In Musst Holdings Ltd v Astra Asset Management UK Ltd [2021] EWHC 3432 (Ch) ('Musst 3432'), Freedman J, under the subheading 'The law on rectification', said, at paragraphs 314 to 316:

'The requirements for rectification were summarised by Peter Gibson LJ in Swainland Builders Ltd v Freehold Properties Ltd [2002] 2 EGLR 71, 74, para 33 (as approved in the House of Lords in Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38 ("Chartbrook") per Lord Hoffmann):

"The party seeking rectification must show that:

(1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified;

(2) there was an outward expression of accord;

(3) the intention continued at the time of the execution of the instrument sought to be rectified;

(4) by mistake, the instrument did not reflect that common intention."

As set out in the recent decision of FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361, [2020] Ch 365, at para 6, "Rectification is an equitable remedy by which the court may amend the terms of a legal document which, because of a mistake, fails accurately to reflect the intention of the parties to it." In the same case, the Court of Appeal confirmed that it is the parties' subjective intentions that are relevant for this purpose, but it is also necessary to establish that there has been some "outward expression of accord" to that effect (see paras 60-61, 72-73).

In Chartbrook supra, at para. 65, Lord Hoffmann stated that in establishing a prior consensus, evidence of subsequent conduct may be of some evidential value, albeit that where the prior consensus was expressed entirely in writing, it was likely to carry very little weight, but it was not inadmissible.'

Musst 3432 was appealed (Musst Holdings Ltd v Astra Asset Management UK Ltd [2023] EWCA Civ 128), but: (a) rectification was not subject to any appeal; (b) the appeal was unsuccessful. 

In My Protection Guru Ltd v Lifesearch Partners Ltd [2026] EWHC 60 (Comm), HHJ Pearce (sitting as a Judge of the High Court) said, at paragraphs 150, 151 and 155 (151.1 will rarely be relevant):

'It is self-evident on my earlier finding that, if clause 17.1 includes within its ambit the oral agreement relating to QLC Leads, the terms of the 2017 Agreement did not reflect the true intention of the parties. This is the starting point for invoking the remedy of rectification, as noted by Peter Gibson LJ in Swainland Builders Ltd v Freehold Properties Ltd [2002] 2 EGLR 71.

The doctrine has certain limits:

151.1. It will not be ordered where the subsequent written agreement was intended to supersede the terms of the earlier agreement...

151.2. It will not (generally) be ordered where the mistake as to the contents of the written agreement can be said to be unilateral rather than mutual...

151.3. It will not be ordered if the conflict between the face of the document and the true intention of the parties can be resolved by applying principles of contractual construction...

...

Rectification is of course an equitable remedy which may be denied in the exercise of the court's discretion. In particular, delay is likely to be a relevant criterion.'

Collatory Case Series

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