ON APPEAL FROM CHANCERY DIVISION
Miss Elizabeth Jones Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE GROSS
| MOHAMED BASHIR
|- and -
|(1) MOHAMMAD SAFRAZ ALI
(2) MOHAMED Arshad Khan
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Mr Zachary Bredemear (instructed by G.H. Gelberg & Co) for the Defendants
Hearing dates : Wednesday 25th May 2011
Crown Copyright ©
LORD JUSTICE ETHERTON :
The background facts
"The only parts of the property that are being disposed of is the ground floor commercial element. The residential part of the building and your clients offer was obviously made on that basis and the price reflects the same."
"22. In East Pantiles (Plant Hire) 1981 263 E.G. 61 Brightman L.J. stated the conditions for what he called "correction of mistakes by construction":
"Two conditions must be satisfied; first there must be a clear mistake on the face of the instrument; secondly it must be clear what correction ought to be made in order to cure the mistake. If those conditions are satisfied then the correction is made as a matter of construction."
23. Subject to two qualifications, both of which are explained by Carnwath J in his admirable judgment in KPMG LLP v Network Rail Infrastructure Ltd  Bus LR 1336, I would accept this statement, which is in my opinion no more than an expression of the common sense view that we do not readily accept that people have made mistakes in formal documents. The first qualification is that "correction of mistakes by construction" is not a separate branch of the law, a summary version of an action for rectification. As Carnwath LJ said, at p 1351, para 50:
"Both in the judgment, and in the arguments before us, there was a tendency to deal separately with correction of mistakes and construing the paragraph 'as it stands', as though they were distinct exercises. In my view, they are simply aspects of the single task of interpreting the agreement in its context, in order to get as close as possible to the meaning which the parties intended."
24 The second qualification concerns the words "on the face of the instrument". I agree with Carnwath LJ, paras 44-50, that in deciding whether there is a clear mistake, the court is not confined to reading the document without regard to its background or context. As the exercise is part of the single task of interpretation, the background and context must always be taken into consideration.
25 What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In my opinion, both of these requirements are satisfied."
The respondents' notice
LORD JUSTICE GROSS
MASTER OF THE ROLLS