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Hilary Term

[2023] UKPC 11

Privy Council Appeal No 0032 of 2021

JUDGMENT

Charles Edward Porter and another (Respondents)

Robert Stokes (Personal Representative of the Estate of Walter Edward Stokes, deceased) (Appellant) (Trinidad and Tobago)

From the Court of Appeal of the Republic of Trinidad and Tobago

before

Lord Briggs

Lord Kitchin

Lord Sales

Lord Burrows

Lady Rose

JUDGMENT GIVEN ON

30 March 2023

Heard on 1 March 2023

Appellant

Ramesh Lawrence Maharaj SC

Robert Strang

Katharine Bailey

(Instructed by BDB Pitmans LLP (London))

Respondents

Ian Benjamin SC

Kerwyn Garcia

(Instructed by Signature Litigation LLP (London))

Lord Briggs:

Introduction

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.

The Documents

The earliest, which formed part of Walter Stokes’ title in the sale to the Porters, is a deed of conveyance dated 20th June 1967 (“the 1967 Deed”) by which Janet Stanhope-Lovell sold and conveyed both the main parcel and the strip to Walter Stokes, while remaining the owner of the retained land. In the 1967 Deed the main parcel was called “the hereditaments” and the strip was called “the Right of Way”. They were described in detail in Parts 1 and 2 of the Schedule to the 1967 Deed, both in terms of boundary location and area (then using the old system of acres, roods and perches), and stated to be coloured pink and green respectively on the accompanying plan (“the 1967 Plan”).

The 1967 Deed reserved to Ms Stanhope-Lovell an easement of way over the strip for the benefit of the retained land in the following terms:

“Except and reserving unto the Vendor in fee simple full and free rights and liberty at all times hereafter and for all purposes connected with the existing use of the remainder of the adjoining property of the Vendor known as ‘the Glen’ with or without horses and other animals, carts, carriages and motor and other vehicles of every description laden or unladen to go pass and repass along the Right of Way.”

The 1967 Plan labels the strip as “Right of Way” in accordance with the nomenclature of the 1967 Deed, and a coloured copy obtained during the hearing shows that the main parcel and the strip were coloured pink and green in accordance with the descriptions in the Schedule.

At some date before 1982 Walter Stokes acquired the retained land from Ms Stanhope-Lovell, so that it, the main parcel and the strip were in his common ownership by the time of the sale to the Porters. The easement of way over the strip had thereby been extinguished in law, although the strip remained the de facto means of access from the Royal Road, both to the main parcel and to tenanted houses on the southern part of the retained land.

Turning to 1982, the first two relevant documents in point of time are two plans, which came to be labelled “A2” and “A4” in the courts below. The Board will adopt that nomenclature. They were both prepared by the same surveyor, Mr Sylvester, and both were described as having been prepared for “Mr Stokes”, ie Walter Stokes. Taking them in turn, Plan A2 is dated (in Mr Sylvester’s handwriting) 23 March 1982 and describes itself as “PLAN of a Parcel of land coloured pink”. The copy of Plan A2 in the trial bundle bears the series number 91705 and is signed by each of Walter Stokes, Mr Porter and Mrs Porter. That copy in the black and white bundle bears no colouring, but copies of the same plan, numbered 91704 and 91705 sent from Trinidad during the hearing, do contain colouring. 91704 shows the main parcel coloured pink and both the strip and the Royal Road coloured in some different colour which varies (depending on the computer screen upon which it is viewed) between yellow and beige or light brown. 91704 is not signed by any of the parties to the transaction. The coloured copy of 91705 is signed, but only by the Porters. Thus that coloured copy of 91705 must be slightly earlier in time of copying than the version of 91705 signed by all three of the parties. It also shows the main parcel coloured pink. The strip is also coloured, but not the Royal Road. It is not possible to tell (after the passage of 40 years) what that colour of the strip is. In all copies of Plan A2 the main parcel is given an area (5340.3 square metres) but the strip is not given any area.

All versions of Plan A2 label the strip as “Right-of-Way”. To the uninitiated viewer of Plan A2 on its own it looks as if it is seeking to distinguish between the main parcel as being subject to the sale and the strip as being subject only to a right of way, serving the main parcel. But if Plan A2 is viewed in the knowledge of the 1967 Plan (which, with the rest of the 1967 Deed, was no doubt being used as a precedent) it looks as if the person drawing and writing on Plan A2 has simply lifted the label for the strip from the 1967 Plan.

Plan A4 bears the date 21 April 1982, again in Mr Sylvester’s manuscript, and has the series number 91713. It later came to be annexed to the Deed. As will appear there was much dispute at trial and in the Court of Appeal about whether this was the correct date, or whether it was prepared in August 1982, but it is now common ground between counsel that it was correctly dated 21 April. It describes itself as:

“PLAN of 2 Parcels of land coloured Pink & Green…Containing together five, seven, seven hectares.”

The stated area is the aggregate of the stated areas of the main parcel and the strip. The number “2” has been added to replace “1”, “Parcel” changed to the plural and “& Green” has been squeezed after “Pink”. It is not possible to tell for certain when these alterations were made, save that they pre-dated the filing of Plan A4 with the Deed at the Registry on 30 August 1982. But neither of the parties have advanced any case or submission that these alterations were made after the date when Mr Sylvester signed plan A4, and the Board understood that the common ground about the 21st April date which emerged for the first time during the hearing related to the whole of the contents of the plan.

Plan A4 departs from Plan A2 in the following further respects. First, the label “Right-of-Way” for the strip has been removed, and replaced with a precise statement of its area: namely 430 square metres. This removes an indicator (discussed above) that the strip was not itself agreed to be conveyed, and replaces it with an area description which suggests that it was. Secondly there is added the route of a 5 ft wide “Existing Drain” running north to south from the southern corner of the retained land, across the west end of the strip, and then east to west along the southern boundary of the main parcel to the river. Finally the colouring of the strip has changed to green, in accordance with the “Pink and Green” part of the explanation of the purpose of the plan.

Plan A4 does not appear to have been signed by any of the parties to the transaction. Apart from Mr Sylvester’s signature, it also includes the signature of someone described as “Conveyancer” under a certificate that the plan is that referred to in the Deed. This signature and certificate is unlikely to have pre-dated the Deed itself.

The next relevant document is the Contract, dated 15 May 1982 and signed by all the parties. Clause 1 is central to the case, and reads as follows:

“The Vendor will sell and the Purchasers will purchase the freehold parcels of land comprising FIVE THOUSAND THREE HUNDRED AND FORTY POINT THIRTY FIVE SQUARE METERS· (5340.35 s.m.) (together with the buildings thereon and appurtenances thereto) and FOUR HUNDRED AND THIRTY SQUARE METERS (430 s.m.) (subject to a Right of Way over the same being granted to the Vendor by the Purchasers) respectively and which said parcels of land are more particularly delineated and coloured pink and brown respectively on the Copy of the Survey Plan dated March 23, 1982 prepared by Winston Sylvester which is attached hereto and marked ‘A’ (hereinafter called ‘the said property’).”

Clause 3 provided for completion within 90 days, time being of the essence. Clause 6 provided liberty to either party to rescind if completion did not take place within the prescribed time due to the other party’s default.

The plan attached and marked “A” is Plan A2. There has been much debate about whether the Contract (including its attached Plan A2) is ambiguous. Viewed without Plan A2 it plainly constitutes a two parcel agreement, with a right of way granted by the purchaser to the vendor over the smaller part. The precise description of the area of the smaller parcel as 430 sq.m sufficiently identifies the strip, and the grant of the right of way over it to the vendor only makes sense in relation to the strip, since the only ‘land’ rendered accessible by a right of way from the retained land over the main parcel is the river. When Plan A2 is added to the Contract the extent to which it might be thought to cast doubt on whether this was to be a sale which included the strip depends on how (before 40 years’ fading) the strip was actually coloured on the version attached to the Contract. But whatever the original colour of the strip, it does not detract from the Contract as an agreement to sell the strip as well as the main parcel, and the contrary was not suggested.

The lasting mystery, upon which the judge evidently pondered at length, is why Plan A2 rather than the more up to date Plan A4 was appended to the Contract if, as is now agreed, Plan A4 was in existence by that date. This is not something about which the documentary evidence sheds any useful light. The Board will have to return to it when addressing the judgments of the courts below, in each of which there is a radically different explanation, neither of which now withstands analysis.

The next and final relevant document is the Deed itself, to which Plan A4 was attached. It is dated 18th August 1982, over 90 days from the date of the Contract. It was clearly prepared with the 1967 Deed in mind, and used loosely as a precedent. The key part for present purposes is the first recital, as follows:

“WHEREAS the vendor is seized and possessed in fee simple of the freehold hereditaments and premises described in the First Part of the Schedule hereto (hereinafter called ‘the said Lands’) TOGETHER with certain rights and liberties connected therewith (hereinafter called ‘the Privileges’) and more particularly described in a certain deed registered as No. 2695 of 1924 SUBJECT HOWEVER to the right of passage (hereinafter called “the Right of Way”) over and along the parcel or strip of land described in the Second Part of the Schedule hereto reserved to Janet Stanhope-Lovell by deed registered as No. 6152 of 1967 and Subject also to the covenant (hereinafter called ‘the Covenant’) set out in Clause 2 of the said deed registered as No. 6152 of 1967 but otherwise free from encumbrances.”

At clause 1 the Deed then conveys “the said Lands” together with the Privileges and the Covenant “subject to the Right of Way”. The Schedule is divided into three parts. The First Part contains a precise description of the main parcel, described as delineated on the annexed plan and coloured pink. The Second Part contains an equally precise description of the strip, complete with location, boundaries and area, described as delineated on the annexed plan and coloured green. The Third Part reserves to the vendor the drainage right along the drain shown on the plan. The annexed plan is, as already described, Plan A4.

The Deed is notable also for what it did not contain, namely any right of way over the strip in favour of the Porters. The only right of way to which the Deed made reference, albeit slightly incorrectly since it had been extinguished when the main parcel and the strip came into Mr Stokes’ common ownership, was to the Right of Way over the strip, in the form originally created by the 1967 deed, which expressly reserved it for the benefit of the retained land.

Reference may briefly be made to the mortgage (“the Mortgage”) by which the Porters charged their new purchase to a bank as security for a loan towards the purchase price. Although disclosed, this was not a document relied upon at the trial or in the Court of Appeal. It charged both the main parcel and the strip to the lender.

The Witnesses

The Porters relied on witness statement evidence from Mr Porter, Mr Sylvester and a Mr Emerick Brown, who lived in a house on the retained land served by the track along the strip. Mr Brown had little to contribute beyond a general understanding that the Porters owned or at least controlled the strip. Mr Sylvester described his role in the making of Plans A2 and A4. He thought, in his witness statement, that the A4 plan was prepared in about August 1982, but in cross examination accepted the April 21st date which he had written on it.

Mr Porter was the main witness. He stated that it had always been agreed between him and Walter Stokes that the strip was to be included in the sale. He thought that Plan A4 had been made in August, as a result of advice that the drain which was to be the subject of what became the drainage right in the Deed needed to be shown on the plan. He said that this was why completion had been delayed beyond the 90 day prescribed period.

Robert was his own main witness. He was at the time a busy airline pilot. He emphasised the close, almost familial, relationship between his father and the Porters. He described attending a meeting between them at which the Porters had asked for but been refused a sale of the strip by his father. He described how he had spotted what he regarded as the erroneous reference in the Contract to a sale of the strip as well as the main parcel and raised it with his father. He was later told by his father that he had received an apology from the Porters, and an oral agreement from them to correct the mistake. Rather than amend the Contract they had agreed to let it expire, and then convey just the main parcel otherwise than pursuant to the Contract. This was, his father told him, because the Porters were concerned that amending or cancelling the Contract might prejudice or delay their loan application.

Robert called two friends of his father to testify that they had heard his father saying that he was the owner of the strip and had declined to sell it to the Porters. One of them, a Mr Victor, described being told by Walter Stokes about the mistake in the Contract in similar terms to the account given by Robert. But he died before the trial and his witness statement was admitted under a hearsay notice. The other, a Mr Pechenik, also said that the Porters had admitted to him that they did not own the strip. The two other witnesses, Robert’s son and a Mr Ramischand gave evidence about the obstruction and adverse possession issues, but nothing of direct relevance to the rectification issue.

The Judgments of Charles J and of The Court of Appeal

The judge delivered a reserved judgment a little over a year after the trial. She described the parties’ cases, the witness evidence, including cross examination, and the submissions. She provided what she described as a summary of the relevant law about which there was no dispute between the parties, by reference to Private Rights of Way by Smith, Francis, Jessel and Shaw (2012), Fowler v Fowler (1859) 4 De G & J 250, Irnham v Child (1781) 1 Bro C C 92), Murray v Parker (1864) 19 Beav 305, Crane v Hegeman-Harris Co. Inc [1939] 1 All ER 662, 664 and Earl v Hector Whaling Ltd [1961] 1 Lloyd’s Rep 459, 470. She directed herself that she would need to be persuaded by clear and unambiguous evidence, by what she called “strong proof”, that the Deed, a professionally drawn document, should be “reformed”, that this could be done by written and parol evidence, and that where (as here) there was a prior written agreement then parol evidence was admissible to resolve any ambiguities in it.

The judge’s analysis of the evidence may be summarised thus. First, Plan A2 signed by all parties evidenced an intention that only the main parcel was to be sold because, in particular, the strip was not coloured. She placed great weight on the fact that Mr Porter had said that the delay in the execution of the Deed was in order to deal with the drainage issue, which she described as “a deliberate untruth” and a “gratuitous fabrication” designed to conceal the real reason for the delay, namely to let the Contract expire. Above all she found that the Porters had deliberately prepared Plans A2 and A4 with a view to deceiving Walter Stokes. She said (at para 65):

“Additionally and very importantly I form the view on the clear evidence before me that the Claimant had prepared two survey plans before the execution of the agreement for sale - one depicting the first parcel only and the second depicting both parcels with the drain reserve. In order to induce Mr Stokes to sign the agreement for sale, A2, which only depicted the first parcel was drawn to his attention. He signed that plan at the same time that he signed the agreement for sale. A reasonable inference to be drawn from these events is that Mr Stokes was never shown A4 and this was deliberately planned by the Claimants. In my view the only reason for this deception was that Mr Stokes was adamant that he would only sell to them the first parcel and not the second.”

This was a finding of fraud against both the Porters. If well-founded it plainly entitled her to treat Mr Porter’s evidence as unreliable. She then concluded that the Porters had failed to prove their case, and dismissed their claim. In her view the common intention, all along, had been that only the main parcel was to be conveyed, and this was what the Deed provided.

The Court of Appeal trenchantly reached the opposite conclusion. But first they had to consider whether they were entitled to interfere with the decision of the judge. Bereaux JA directed himself by reference to Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21, [2014] 4 All ER 418 at paras 12 and 17 (per Lord Hodge), and In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 at para 53, (per Lord Neuberger of Abbotsbury). He concluded that an appellate court may revisit and reverse a trial judge’s findings of fact if the conclusion was (i) one which had no evidence to support it or (ii) one which was based upon a misunderstanding of the evidence or (iii) one which no reasonable judge could have reached. Mindful of the need to respect the advantage of the trial judge of having seen and heard the witnesses he concluded that the advantage was in the present case at the lower end of the relevant spectrum because, after such a passage of time, the decision on the rectification issue was bound to turn primarily on the documents. Although the scope for appellate departure from findings of fact at first instance has been the subject of a great deal of recent authority, no-one suggested on the appeal to the Board that Bereaux JA’s summary of the relevant principles involved any error of law.

The Court of Appeal decided that it was at liberty to depart from the judge’s factual findings for the following three reasons (taken from para 27 of the judgment of Bereaux JA):

(i) She failed to consider or properly to consider the documentary evidence and in particular the provisions of the 1982 Deed.

(ii) She misconstrued the survey plan A4, and in particular the corrections made to it and failed to reconcile all the corrections on it with the provisions of the 1982 Deed. She placed too much emphasis on the fact that the parties to the conveyance did not sign it.

(iii) She drew wrong inferences about Mr. Porter’s evidence (based on her misunderstanding of document A4) and wrongly rejected his evidence.

The Court of Appeal then proceeded to reverse the judge on the rectification issue. In summary this was because, for reasons which the Board will explain in detail in due course, a careful review of the surviving documents both tended to prove the Porters’ case, and because the surviving documents were more consistent with their testimony than with that adduced on behalf of the defendant Robert Stokes.

Part of the Court of Appeal’s reasoning was that, flatly contrary to the judge’s finding, Plan A4 had indeed been finalised in August rather than in April 1982, which tended to corroborate Mr Porter’s explanation of the reason for the delay in completion rather than what the Court of Appeal thought was the inherently improbable reason put forward by Robert Stokes. But they concluded that, even if finalised in April, Plan A4 tended to support the Porters’ case. Another part was the Court of Appeal’s assumption, expressed in para 85(i) of the judgment of Bereaux JA that, at the time of the execution of the Contract “there was no controversy that both parcels were being sold”. As will appear both these parts of the Court of Appeal’s analysis were criticised by Mr Maharaj SC for the appellant Robert Stokes. He said that the Court of Appeal were not entitled to depart from the judge’s findings of fact and that, even if they were, they came to the wrong conclusion.

This appeal therefore raises two main issues:

1) Was the Court of Appeal entitled to depart from the judge’s findings of fact? If not, the judge’s decision against rectification must stand.

2) If the Court of Appeal was so entitled, did they get the answer right or wrong?

But before addressing those issues directly it is first necessary to say a little more about the law relating to the equitable remedy of rectification, in respect of which the law of Trinidad and Tobago reflects the law of England and Wales.

Rectification - the Law

During the ten year period between July 2009 when the decision of the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101 was delivered and July 2019 when the decision of the Court of Appeal in FSHC Group Holdings Ltd v GLAS Trust Corpn Ltd [2019] EWCA Civ 1361; [2020] Ch 365 was handed down, the previously placid waters of English law about rectification may fairly be said to have been stirred up into a veritable storm. Students of legal history will find in chapter 3 of Hodge on Rectification, 2^ndEd (2015) a detailed account of the storm written while it was still raging. It perhaps remains to be seen whether it has now entirely died down as the result of the comprehensive disapproval of the unanimous obiter dicta in Chartbrook by a unanimous Court of Appeal in GLAS.

The judgments of both the judge and the Court of Appeal in the present case were delivered during that stormy period, and therefore in ignorance of what the Court of Appeal was about to say in GLAS. But the storm was raging only over one part of the relevant waters. A party to a document may seek rectification of it in two distinct types of situation. The first is where the document failed to implement an earlier binding contract between the parties to the document sought to be rectified. The second is where there is no earlier binding contract, but only a common intention, mutually expressed, which differs from the terms of the document sought to be rectified. Both Chartbrook and GLAS fell into that second category.

There was a time, before Joscelyne v Nissen [1970] 2 QB 86, when it was thought by some that the first type of case was the only type for which rectification was an available remedy. Absent an earlier binding contract there was nothing upon which an equity of rectification could be based: see per Lord Hoffmann in Chartbrook at para 59, referring to Lovell & Christmas Ltd v Wall (1911) 104 LT 85, 88 per Cozens-Hardy MR. Rectification of a mistaken document (eg a deed of conveyance) made pursuant to an existing contractual obligation would be granted almost as a kind of specific performance. If the claimant could show that the later document failed to implement the earlier contract, objectively construed, then it would be rectified so that it did. It would be irrelevant, in Lord Hoffmann’s view, that the subjective intentions of one or more of the parties differed from its meaning objectively construed. Lord Hoffmann said:

“But for present purposes the significance of cases like Lovell & Christmas Ltd v Wall 104 LT 85 is that the terms of the contract to which the subsequent instrument must conform must be objectively determined in the same way as any other contract. Thus the common mistake must necessarily be as to whether the instrument conformed to those terms and not to what one or other of the parties believed those terms to have been.”

Thus far Lord Hoffmann’s analysis was probably uncontentious: see Britoil plc v Hunt Overseas Oil Inc [1994] CLC 561 at 572 (per Hobhouse and Glidewell LJJ). The dicta which caused the subsequent storm were those by which Lord Hoffmann sought to apply that objective approach to the communications of the parties prior to making the document sought to be rectified where there was no earlier binding contract to enforce.

While in GLAS the Court of Appeal disapproved those contentious dicta, they were at pains to uphold the need for an objective analysis of an earlier binding contract (albeit obiter in that case because there was no earlier binding contract): see paragraphs 141, where the specific performance analysis in the Lovell and Britoil cases is approved and para 176, where their departure from the dicta in Chartbrook is expressly confined to cases where there is no prior binding contract.

The Britoil case also points the way to a better understanding of what may be in issue in a case where there is a prior binding contract. At p. 572 Hobhouse LJ said:

“Where the prior agreement is a legally binding contract then the grant of the remedy of rectification is, as was pointed out by Lord Cozens-Hardy in Lovell & Christmas v Wall (1911) 104 LT 85 at p 88, analogous to the remedy of specific performance. The parties were entitled to have an agreement conforming to their earlier contract. If the later document fails to fulfil this entitlement, the parties are entitled to have it rectified so that it will do so. Such a conclusion will only be defeated if the parties have intended to vary their earlier agreement. In such a situation the court will have to construe the earlier agreement as a contract and as a matter of law. Having decided as a matter of law what its effect is, the court will give effect to the legal rights of the parties.” (the Board’s emphasis).

As in Chartbrook these observations were unfortunately only obiter dicta, because there was no prior binding agreement in Britoil. Nonetheless the Board considers that, with one adjustment, they are a correct statement of English and Trinidadian law. The adjustment that the Board would make is that there is nothing to stop a defendant to a claim for rectification based upon an earlier binding contract from claiming that the contract was itself liable to be rectified.