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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