Correcting past mistakes

• In FSHC Group Holdings Ltd v Glas Trust Corporation Ltd, the Court of Appeal provided welcome clarification in relation to the requirements which must be satisfied if a written document is to be rectified on the basis of common mistake.
• In particular, the court clarified that the obiter remarks made by Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd—that the test for establishing a common intention which was mistakenly not reflected in the written document is objective —do not represent the law.

Rectification is an equitable remedy which applies to written documents which, mistakenly, fail to record what was agreed by the parties. There are two species of rectification: common mistake rectification and unilateral mistake rectification. As regards the former, in brief summary, the claimant must show that:

• the parties had a common continuing intention, whether or not amounting to an agreement,