention is

irrelevant

Daventry District Council v Daventry and District Housing Ltd

[2011] EWCA Civ 1153 at 80

Questions 4 and 5

BUT:

Expression of accord need not be express.

Acceptance by conduct sufficient.

Q4: YES

Accord can even be inferred from a failure to discuss

a point: Ashcroft v Barnsdale [2010] EWHC 1948

Q5: YES

Ashcroft v Barnsdale [2010] EWHC 1948 requires care:

Probably only where parties negotiating variation of an existing relationship

Appears wrong at 16:

“the requirement of an outward expression of accord.. may require some modification … where the mistake related to the omission of a particular word or phrase…”

THIRD PARTIES

BENEFIT:

S 63 LPA 1925:

“Every conveyance is effectual to pass all the

estate, right, title, interest, claim and demand

which the conveying parties… have, in, to or on

the property conveyed….”

Subject to contrary intention

If not, express assignment

Questions 6 and 7

Meaning of “the property conveyed”?

Berkeley Leisure Gp v Williamson [1996] EGCS 18, CA

Malory Enterprises Ltd v Cheshire Homes [2002] Ch 216 at 68

Harbour Estates v HSBC Bank plc [2004] EWHC 1714 at 29

Drake v Fripp [2011] EWCA Civ 1279

Relevant factors probably include:

Whether separate title

Size proportionate to rest of land conveyed

Q6: NO

Q7: YES

BURDEN

Questions 8 and 9

Bona fide purchaser for value without notice

S 29 Land Registration Act 2002

“If a .. disposition … is made for valuable

consideration, … registration has the effect of

postponing to the interest under the disposition any

interest affecting the estate immediately before

the disposition whose priority is not protected at the

time of registration.”

S 11 (first registration) similar

Q8: NO

Actual occupation

Chaudhary v Yavuz [2011] EWCA Civ 1314

Q9: NO

Any continuing role for notice?

Ahmad v Secret Garden (Cheshire) Ltd [2013] EWCA

Civ 1005 at 32

“Rectification is an equitable remedy. The court

may refuse it if it thinks fit to do so. This may be

because an innocent third party has acquired

rights”

PRACTICAL TIPS

EVIDENCE

Oun v Ahmad [2008] EWHC 545

Deliberate decision not to include in written document

fatal

PROCEDURE

Rarely suitable for SJ: Dunlop Haywards v

Erinaceous [2009] EWCA Civ 354; Hogg v Eddery

[2015] EWHC 942

Part 8 only where unopposed

MEDIATION

Simmons Gainsford LLP v Shah [2008] EWHC 2554

Stephanie Tozer

Falcon Chambers

020 7353 2484

tozer@falcon-chambers.com