Robert Strang & Katharine Bailey (Instructed by BDB Pitmans LLP (London)) for the Appellant
By a Deed of conveyance dated 18th August 1982 (“the Deed”) Mr and Mrs Porter acquired a parcel of land (“the main parcel”), lying between the Maracas river to the west and the Maracas Royal Road to the east, from their good friend and neighbour Walter Stokes. The main parcel was separated from the Royal Road mainly by land retained by Walter Stokes (“the retained land”). The only means of access to the main parcel from the Royal Road (or from any other public highway) was along a strip of land (“the strip”) running along the southern boundary of the retained land, connecting the south-east corner of the main parcel with the Royal Road. Although it was already in use for that purpose at the time of the Porters’ acquisition of the main parcel, the strip was neither conveyed to the Porters by the Deed, nor was any right of way over it granted to them.
This curiosity, that the Porters had apparently acquired a landlocked parcel of land with no right of way to or from it, remained apparently unnoticed by either side for the following 24 years, in the sense that it was not mentioned in any surviving document. The strip remained in use as a de facto means of access both to the main parcel and to the retained land, with no complaint by either side. In the meantime Walter Stokes had died in April 1990, and his estate (including the retained land) vested in his son Robert Stokes pursuant to a grant of probate in July 1990.
But in February 2006 the Porters’ attorneys wrote to Robert Stokes suggesting that the Deed had by mistake omitted to include the strip as part of the land conveyed, and inviting him to execute a deed of rectification to put that mistake right. Robert’s refusal to do so led to this claim by the Porters for rectification of the Deed, issued in October 2007 and tried by Charles J in November 2012. Charles J, in her judgment in December 2013, dismissed the claim. This was followed by an appeal heard in October 2018 by Bereaux, Jamadar and Pemberton JJA, leading to their unanimous decision in June 2019 to reverse the judge and make the order for rectification sought by the Porters.
The Parties’ Cases
In bare outline the parties’ cases at trial were as follows. The Porters relied upon a prior binding agreement for sale dated 15th May 1982 (“the Contract”) which included the strip as part of the land agreed to be sold. They also relied upon indications in the Deed and its accompanying plan which suggested that, apart from the mistaken exclusion of the strip by the omission of three key words, it was intended to be included. In particular they relied upon the express reservation in the Deed of a right of way over the strip in favour of Walter Stokes, for the benefit of the retained land, which made no sense if he was not parting with the strip.
Robert Stokes’ case was that the Contract was itself the result of a mistake in including the strip. That mistake was spotted by Robert Stokes after the Contract was made and, to put the matter right, the Contract was allowed to expire unperformed, followed by the execution of the Deed which correctly excluded the strip from the land being conveyed. Robert acknowledged that the Porters enjoyed a right of way along the strip to the main parcel, not by virtue of the Deed, but by prescription.
There were other subsidiary issues in the proceedings, including a claim by the Porters to adverse possession of a separate triangular piece of land, which failed, and by Robert Stokes that the Porters had obstructed the strip, which partly succeeded. But they have all been resolved by the courts below and were of no real consequence for the issue of rectification, with which the Board is solely concerned.
A reading of the careful reserved judgments of Charles J and Bereaux JA (with which his colleagues agreed) reveals a sharp divergence between them in the relative weight which they accorded to the oral evidence (on which Charles J placed her main emphasis) and the surviving documents (on which the Court of Appeal relied almost exclusively). It will be necessary to explore that divergence in some detail in due course. But a careful review of the surviving documents is at least the appropriate starting point in any case in which the trial took place 30 years after the relevant events, following the death of a principal actor, Walter Stokes. More to the point it was 24 years before the emergence of the present dispute gave anyone the impetus to try and remember the detail of what at the time had been just a routine conveyancing transaction between friends. Thanks in part to the excellent custodianship of the Deeds Registry of Trinidad and Tobago the main conveyancing documents and plans have survived, even to the point where, during the hearing of this appeal, coloured versions of the key plans were promptly made available by email from Trinidad whenever requested by the Board during argument. This speedy trans-Atlantic co-operation in real time has been greatly appreciated. The key documents will now be described broadly chronologically.