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. 

A few additional citations/quotations can be provided:

(1) in National Union of Rail, Maritime and Transport Workers v Tyne and Wear Passenger Transport Executive (t/a Nexus) [2024] UKSC 37; [2025] AC 1222; [2024] 3 WLR 909, the Supreme Court addressed the requirements for rectification. Lord Leggatt and Lady Simler JJSC, with whom, Lord Lloyd-Jones, Lord Sales and Lord Burrows JJSC agreed, addressed: (a) the basis for rectification; (b) the need for outward accord; and (c) the relationship with the construction of the contract, at paragraphs 26 to 35. Under the heading 'The nature of rectification', it was stated, at paragraphs 26 to 35:

'The first and fundamental point is that the basic role of rectification is not to correct mistakes in transactions, but to correct mistakes in documents recording transactions. As explained in Snell's Equity, 34th ed (2020), para 16-001:

“Where the terms of a written instrument do not accord with the true agreement between the parties, equity has the power to reform, or rectify, that instrument so as to make it accord with the true agreement. What is rectified is not a mistake in the transaction itself, but a mistake in the way in which that transaction has been expressed in writing.”

In short, rectification is about “putting the record straight”: Allnutt v Wilding [2007] BTC 8003, at para 11 (Mummery LJ) .

This point can sometimes be obscured by the ambiguity of the word “agreement” (or “contract”). In its primary meaning the word refers to a transaction involving an exchange of promises. But the word is also often used to refer to a document which records such a transaction. Thus, references to the “letter agreement” may denote either the letter dated 10 October 2012 described at para 4 above or the promises recorded in that letter. It is important not to lose sight of this distinction.

A second point to note is that, although claims for rectification are typically aimed at rectifying written contracts, the jurisdiction to rectify is quite general and is not confined to documents of particular types. As described in Snell's Equity, paras 16-004-16-006, documents which have been rectified include mercantile documents such as a policy of marine insurance, a bill of exchange, a transfer of shares, and a bill of quantities; conveyancing documents such as a conveyance and a lease; and unilateral instruments, such as marriage settlements, trust deeds, voluntary dispositions by trustees, and a notice of severance of a joint tenancy. There is also a power conferred by statute to rectify a will. We will mention later examples of documents which have been held to be rectifiable even though they do not themselves record any legally enforceable right or obligation.

In the common case where the document is contractual, there was at one time a school of thought that rectification could only be ordered to bring the document into conformity with a prior concluded contract. That view was decisively rejected by the Court of Appeal in Joscelyne v Nissen [1970] 2 QB 86. That case authoritatively established that the claim need not be based on a legally enforceable contract and that a common intention continuing when a contract is made is sufficient, provided there has been an “outward expression of accord” (p 98).

Sometimes the mistake sought to be rectified is simply a clerical error in drawing up the document. But this need not be so. The document as drawn up may contain the exact words which it was intended to contain; but the words may be construed by a court as having a meaning that is different from the meaning which the parties understood and intended them to have. This possibility arises because of the “objective” approach which English law adopts to the interpretation of contractual documents (and other documents on which reliance is intended to be placed), giving them the meaning which the document would convey to a reasonable person regardless of whether this reflects what the maker(s) of the document or parties to the transaction subjectively understood or intended the document to mean. Rectification is available as a safety-valve to prevent the injustice that would occur if a party could take advantage of an objective interpretation which is inconsistent with what (in the case of a bilateral transaction) both parties actually intended the document to mean.

Doubt was cast on this understanding of the law by obiter dicta in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, paras 48–66, which suggested that the objective test should be applied, not only in interpreting the document sought to be rectified, but also in identifying the prior common intention on which the claim for rectification is based. Among other objections to this approach, it was never explained why the objective meaning of a formal written instrument intended to create legally binding obligations should be displaced in favour of the objective meaning of earlier less formal and less considered communications which were never intended to be binding if the objective meaning of those communications did not accord with the parties’ shared subjective intention. In the words of Snell's Equity, para 16-015, the “traditional orthodox approach” was restored by the judgment of the Court of Appeal in FSHC Group Holdings Ltd v GLAS Trust Corpn Ltd [2020] Ch 365, holding that the parties must in fact have made a mistake and had the same actual intention for rectification to be granted.

There must also be an “outward expression of accord” - meaning that, as a result of communication between them, the parties understood each other to share that intention: see FSHC Group Holdings, para 176.

There is an exception to the general rule that rectification is only available to correct a mistake in verbal expression common to all the parties to the transaction. Rectification may also be granted where it is shown that the document did not accurately reflect the intention of one party to a bilateral transaction and that the other party knew and took advantage of that fact: see eg Agip SpA v Navigazione Alta Italia SpA (The Nai Genova) [1984] 1 Lloyd's Rep 353, 359–362. A claim for rectification based on such a unilateral mistake, however, still requires proof of subjective states of mind.

It is relevant that the test for rectification, unlike interpretation, is subjective and depends on the parties’ states of mind when considering the correct “target” for rectification in this case.

Although rectification alters documents and not the agreements or other transactions recorded in documents, its effect is to alter legal rights. It does so because the document must thereafter be interpreted in accordance with the reformed wording. In principle, the effect is retrospective. Because the words are rewritten into the form in which the document should have been written when it was created, the document is treated as if it had originally been expressed in its rectified form: see eg Craddock Bros v Hunt [1923] 2 Ch 136, 151–152.

Being an equitable remedy, rectification may be refused if the effect of granting it would be unfairly to prejudice the rights of third parties: see eg Thames Guaranty Ltd v Campbell [1985] QB 210, 240 ; Snell's Equity, para 16-025. Alternatively, because the remedy is discretionary and may be shaped to meet the justice of the case, it would be open to the court to grant the remedy on terms which will avoid such prejudice if such terms can be identified.'

(2) in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361, [2020] Ch 365, the Court of Appeal (Flaux LJ; Leggatt LJ; Rose LJ) had before it, an '...opportunity ... to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.' (paragraph 1). 

Leggart LJ (giving the judgment of the Court of Appeal) said, at paragraphs 6 to 10:

'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. As we will discuss, for many years and indeed centuries it was understood that the intention which the court is concerned to identify in deciding whether to grant this remedy is the actual intention of the relevant party or parties as a matter of psychological fact. Recently, however, a different approach has been proposed where the document is a written contract.

In Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, Lord Hoffmann (in a judgment with which all the other members of the Appellate Committee of the House of Lords agreed) expressed the view that, where the document of which rectification is sought is a written contract, the relevant test of intention is purely “objective” - meaning by this what a reasonable observer with knowledge of the background facts and prior communications between the parties would have thought their common intention at the time of contracting to be.

The observations about rectification made in the Chartbrook case were recognised by the House of Lords itself to be obiter dicta, which therefore did not create a binding precedent. That was because, as a result of the conclusion reached about how the relevant contract term should be interpreted, the alternative claim to rectify the written contract did not arise. Great weight has nevertheless naturally been given to a unanimous statement of opinion by the UK's highest court. At the same time the view expressed in the Chartbrook case runs contrary to a very substantial body of learning and authority, both in England and Wales and in other common law jurisdictions, concerning the requirements for rectification based on a common mistake.

In the decade since Lord Hoffmann's observations were made, they have proved controversial and have been criticised by both academic commentators and judges: see eg Hodge, Rectification, 2nd ed (2015), paras 3-56–3-60; Spry, The Principles of Equitable Remedies, 9th ed (2014), p 630; Chitty on Contracts, 33rd ed (2018), vol 1, para 3-081. When the Court of Appeal first had an opportunity to consider the significance of the Chartbrook case in Daventry District Council v Daventry & District Housing Ltd [2012] 1 WLR 1333, however, both parties argued the appeal on the footing that Lord Hoffmann's analysis was correct and the court thought it right to proceed on that basis, although two of its members expressed doubts about the correctness of that analysis and each member of the court took a different view about how it was to be applied.

Uncertainty and dissatisfaction about the present state of the law has grown since the Daventry case was decided. On this appeal the question of which test of common intention is correct has been put in issue by the Parent and we think it necessary to confront it.'

After going through the authorities, from paragraphs 51 to 175, Leggart LJ said, under the heading 'Conclusion on the law', at paragraph 175:

'For all these reasons, we are unable to accept that the objective test of rectification for common mistake articulated in Lord Hoffmann's obiter remarks in the Chartbrook case correctly states the law. We consider that we are bound by authority, which also accords with sound legal principle and policy, to hold that, before a written contract may be rectified on the basis of a common mistake, it is necessary to show either (1) that the document fails to give effect to a prior concluded contract or (2) that, when they executed the document, the parties had a common intention in respect of a particular matter which, by mistake, the document did not accurately record. In the latter case it is necessary to show not only that each party to the contract had the same actual intention with regard to the relevant matter, but also that there was an “outward expression of accord” - meaning that, as a result of communication between them, the parties understood each other to share that intention.'

(2) in Places for People Pension Trustee Ltd v Places for People Group Ltd [2025] EWHC 3371 (Ch), Richards J considered rectification in respect to a pension scheme. Under the subheading 'The law on rectification as applicable to pension scheme deeds and rules', Richards J said, at paragraphs 45 and 46:

'In FSHC Group Holdings Ltd v GLAS Trust Corporation Limited [2019] EWCA Civ 1361 [2020] Ch 365 (FSHC), the Court of Appeal provided an authoritative statement of the law on rectification in relation to contracts, although it also refers to other types of instrument. There was no difference between the parties on the legal test that I should apply when deciding whether to grant the remedy of rectification sought. ... I derive considerable comfort from the fact that the parties are agreed on the legal test. That means that I can state briefly that I am prepared to proceed on the basis of the statement of the law of rectification that is set out in paragraphs 7.6 to 7.8 of the Trustee's written skeleton argument.

Central propositions on which the parties are agreed are as follows:

i) In order to succeed with a claim for rectification, the Trustee must establish a common continuing intention in respect of the matter in the instrument to be rectified which, by mistake, is not reflected in that instrument.

ii) The common continuing intention that matters is the subjective common intention of the parties to the instruments to be rectified.

iii) Where the relevant intention is that of a corporate entity, what matters is the subjective intention of the "decision makers" who had the authority to bind the entity in question.

iv) Although in different contexts an "outward expression of accord" is necessary before an instrument can be rectified, that is not necessary given the rectification claims made in these proceedings. That is because instruments relating to the Scheme are not negotiated in the same way as commercial contracts: for example, the economic interests of the Trustee and the Employer do not diverge in the same way as the interests of parties to a commercial contract would.

v) A number of the rectification claims at issue in this case concern a situation where a particular piece of drafting was not evidently intended to have a particular effect but appears to have that effect erroneously or inadvertently. Parties to pension scheme documents do not routinely recite to each other a complete suite of amendments that they do not intend to make. However, it is nevertheless appropriate in suitable cases to infer that a change of this kind was not intended from the fact that the parties did not state positively that it was intended.

vi) Documentation for the Scheme has been drafted incrementally. Periodically, consolidation trust deeds have been drawn up which repeat earlier errors in other documents. Rectification of such consolidated deeds, and other deeds mentioning such consolidation deeds, may be granted if the evidence demonstrates that the intention at the time of its execution was that it should reflect members' legal entitlement under the earlier deed as rectified. By contrast, if the only intention at the time of the consolidating deed was to replicate the wording of the original document, the claim for rectification may not be made out.

vii) Evidence of how the parties conducted themselves after a document is executed is relevant to ascertaining the parties' subjective intention at the time of execution. In particular, if on realising the apparent effect of some wording, the parties to the instrument took some steps to correct it, that is relevant, and indeed significant, evidence.

viii) Any negligence on the part of advisers in drafting the documentation is no bar to a claim for rectification and may well explain the disconnect between intention and wording.

ix) Delay in seeking rectification is not in itself a bar to relief. Rather the question is whether there would be prejudice to any affected party if the documents are rectified after a material lapse of time.

x) Rectification can be proposed to take effect on the basis of specific terms, including being subject to an 'underpin'. Certain underpins are proposed in this case, reflecting the fact that, although there was a subjective intention to include particular wording in deeds or other documents, that wording might not be capable of operating as drafted because, for example, of restrictions on the amendments that can permissibly be made to benefits referable to historic service pursuant to powers of amendment contained in Scheme documentation.'[1]

(3) 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.'

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