1st Mar 2023 | News
Robert Strang and Katharine Bailey (led by Ramesh Maharaj SC) appear today in the Privy Council on behalf of the Appellant in the case of Porter & Anr (Respondents) v Robert Stokes (Personal Representative of the Estate of Walter Edward Stokes, deceased) (Appellant).
This will be the first time the apex court has considered the Court of Appeal’s exposition of the law of rectification in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd  EWCA Civ 1361, in which judgment Leggatt LJ (as he then was) expounded the law as follows: if the parties, in executing the document in question, were purporting to carry out a prior binding agreement then the court’s primary task is to determine objectively the intent of the prior binding agreement, but in other cases the question for the court is whether the parties held a common subjective intention (i.e. the same actual intention, to be established as a psychological fact) with the qualification that there must have been an outward expression of accord, so that the parties understood each other to share that intention.
In this appeal, the Respondents allege that the document which is the subject matter of the claim for rectification (a deed of conveyance) was intended to give effect to a prior written agreement (an agreement for sale) and thus contend that an objective test of intention must be applied.
By contrast, the Appellant’s case – which the trial judge accepted, but the Court of Appeal did not – is that the prior written agreement itself contained a mistake and thus did not record the parties’ common intention and, as such, intention cannot be ascertained by an objective construction of that prior written agreement. Further, the Appellant says that the trial judge’s approach was the right one in that she considered both documentary evidence and witness testimony to establish the parties’ subjective intention, including evidence of subsequent conduct following the execution of the deed.