True intentions

In KPMG v Network Rail Infrastructure Ltd [2007] EWCA Civ 363, [2007] All ER (D) 245 (Apr), the Court of Appeal considered the interpretation of a break clause in a lease from which it was apparent that some critical words had been omitted. Lord Justice Carnwath—with whom Sir Paul Kennedy and Lord Justice Mummery agreed—stated at para 8 that the issues for the court were whether that omission could be corrected by any legally permissible technique, or, if not, what meaning should be ascribed to the clause. At first instance the judge upheld Network Rail’s case for rectification based upon mutual mistake, and KPMG appealed.

QUESTION OF CONSTRUCTION

As regards rectification, the Court of Appeal held that the judge had been wrong on the facts to hold that there was convincing proof that the relevant common intention continued up to the grant of the lease in question, and so allowed the appeal on this point.