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N2-10: Equitable principles

PROCEDURAL ASPECTS OF CLAIMS
 

PROCEDURAL ASPECTS OF CLAIMS

Constitution of claim

Constitution of claim

- Person with more than one capacity can only be joined once and on a single side

"[8] At the hearing I also raised the question of the constitution of the claim, as mentioned above. It is clear on the authorities that a person who has more than one capacity, such as trustee and beneficiary, should be joined as a party to litigation once only, and on a single side of the record. Thus, in Neale v Turton (1827) 4 Bing 149, where one member of a partnership drew a bill of exchange on that partnership (including himself), which was accepted, and then sought to sue the whole partnership (including himself) on it, Best CJ said (at 151):

"There is no principle by which a man can be at the same time Plaintiff and Defendant."

And, in Hardie & Lane Ltd v Chiltern [1928] 1 KB 663, CA, a claim was brought against members of an association, three of whom were mentioned twice over, being sued first on their own behalf and second on behalf of all the other members of the association. Sargant LJ said (at 699):

"I desire to add, though the matter is perhaps one of form rather than substance, that it is incorrect to make any individual the defendant twice over because he happens to fill two capacities or has two different interests. The case often arises in actions in relation to trusts and the practice to the contrary is, in my experience, invariable."

[9] At the hearing of this claim I therefore ordered that the claimant be removed as first defendant, so the position was regularised, as was done by Rimer J in Allnutt v Wilding [2006] EWHC 1905 (Ch), [4]. If a trusteeship had needed to be transferred to a third party to resolve the difficulty, then that could have been ordered too, as Maugham J did in Re Phillips [1931] WN 131; and see also Public Trustee v Guaranty Trust [1980] 2 SCR 931, 115 DLR (3d) 513, SCC. The double appearance of the claimant did not cause any particular difficulty in this case, but in other cases practical questions may arise, such as, for example, double legal representation, set-off and enforcement, and so it is well to avoid the problem in the first place." (Armstrong v. Armstrong [2019] EWHC 2259 (Ch), HHJ Paul Matthews)

- Person with more than one capacity can only be joined once and on a single side

Evidence to prove intention and mistakes

Evidence to prove intention and mistakes

- Unchallenged evidence not to be disbelieved save for limited exceptions

 

"[56] ... That said, it seems to me that the principle identified in Long, namely that, subject to limited exceptions, the court cannot and should not disbelieve the evidence of a witness given on paper in the absence of the cross-examination of that witness. applied equally to the Master's consideration of the evidence before her at the hearing of the Claim.

...

[105] If, as I think is correct, the Master was obliged to take account of Mr Sharp's evidence of his discussion with the Claimant immediately before she signed the Deed of Appointment, this seems to me to affect the points made by the Master in Paragraphs 50 and 51.

...

[110] Although the evidential position was unsatisfactory, one ultimately comes back to the point that the evidence in support of the Claim was unchallenged. There was no cross examination in which questions of the kind set out in my previous paragraph could have been investigated. If the evidence of the Claimant and Mr Sharp was taken as a whole, it seems to me that, despite the problematic nature of the Claimant's evidence, there was not in fact an inconsistency between the first and second witness statements of the Claimant." (Laird v. Simcock [2023] EWHC 2054 (Ch), Edwin Johnson J)

- Unchallenged evidence not to be disbelieved save for limited exceptions

- But in such circumstances, Court limited to what is actually said, which may be ambiguous

 

"[59] First, in a case where the court is confined to considering paper evidence, whether in the form of witness statements or affidavits, the court is equally confined to what the relevant witness actually says in the relevant witness statement or the relevant affidavit. The court has to construe what is in the witness statement or affidavit, without the benefit of the witness being able to elaborate. If the evidence is ambiguous or opaque, the court may not be satisfied, on the balance of probabilities, that a particular fact has been established. If the evidence to establish a particular fact is simply missing from the witness statement or affidavit, that is it, so far as the evidence of the relevant witness is concerned. Again, the witness cannot fill in the gap, assuming that the witness would, if asked, have been able to fill in the gap. In each of the situations which I have just postulated it may be possible for sufficient proof of the relevant fact to be found elsewhere, in the evidence of another witness and/or in the documents. Further or alternatively, the party which finds itself with an ambiguity or a gap in its evidence may, if the circumstances allow, have the opportunity to ask the relevant witness to clarify or supplement their evidence in a further witness statement or affidavit. What the court cannot do is to read evidence into a witness statement or affidavit which is simply not there" (Laird v. Simcock [2023] EWHC 2054 (Ch), Edwin Johnson J)

- But in such circumstances, Court limited to what is actually said, which may be ambiguous

- Bare statement not accepted

 

"[90]...The problem with the Claimant's first witness statement, specifically at paragraph 5, seems to me to have been an obvious one. The Claimant commenced her evidence in paragraph 5 of her first witness statement by saying that she had read Mr Sharp's first witness statement. What was clear from Mr Sharp's first witness statement was that he was the person within SM who was principally responsible for dealing with the Deed of Appointment. There was however nothing in Mr Sharp's witness statement which explained what dealings he had with the Claimant in relation to the Deed of Appointment. There was no evidence of the Claimant giving him any instructions in relation to the Deed of Appointment. There was no evidence of Mr Sharp giving any explanation of the Deed of Appointment to the Claimant. The December Letter was not, so far as I can see, sent to the Claimant, and there is no document which contains or evidences any explanation of the Deed of Appointment being given by Mr Sharp to the Claimant. There was a reference to advice given to the Executors (the Trustees) in paragraph 40 of Mr Sharp's first witness statement but, and this is symptomatic of much of the evidence relied upon by the Claimant in this case, it was a general reference, giving no clue as to what advice was given, and when.
In these circumstances the obvious question which arose was how the Claimant was able to assert, in paragraph 5 of her first witness statement, that she did have the Required Intention. There was nothing in her first witness statement, and there was nothing in Mr Sharp's first witness statement which explained how the information was communicated to the Claimant that the Deed of Appointment was only intended to appoint to Catherine a life interest in the income from the IHT Liable Assets.
Nor was this deficiency made good in any of the contemporaneous documents. I have already mentioned that the December Letter was not, so far as I can see, sent to the Claimant. Mr Burton took me to the IHT400 Form, on the basis that it showed a treatment of the assets in the Estate consistent with what Mr Sharp had said the Deed of Appointment was intended to achieve. I take the point, but I do not think that this document can be relied upon as the basis of the Claimant's alleged knowledge of what the Deed of Appointment was intended to achieve. There was no such evidence from the Claimant in her first witness statement. The Claimant did not say, in her first witness statement, that her knowledge of what the Deed of Appointment was intended to achieve came from the IHT400 Form. Beyond this, I was not taken to any other document which explained how the Claimant could have formulated the Required Intention, or which corroborated what the Claimant said in paragraph 5 of her first witness statement.

...

[94]...Putting the matter at its lowest, it seems to me that the Claimant's evidence, in paragraph 5 of her first witness statement, required further explanation. Without such further explanation, I cannot see any basis on which the Master was obliged to accept that evidence. By reference to the evidence in the first witness statement of Mr Sharp and the contemporaneous documents, the evidence of the Claimant did not, without further explanation, seem to me to be credible.

...

[141] The key point is that the court was entitled in this case to see properly particularised evidence, which identified what each witness was able to say, and was not able to say, and why. Bald and unqualified statements of intention were not sufficient. The same applies to other cases of this kind. In the present case the original evidence was not properly particularised. It was only by reason of the May Directions that sufficient was ultimately done, in my judgment, to prove the Required Intention." (Laird v. Simcock [2023] EWHC 2054 (Ch), Edwin Johnson J)

- Bare statement not accepted

- Evidence of past behaviour as evidence of intention

 

"[44] I turn now to the blank space in Part 2 of the Trust Schedule. First of all, there is the question whether I am satisfied that a mistake has been made at all, by leaving the space blank. The choice is simple. Either Mrs White intended to name beneficiaries in default of appointment, and omitted to do so through inadvertence, or she deliberately decided to omit default beneficiaries, so that there would be a resulting trust for her estate, subject only to the exercise of the power of appointment. I accept that, given the terms of Mrs White's will, a resulting trust for her estate would be likely to benefit her daughters. Nevertheless, taken as a whole, in this case the evidence (including the pattern of previous behaviour with other life assurance trusts, the oral evidence of Mr Pretorius, and the letter from Clarke Willmott) amply satisfies me that she intended the former.
[45] The second question then is whether I am satisfied as to what she intended to write in the blank space. Again, that same evidence (but including also the evidence that there were no other children, and that there was no one else for whom Mrs White felt morally obliged to provide) completely satisfies me that her intention was to name her daughters, the claimant and the second defendant, in equal shares. The issue between the parties capable of being litigated is whether the daughters take as direct beneficiaries of the trust or only indirectly as residuary beneficiaries of Mrs White's estate, and therefore subject to her debts, taxes and so on. I will accordingly order rectification of the 2007 trust." 
(Armstrong v. Armstrong [2019] EWHC 2259 (Ch), HHJ Paul Matthews)

- Evidence of past behaviour as evidence of intention

RECTIFICATION

RECTIFICATION

Rectification in the FTT

 

"[44] The law on First Tier Tribunal jurisdiction in this matter is most recently covered in Lobler v Revenue and Customs Commissioners [2015] UKUT 152 (TCC). The relevant passages are:

[47] Thus although the FTT did not itself have power to order rectification, it could determine that if rectification would be granted by a court who does have jurisdiction to grant it, Mr Lobler's tax position would follow as if such rectification had been granted.

[48] It has never been suggested that before the effect of the availability of specific performance can be taken into account by the FTT, the appellant must go to court and actually obtain the remedy of specific performance. On the contrary, the cases show that this is not the case: see Oughtred v IRC [1959] 3 All ER 623, [1960] AC 206, Jerome v Kelly (Inspector of Taxes) [2004] UKHL 25, [2004] STC 887, [2004] 1 WLR 1409, BMBF (No 24) Ltd v IRC [2002] EWHC 2466 (Ch), [2002] STC 1450 and HSP Financial Planning Ltd v Revenue and Customs Comrs [2011] UKFTT 106 (TC), [2011] SFTD 436.

A tribunal such as the FTT must however take into account all the factors that the court would in deciding whether specific performance would be available, such as whether damages would be inadequate, whether specific performance would require constant supervision, whether the appellant is ready, willing and able to perform, hardship and so on.

[49] I am told that the cases in this context are all specific performance cases; equity treats a specifically enforceable contract to do a thing as if it were already done: see Walsh v Lonsdale (1882) 21 Ch D 9 at 14, Oughtred v IRC [1959] 3 All ER 623 at 625, [1960] AC 206 at 227, Neville v Wilson [1996] 3 All ER 171 at 182 [1997] Ch 144 at 157.

[50] One issue is therefore whether the same principle applies to rectification as it does to specific performance, although the FTT made no direct reference to specific performance. Mr Davey said that it does not, but without to my mind giving any convincing or principled reason as to why not. As specific performance is also a discretionary remedy I agree with Mr Firth that there is no relevant distinction between specific performance and rectification for present purposes.'

[45] When considering what the High Court would consider when looking at rectification, and when it would not consider it, we were referred to a number of cases, and we give extracts below of those most relevant.

...

[76] For all the reasons above we consider that the High Court would, if asked to consider the matter, grant rectification of these documents.  The major effect of this would be that the conditions for entrepreneurs' relief would then have been met." (Cooke v. HMRC [2024] UKFTT 272 (TC), Judge Allatt)

Rectification in the FTT

- No rectification if issue already resolved between the parties by further agreement and tax not part of intention of agreement

 

"[62] In my judgment, a specific tax advantage is required as part of the bargain between the parties as a necessary pre-condition to the grant of the equitable remedy of rectification if the parties have already corrected any relevant mistake in the underlying document by entering into a deed of rectification. In the present case, by the 2018 rectification deed the three parties concerned have already declared that the wording of the 2011 contract, properly construed, has, and has always had, the effect that they say it was always truly intended to have. Since the 2018 rectification deed fully resolves any issue between the parties, there is nothing left for the court to adjudicate upon between the parties as to their respective rights and obligations. In my judgment, it is still one of the maxims of equity that "equity does not act in vain"; and that broad, underlying principle is relevant when the court is called upon to exercise an equitable, remedial discretion. Had the entry into or the terms of the 2011 contract been motivated by tax considerations, whether in whole or in part, then there would still have been something left to be resolved even after the 2018 rectification deed; but since there was no such underlying tax motivation, there is nothing left to rectify. In light of the 2018 rectification deed, there can be no prospect of any future litigation between the three parties thereto because there is nothing outstanding left to be resolved between them. HMRC's treatment for tax purposes of the income arising under the 2011 contract does not affect the position of the parties as between themselves, but only their position in relation to HMRC. Mr Vaughan cannot now complain that he has not received any payment from TMG. It is only his position in relation to HMRC that is affected; but on the evidence that was not a consideration that motivated the entry into or the terms of the 2011 contract. The existence of a dispute between Mr Vaughan and HMRC does not justify the grant of the equitable remedy of rectification because that dispute does not affect the rights of the parties to the 2011 contract as between themselves." (MV Promotions Limited v. (1) Telegraph Media Group Ltd and (2) HMRC [2020] EWHC 1357 (Ch), HHJ Hodge QC)

- No rectification if issue already resolved between the parties by further agreement and tax not part of intention of agreement

- Sufficient that there is capable of being an issue between the parties

 

"[140] What the Court of Appeal decided in Racal was that it is sufficient, even for the closely-guarded remedy of rectification, that there is a genuine issue capable of being contested, even if the parties decide that they will not in fact contest it. The test for rescission on the ground of mistake cannot be stricter than that." (Pitt v. Holt [2013] UKSC 26)

- Sufficient that there is capable of being an issue between the parties

- The potential issue could be the failure to attain an intended tax result

 

"[61] In a case, unlike the present, where the parties were motivated by the achievement of a specific tax advantage when negotiating the terms of the relevant document, then even if there is a later deed of rectification, there will still be a live issue capable of being contested between the parties if HMRC do not accept that deed's retrospective effect. That is because there then remains an issue as to the efficacy of the underlying document in terms of its capacity to fulfil, rather than to frustrate, the intended underlying tax motive. In such a case, HMRC's attitude to the retrospective efficacy of the deed of rectification makes a difference to the achievement of the underlying document's full intended purpose. In the present case, however, there is no evidence that the parties to the 2011 contract had any specific tax advantage in mind when they entered into that contract.

...

Because the parties to it had no specific tax advantage in mind when they entered into the 2011 contract, in my judgment it is only the rights of the parties as between themselves, and not their rights as against HMRC, that are relevant to the exercise of the court's direction to grant, or to withhold, the equitable remedy of rectification." (MV Promotions Limited v. (1) Telegraph Media Group Ltd and (2) HMRC [2020] EWHC 1357 (Ch), HHJ Hodge QC)

- The potential issue could be the failure to attain an intended tax result

Rectification of a contract: conditions

"[176] 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." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

"[79] Peter Gibson LJ set out what needed to be proved in order to found a claim to rectify an instrument. In paragraph 33 he said:
"The party seeking rectification most 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 agreement 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."
This is now a succinct and authoritative statement of the essentials of the law approved by the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd, [2009] UKHL 38; [2009] AC 1101." (Lloyds TSB Bank Plc v. Crowborough Properties Limited [2013] EWCA Civ 107)
 

Rectification of a contract: conditions

(1) Parties had common intention in respect of a particular matter in the agreement

(1) Parties had common intention in respect of a particular matter in the agreement

- Subjective intention

"[146] The justification for rectifying a contractual document to conform to a 'continuing common intention' is therefore not to be found in the principle that agreements (as objectively determined) must be kept. It lies elsewhere. It rests on the equitable doctrine that a party will not be allowed to enforce the terms of a written contract, objectively ascertained, when to do so is against conscience because it is inconsistent with what both parties in fact intended (and mutually understood each other to intend) those terms to be when the document was executed. This basis for rectification is entirely concerned with the parties' subjective states of mind. The underlying moral principle can be characterised, to adopt Lord Hoffmann's analysis, as being that persons who make a contract have to observe certain standards of good faith.

...

[153] For these reasons, there is in our view no anomaly in applying an objective test where rectification is based on a prior concluded contract and a subjective test where it is based on a common continuing intention. Different principles are in play." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

 

- Subjective intention

- Exact form of common intention immaterial if substance and detail ascertainable

 

"[34] ... (2) Whilst it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if in substance and in detail the common intention can be ascertained: Cooperative Insurance Society Ltd v Centremoor Ltd [1983] 2 EGLR 52 at page 54, per Dillon LJ, with whom Kerr and Eveleigh LJJ agreed.

...

[38] Mr West, on the basis of that authority, submits that there is in the present case no convincing proof of the alleged common intention when by the pleadings of the claimant different matters are put forward in the alternative. I am unable to accept this submission. In the present case the claimant does not plead inconsistent common intentions. It has pleaded inconsistent ways in which the pleaded common intention can be given effect, and that, I think, was true even of the original unamended pleading." (Swainland Builders Limited v. Freehold Properties Limited [2002] EWCA Civ 560, Peter Gibson LJ - on the facts the intention was for the vendor to retain two flats out of 39, but failed to reserve such rights)

- Exact form of common intention immaterial if substance and detail ascertainable

- Need not be only one way of giving effect to common intention

 

"[38]...For my part that distinguishes the present case from the Pearce case. If the common intention is, as the judge found, that the transfer to the defendant by the claimant would be of the freehold of College Close subject to 39 long leases at a ground rent of £125 per annum, and if effect can be given to that common intention in more than one way, I cannot see why it should matter that the pleading should reflect that fact. To put it another way, it would seem to me to be very odd that an equitable remedy for correcting a common mistake should be defeated merely because it is pleaded that the court should give effect to the common intention by either of two methods which would achieve the common intention." (Swainland Builders Limited v. Freehold Properties Limited [2002] EWCA Civ 560, Peter Gibson LJ

- Need not be only one way of giving effect to common intention

- Unilateral mistake that the other party was aware of

 

"[103] It has come to be accepted that the jurisdiction to rectify a written contract is not limited to cases where there was a common mistake and that in certain circumstances rectification may be granted even though at the time of execution of the contract only one of the parties was mistaken about its terms or effect. The development of the modern doctrine stems from the approval in A Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555 of the following statement of principle in Snell's Equity (25th Edn, 1960) at 570:
"… a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the contract, and that the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed the term to be included."" 
 (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

- Unilateral mistake that the other party was aware of

(2) Outward expression of accord

(2) Outward expression of accord

- Shared understanding may be tacit

 

"[81] The important point made in these passages, however, is not that an outward expression of an accord is unnecessary for rectification. It is that the communication necessary to establish an outwardly expressed accord or common intention which each party understands the other to share need not involve declaring that agreement or intention in express terms. The shared understanding may be tacit." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

"[55] I am also convinced that not only did each party to the 2011 contract have the same actual intention with regard to the identity of the parties to that contract, but that there was also the required 'outward expression of accord' - meaning that, as a result of communication between them, TMG, MVP and Mr Vaughan all understood each other to share that intention. This was implicit in the shared concept of "extending the deal past September 30, 2011". This resulted in a tacit shared understanding that was so obvious as to go without being expressly stated; it was one that was reached without being spelled out in so many words just as, in the time of social distancing necessitated by the Coronavirus pandemic, shoppers joining a queue outside a supermarket know to stand two metres behind the person immediately in front of them and two metres apart from each other without being told to do so expressly." (MV Promotions Limited v. Telegraph Media Group Limited [2020] EWHC 1357 (Ch), HHJ Hodge QC)

- Shared understanding may be tacit

- May come to know of each other's intentions without those intentions being directly stated

 

"[82] The same point was well made by Campbell JA in the Ryledar case at para 281, when he said that, in order to form a common intention, parties might come to know of each other's intentions without those intentions being directly stated, through various other means. As he elaborated:

"Those means can sometimes involve a process of conscious and deliberate inference. Those means can sometimes involve simply perceiving a gestalt in a series of events. Those means can depend to some extent on the people involved sharing a common understanding of how particular bodies of knowledge or markets or social institutions they are operating in work – the experienced surgeon, or the experienced chess player, can sometimes see what another surgeon, or chess player, is seeking to do, in a way that an inexperienced person cannot. What matters for present purposes is that for a negotiating party to perform actions or say words from which the other party can gather his or her intention is itself a form of communication. Negotiation of any contract takes place in a context in which various facts are known or assumed by the negotiating parties. Sometimes, for example, if a contract is negotiated in a context where there are well understood business practices and conventions, and nothing is said about those practices and conventions not applying, it can be legitimate to conclude that both parties to the contract intended to act in accordance with those practices and conventions, even if they did not expressly communicate to each other that they intended to act in accordance with those practices and conventions. This view of what is needed before an intention is a common intention, accords, it seems to me, with the Australian case law since Joscelyne."

This view of what is needed before an intention is a common intention also accords, as it seems to us, with English law since Joscelyne v Nissen." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

- May come to know of each other's intentions without those intentions being directly stated

- May arise from well understood business practice

 

"[83] An old case which illustrates how a common intention may be formed without needing to be expressly articulated when a contract is negotiated in a context where there is a well understood business practice is Caraman, Rowley & May v Aperghis (1923) 17 Ll L Rep 183. Two contracts for the sale of sultanas on cif terms were drawn up by a broker acting for the sellers. By mistake, the broker used a form intended for spot contracts instead of the form for cif contracts with the result that the written contracts did not include, as was customary in the trade, a clause exempting the seller from liability in the event of war preventing the delivery of the goods. No reference had been made to this clause in negotiating the contracts because it was a usual clause which did not need to be spelt out, and no one noticed until later that the clause was not included in the forms used to document the transactions. Greer J nevertheless held that the sellers were entitled to have the contractual documents rectified to insert the war clause. His reasoning was that the parties had taken it for granted that, when the written contracts were drawn up, if anyone read through them they would find the clause there." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

- May arise from well understood business practice

- Party does not need to spell out that it does not intend contract to do more than agreed

 

"[192] It is true that Allen & Overy did not say in so many words that the Parent did not intend to do any more than satisfy its obligation to provide the missing security in respect of the shareholder loan. But, as Mr Wolfson pointed out, the very nature of the mistake made in overlooking the fact that the deeds did more than this explains why no such express statement was made. Parties entering into a contract do not spell out the fact that they lack intentions which no reasonable counterparty or observer would imagine them to have. Rather, it was the complete absence of any reference to the Additional Obligations in any of the relevant communications which, in this particular context, spoke louder than words." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ - in the context of looking at objective intention)

- Party does not need to spell out that it does not intend contract to do more than agreed

- Unnecessary for voluntary dispositions

 

"[46] I was concerned by the fact that on the judge's findings of fact Mrs Day never communicated her intention to anyone at the time of the transaction. However, I have come to the conclusion that an outward expression of intention is unnecessary in cases of voluntary dispositions." (Day v. Day [2013] EWCA Civ 280, Lewison LJ)

- Unnecessary for voluntary dispositions

(3) Intention continued at time of execution of agreement

(3) Intention continued at time of execution of agreement

- Must exist at time of contracting

"[46]...It is necessary to show that at the time of executing the written contract the parties had a common intention (even if not amounting to a binding agreement) which, as a result of mistake on the part of both parties, the document failed accurately to record. This requires convincing proof to displace the natural presumption that the written contract is an accurate record of what the parties agreed." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

- Must exist at time of contracting

(4) By mistake the instrument did not reflect that common intention

(4) By mistake the instrument did not reflect that common intention

- Mistake may exist even if words deliberately included (albeit mistaken omission usually easier to prove)

 

"[45] Mr West also argues that the transfer was in a form intended by the defendant. He submits that it was illogical for the judge to order rectification to change that form. But that is to misunderstand the function of the equitable remedy. Equity allows the correction of mistakes in the instrument which fails to give effect to the true intention of the parties. In Centremoor the parties plainly intended that the clause which the court rectified should take the form which it did. But that intention was formed as a result of a mistaken belief, and that did not prevent the court giving rectification." (Swainland Builders Limited v. Freehold Properties Limited [2002] EWCA Civ 560, Peter Gibson LJ)

"[16]...So long as a mistake relates to the meaning or effect of a document (rather than the consequences of, or the advantages to be gained from, entering into it), relief may be available even though the actual words of the document were deliberately adopted by the parties. It is now firmly established that the fact that the parties intended to use a particular form of words in the mistaken belief that it was achieving their common intention does not prevent the court from giving effect to their true intention. Further, it seems to me that where (as here) the mistake results from the inadvertent omission of a word or phrase from a document, and it is sought to introduce additional words into the document to cure that mistake, it may, in practice, prove easier to discharge the evidential burden of establishing the existence of a mistake than in the case where words have been inadvertently included in the document which it is sought to rectify. This is because parties may not always appreciate the legal effect of the omission of particular words." (Ashcroft v. Barnsdale [2010] EWHC 1948 (Ch), HHJ Hodge QC)

- Mistake may exist even if words deliberately included (albeit mistaken omission usually easier to prove)

- Mistake as to effect of document as opposed to consequences

"[179] For the appellant, Mr Masefield QC relied on the distinction between a mistake as to the legal effect of a document and a mistake as to the wisdom or consequences of or motive for agreeing to the wording of the document. He cited the following passage from the judgment of Lord Diplock (with whom the other members of the House of Lords agreed) in American Airlines Inc v Hope [1974] 2 Lloyds Rep 301, 307:

"That either or both [parties] were mistaken in their reasons for agreeing to this wording is no ground for rectification. Rectification is concerned with what the parties to a contract did agree and not with why they did so." (emphasis in original)

Mr Masefield also cited a passing observation of Lord Walker in Pitt v Holt [2013] UKSC 26; [2013] 2 AC 108, para 131, that:

"Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences."

[180] Lord Walker's observation was made with reference to the decision of the Court of Appeal in Racal Group Services Ltd v Ashmore [1995] STC 1151. In that case the Court of Appeal applied the principle that a document cannot be rectified merely on the ground that it failed to achieve the grantor's fiscal objective: the specific intention of the grantor as to how the objective was to be achieved must be shown. Peter Gibson LJ quoted with approval words of Evershed J in Van der Linde v Van der Linde [1947] Ch 306, 312, that the remedy of rectification is not appropriate if the grantor's real intention:

"be no more precise than this, namely, that he intended, by whatever formulation of words was appropriate or possible, to achieve the result that he could deduct in his surtax return the amount of bounty that he paid to his sister…"

[181] In AMP (UK) Plc v Barker [2001] Pens LR 77, para 70, Lawrence Collins J described the rule that rectification is not available if the mistake relates only to the consequences of the transaction or the advantages to be gained by entering into it as:

"simply a formula designed to ensure that the policy involved in equitable relief is effectuated to keep it within reasonable bounds and to ensure that it is not used simply when parties are mistaken about the commercial effects of their transactions or have second thoughts about them. The cases certainly establish that relief may be available if there is a mistake as to law or the legal consequences of an agreement or settlement …"

The mistake in the AMP case was to make an amendment to the rules of a pension scheme which had the effect of introducing substantial new benefits for early leavers when the intention had been only to benefit those who left because of incapacity. That was held to be a mistake as to the legal effect of the amendment and not merely as to its commercial consequences." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

"[15]...In my judgment, it would be contrary both to principle and to authority to confine the distinction (which I acknowledge is not always an easy one to grasp) between a mistake as to the meaning or effect of a document (which may be amenable to rectification) and one as to its consequences (which is not) to cases involving voluntary transactions. I consider that it applies to all claims for rectification..." (Ashcroft v. Barnsdale [2010] EWHC 1948 (Ch), HHJ Hodge QC)

- Mistake as to effect of document as opposed to consequences

- Distinction between error in drafting needed to obtain intended tax effect and entirely different transaction being required

 

"[43] I am satisfied that that is a sufficient mistake to found jurisdiction in a court of equity to rectify the relevant Deed of Variation, so far, at least, as the reading-back statement for Inheritance Tax purposes is concerned. I emphasise that this was a mistake which was not extraneous to the terms of the document itself. It was a mistake within the terms of the Deed of Variation. It went to the terms of that document.
[44] In that regard, the decision is entirely distinguishable from that of the Court of Appeal in the case of Allnutt v Wilding, (previously cited). Delivering the leading judgment in the Court of Appeal, Mummery LJ (at paragraph 2) described the claim as ""an unusual one."" Mr Oughton took me to paragraph 12, and also to paragraph 20 of the decision. At paragraph 12, Rimer J (who, coincidentally, was the judge at first instance in both Allnutt v Wilding and Wills v Gibbs) had correctly commented that the former case was far removed from the usual type of case in which rectification was, or might be, available. It was not a matter of correcting a mistake made in recording the settlor''s intentions by inserting words, or deleting words, or putting in different words because the words that were there had the wrong meaning. The claim made by the trustees in that case involved substituting a wholly different settlement - an interest in possessions settlement - in the place of the discretionary settlement, on the general ground that the substituted settlement would achieve the tax saving which the settlor had intended to achieve, but had failed to achieve by the document that he executed." (Vaughan-Jones v. Vaughan Jones [2015] EWHC 1086 (Ch), HHJ Hodge)

- Distinction between error in drafting needed to obtain intended tax effect and entirely different transaction being required

- Mistaken assumption as to effect of drafting

 

"[93] Yet another way would have been a covenant by the Bank not to sue the Kaushals for any sum in excess of the settlement sum or to enforce liability under the personal guarantees except by sale of the charged properties. But all these different ways are simply mechanics. They are all directed to the same end; to ensure as both parties agreed that all the charged properties could be sold by the Bank and their proceeds of sale applied towards discharge of Crowborough's indebtedness. As is sometimes said, equity looks to the intent rather than to the form.
[94] In fact the mechanism that the parties had agreed was the limited release of the Kaushals from their personal guarantees. What went wrong was that the limitation on that release was for all practical purposes removed by the drafting error that the judge found to have occurred. It may be that the cause of the error was a mistake in assumption that the change in wording would not affect the Bank's ability to look to the charged properties as part of its recovery. But in my judgment the fact that the cause of the drafting error is an erroneous assumption does not remove the drafting error from the reach of rectification. Erroneous assumptions and drafting errors are not in watertight compartments. Many drafting errors are no doubt made because the drafter has assumed that the affect of altering the wording in one respect will not affect other parts of the draft." (Lloyds TSB Bank Plc v. Crowborough Properties Limited [2013] EWCA Civ 107 - parties failed to realise that releasing guarantor from liability released security over properties, because debt not secured directly on those properties)

- Mistaken assumption as to effect of drafting

- Mistake in believing document created IIP when it did not

 

"[29] Now this is not a case where the correct document is muddled with another (cf Marley v Rawlings [2015] 1 AC 129). Nor (despite a stray reference in the evidence to the possibility of the draftsman's having copied over from the Property Trust to the Family Trust) does it appear to be a case where a clause is slipped in or missed out through a clerical or typing error. Instead it is a case where the claimant made no mistake as to which document she intended to sign, or as to the words that she intended to be included in it. But in Re Butlin's ST Brightman J held that rectification was available for cases where there was a mistake as to the legal meaning of words. It is true that what the claimant (and her draftsman) was mistaken about here was not actually the meaning of any of the words that she used in paragraph 6 of the Second Schedule, or even of the words in section 31. Instead, she (and probably her draftsman too) was mistaken as to the legal effect of using those words. But it is argued that that is nonetheless a mistake in the document which she executed which is capable of being rectified.

...

[32] In the present case the evidence satisfies me that the claimant wanted and intended to create an interest in possession trust, whereby all the Primary Beneficiaries obtained interests in possession. By using language, the legal effect of which the claimant mistook, she has failed to do so. The court therefore has power to rectify the trust deed to create the interests in possession intended." (Bullard v. Bullard [2017] EWHC 3 (Ch), Master Matthews)
 

- Mistake in believing document created IIP when it did not

- Query broader approach 

"[40] I note that the effects/consequences distinction referred to in point (2) above at the date of the decision in Racal featured also in the law of rescission for mistake. But it has since been discarded for rescission by the Supreme Court in Pitt v Holt [2013] 2 AC 108, [116]-[135]. The present case is about rectification rather than rescission. Although rectification was also mentioned briefly in Pitt v Holt, I was not addressed on its significance in this case. So I leave the question of the impact of Pitt v Holt on Racal to a case where it matters." (Lee v. Lee [2018] EWHC 149 (Ch), HHJ Paul Matthews)

- Query broader approach 

- Mistake exists if document achieves purpose through unintended route

"[57] Ms McDonnell argues that there is no flaw because the deeds do in fact achieve their purpose – they do remove the interests of John and Helen. If the only consequence of the alleged flaw is fiscal then that is not enough. This distinction between a flaw in the document which records the settlor's intentions and a flaw in those intentions was the key point in the Allnutt case...

[...]

[58] I do not agree that this case falls into the same category as Allnutt. Here the mistake is not just about the fiscal consequences of what the Deeds achieved but about the scope of the changes to the 2004 Deed that would be made. It is not the case that, for example, Joanna and Michael's trusts were revoked and re-appointed because it was thought that that would have some particular tax effect which did not, because of the drafting, in fact arise. Rather it was not intended or thought that the Deeds would affect their interests in any way, only that their spouses' interests would be removed. I recognise that if there had not been the adverse tax consequences Mr Wilson has described, the parties might not have thought it was worth coming to court to apply to rectify the Deeds. But the need for rectification can be made out here without having to refer to the tax consequences of the mistake. The mistake in the sense of a mismatch between the trustees' intention and the effect of the Deeds exists independently of the fiscal consequences even though the motivation in seeking the remedy from the court is based on those consequences. That was not the case in Allnutt; there the mistake could only be explained by reference to the tax consequences of the arrangement that the parties had intended to make and had in fact made." (RBC Trustees (CI) Limited v. Stubbs [2017] EWHC 180 (Ch), Rose J)

- Mistake exists if document achieves purpose through unintended route

- General intention about objective without any clear or specific intention re achieving not sufficient

"In the present case the judge found that, although the relevant individuals understood the effect of the accession deeds to be that the Parent would become bound by the terms of the IRSAs, they did not review all the terms of those agreements and did not know or intend that those terms would include the Additional Obligations, as well as terms which assigned the Parent's interest in the shareholder loan as security for the obligations secured by the IRSAs. Despite the valiant efforts of Mr Masefield to argue otherwise, the judge was undoubtedly correct to characterise this mistake as a mistake about the legal effect of the contractual documents and not just about their commercial consequences. This is not a case in which the parties had merely a general intention about the objective they ultimately wished to achieve without any clear or specific intention about how it was to be achieved. Rather, on the judge's factual findings their common intention was the legally specific one of binding the Parent to particular contract terms – but not to other specific terms which were contained in the same document. This is a classic case for rectification." (FSHC Group Holdings Limited v. Glas Trust Corporation Limited [2019] EWCA Civ 1361, Leggatt, Rose, Flaux LJJJ)

- General intention about objective without any clear or specific intention re achieving not sufficient

- Specific intention to achieve a particular purpose sufficient to identify intention to achieve that purpose without unexpected results

 

"[42] Having identified the true intention and the fact that it did not include an intention to change the claimant's life interests, it follows that, in so far as the written document did so, it was flawed. The 2013 Deeds are flawed because, as Rose J put it in RBC Trustees v Stubbs, they make changes to the arrangements that were not intended, and not wanted or needed.
[43] As to nature of the flaw, as in RBC Trustees v Stubbs, the mistake is not just about the fiscal consequences of what the 2013 Deeds effected, but about the scope of the changes to the 2005 Deeds that would be made. This is not a case where the claimant's life interests were re-appointed because it was thought that that would have some particular tax effect which did not, because of the drafting, in fact arise. Rather, it was not intended or thought that the 2013 Deeds would affect his interests in any way, only that beneficiaries would be added, and the default trusts thereby changed." (Ware v. Ware [2021] EWHC 694 (Ch), Master Clark)

"[61] The First Defendant argues that in order to make good a claim for rectification here the trustees must demonstrate that they had a positive intention not to revoke and reappoint the interests in possession. I do not read the authorities as requiring the applicant in a rectification claim to go that far and such a requirement would lead to a counterintuitive result. If a mistake is made in giving effect to the trustees' intentions that mistake can create all sorts of unexpected results. It cannot be right that the trustees have to show that they turned their mind to that unexpected result and formed a specific intention not to do that. That would mean that the more bizarre the result of the mistake, the less likely it would be that the trustees could say that they thought about that possibility and deliberately decided not to bring about that result." (RBC Trustees (CI) Limited v. Stubbs [2017] EWHC 180 (Ch), Rose J)

- Specific intention to achieve a particular purpose sufficient to identify intention to achieve that purpose without unexpected results

- Provided intended effect clearly proved, relaxed approach to precise terms

"[35] In relation to this issue, provided the intended effect is clearly proved, the courts appear to have taken a relatively relaxed approach to the precise terms in which that effect was to be achieved in the instrument. In Swainland Builders Ltd v Freehold Properties Ltd [2002] EWCA 560 (a case concerning rectification for common mistake in a bilateral document) Peter Gibson LJ observed at paragraph 34:
"Whilst it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if in substance and in detail the common intention can be ascertained: Cooperative Insurance Society Ltd v Centremoor Ltd [1983] 2 EGLR 52 at page 54, per Dillon LJ, with whom Kerr and Eveleigh LJJ agreed."
See also Wills v Gibbs [2008] STC 808, per Rimer J (as he then was) at paragraph 25, Ashcroft v Barnsdale [2010] STC 2544, and Vallings v Gibbon [2013] EWHC 2862 (Ch)." (Bolton v. RNIB [2014] EWHC 1373 (Ch), Barling J)

- Provided intended effect clearly proved, relaxed approach to precise terms

- Parties need not have agreed mechanics for giving effect to simple intention (e.g. terms of long lease)

 

"[93] Yet another way would have been a covenant by the Bank not to sue the Kaushals for any sum in excess of the settlement sum or to enforce liability under the personal guarantees except by sale of the charged properties. But all these different ways are simply mechanics. They are all directed to the same end; to ensure as both parties agreed that all the charged properties could be sold by the Bank and their proceeds of sale applied towards discharge of Crowborough's indebtedness. As is sometimes said, equity looks to the intent rather than to the form." (Lloyds TSB Bank Plc v. Crowborough Properties Limited [2013] EWCA Civ 107)

"[43] Mr Wayne Clark for the claimant concedes, as he must, that there was never any common intention that the transfer should contain the specific provisions ordered by the judge to be included in the transfer. But Mr Clark submits that that does not prevent rectification in a manner appropriate to give effect to the common intention. I agree. I find helpful the way Sir Raymond Evershed MR in Whiteside v Whiteside [1950] Ch 65 at pages 75 and 76 formulated the appropriate principle, that is to say, where a document has been executed which does not carry out the intention of the parties, each party has the right against the other to have the document reformed in such manner that the document will place each other in the same position vis-à-vis each other as they intended. I emphasise that formulation, as it seems to me that it correctly distinguishes between the common intention to which effect has not been given by the unrectified document and the remedy which the court can order. The court can grant relief by putting the parties in the same position vis-à-vis each other as they intended.
[44] No doubt in most cases it will be possible to see from the material which the parties have considered and about which they reached a common intention the precise wording to be included in the document to be rectified. In the unusual case such as the present, there may be more than one way of achieving the common intention. Mr Perry for the defendant accepted in cross-examination that he would not have objected to the inclusion in the transfer of a requirement to grant leases back to the claimant of the two flats. I see no reason in principle why equity should be prevented from giving relief merely because the parties had not agreed on the mechanics by which effect should be given to a clear and simple common intention." (Swainland Builders Limited v. Freehold Properties Limited [2002] EWCA Civ 560, Peter Gibson LJ)

- Parties need not have agreed mechanics for giving effect to simple intention (e.g. terms of long lease)

- Intention to achieve a certain tax result without understanding how it could be achieved rectified

 

"[24] I regard that authority [Jervis v Howle and Talke Colliery Co Ltd [1937] Ch 67] as providing a useful guide to the disposition of the present case. The parties had not agreed a formula corresponding to one that would operate if the lease were rectified as sought. They had, in effect, agreed that the royalty would be paid gross and had given no thought to the obligation to deduct tax. Since what they had agreed could not be achieved by the simple route they favoured, the court was prepared to rectify their agreement so as to incorporate a formula which as a matter of law would achieve substantially, if not exactly, the same commercial result they had intended, which was that the Plaintiff would receive his three pence royalty gross.

[25] So also in the present case it appears to me that to rectify the deed of variation as sought will be to give effect to the legal result that Peter intended. His intention was that the deed should have the effect provided by ss 142 and 62, albeit that he did not necessarily know that those were the statutory provisions which governed the matter; and he obviously also intended that the deed should comply with the formalities of those sections. Its omission to do so was, I find, an unintended mistake on the part of Peter's agent, Mr Mitchell, to whom he entrusted the preparation of the document. I am satisfied that I can and should order the deed to be rectified in the manner which is asked, that is, by adding an additional cl 7 reading “The parties hereto hereby declare that the provisions of s 142(1) of the Inheritance Tax Act 1984 and s 62(6) of the Taxation of Chargeable Gains Act 1992 shall apply to this deed.”" (Wills v. Gibbs [2007] EWHC 3361 (Ch), Rimer J)

- Intention to achieve a certain tax result without understanding how it could be achieved rectified

(5) Issue capable of being contested

(5) Issue capable of being contested

- Change to the date of document governing interest is material change

 

"[48] In this case, the same non-fiscal issue arises, namely whether the interests of the claimant, and his future children, arise under the 2005 Deeds or the 2013 Deeds.
In RBC Trustees v Stubbs, a practical consequence of this issue was identified, namely that if the life tenants' interests arose under the later deeds rather than the earlier deeds, the provisions of the Trusts (Capital and Income Act) 2013 abolishing the statutory rules of apportionment might have some effect as the later deeds were made after the date it came into force on 1st October 2013.
In this case, the 2013 Deeds were made before 1 October 2013, so the same consideration does not apply. However, this consequence was not crucial to Rose J's decision that there was an issue capable of being contested, as the extract from [65] of her judgment set out above shows. At [67], she held that "a change to the date of the governing document is a material change that creates a contestable issue of the kind that was being referred to by the Racal judgment."" (Ware v. Ware [2021] EWHC 694 (Ch), Master Clark)

- Change to the date of document governing interest is material change

- Shared common purpose of obtaining tax advantage required where tax is only effect of relief

 

"[60] Since there was no conscious tax-based motive for the 2011 contract, in my judgment the door is closed to the remedy of rectification because the 2018 rectification deed has fully resolved the rights of the parties to that deed as between themselves and there is therefore no reason for the court to exercise its discretion to grant the equitable remedy of rectification. A shared common purpose of achieving a relevant tax advantage is required to justify the grant of that remedy where achieving that tax advantage is the only conceivable reason for the grant of that relief. In the present case rectification is being sought in order to achieve what is now perceived to be a tax-efficient structure where no specific intention to adopt such a structure existed at the time of the entry into the relevant contract. I am satisfied that the authorities warrant a distinction between the putting in place of a specifically intended tax-efficient structure and the creation of such a structure in circumstances where none was intended at the date of the relevant document." (MV Promotions Limited v. Telegraph Media Group Limited [2020] EWHC 1357 (Ch), HHJ Hodge QC)

- Shared common purpose of obtaining tax advantage required where tax is only effect of relief

Examples

Examples

- Rectification of deed of variation to include statement re tax

"[42] In his witness statement, the first claimant says, in terms, that it was the intention of all parties to the Deed of Variation, and of its draftsman, Mr Evans, that it should be back-dated to the date of death for the purposes of Inheritance Tax. I accept that evidence. It is supported by the attendance note and by the whole objective that the transaction was intended to achieve. The attendance note is permeated by references to the need to achieve a particular result within two years of the date of death in order to achieve Inheritance Tax savings. The mistake was in failing to give effect to the right machinery for achieving that.
[43] I am satisfied that that is a sufficient mistake to found jurisdiction in a court of equity to rectify the relevant Deed of Variation, so far, at least, as the reading-back statement for Inheritance Tax purposes is concerned. I emphasise that this was a mistake which was not extraneous to the terms of the document itself. It was a mistake within the terms of the Deed of Variation. It went to the terms of that document.

[...]

[53] For those reasons, I will make an order in the terms sought by Mr Oughton, but with the omission of any reference to the provisions of section 62, and its relevant subsections, of the Taxation of Chargeable Gains Act 1992. There is to be no order as to costs as between the claimants and the defendants. As stated at the end of the first-named claimant''s witness statement, they are to be picked up by the insurers for the draftsman of the Deed of Variation. Such an approach is entirely consistent with the approach of the Supreme Court in Marley v Rawlings (No. 2), relating to a contested claim, which went all the way to the Supreme Court, for the rectification of a will." (Vaughan-Jones v. Vaughan Jones [2015] EWHC 1086 (Ch), HHJ Hodge)

"[25] So also in the present case it appears to me that to rectify the deed of variation as sought will be to give effect to the legal result that Peter intended. His intention was that the deed should have the effect provided by ss 142 and 62, albeit that he did not necessarily know that those were the statutory provisions which governed the matter; and he obviously also intended that the deed should comply with the formalities of those sections. Its omission to do so was, I find, an unintended mistake on the part of Peter's agent, Mr Mitchell, to whom he entrusted the preparation of the document. I am satisfied that I can and should order the deed to be rectified in the manner which is asked, that is, by adding an additional cl 7 reading “The parties hereto hereby declare that the provisions of s 142(1) of the Inheritance Tax Act 1984 and s 62(6) of the Taxation of Chargeable Gains Act 1992 shall apply to this deed.”" (Wills v. Gibbs [2007] EWHC 3361 (Ch), Rimer J)

But no statement re CGT if that tax was not in anyone's mind

"[45]...What I am not satisfied of, on the evidence, was that there was any relevant intention on the part of anyone to include a reading-back statement for the purposes also of Capital Gains Tax. There is no reference to Capital Gains Tax, or any other tax, in the attendance note. Given the high standard of convincing proof required in a claim for rectification, I am not satisfied that a case to rectify the Deed of Variation by including any reference to the statement required by section 62(7) of the Taxation of Chargeable Gains Act 1992 has been made out." (Vaughan-Jones v. Vaughan Jones [2015] EWHC 1086 (Ch), HHJ Hodge)

- Rectification of deed of variation to include statement re tax

- Discretionary trust not rewritten as an interest in possession trust due to mistake about transfer to the trust being chargeable to IHT

"[3] The aim of those instructions was to achieve a saving of inheritance tax on his death. So he paid the sum of £550,000 to the trustees of the settlement in 1995 under a mistaken belief that the transfer would be a PET for inheritance tax purposes. It was not. The reason it was not was because the settlement contained discretionary trusts for the three children rather than creating interests in possession for them. The claim for rectification is that the settlement should be rewritten so that, instead of being a discretionary trust, it is an interest in possession trust, which would take effect as from the date of the execution of the original settlement. The settlement, as rectified, would then, it is argued, reflect the settlor's true intentions and would thereby achieve the intended tax saving. The interested parties, who are the beneficiaries under the settlement, being the settlor's three children, would obviously benefit from rectification if inheritance tax were not payable on their trust fund. Naturally, they consent to the relief claimed by the trustees.

...

[19] I am unable to accept the trustees' submission on the availability of rectification in this case. The position is that the settlor intended to execute the settlement which he in fact executed, conferring benefits on his three children. The settlement correctly records his intention to benefit them through the medium of a trust rather than the alternative of making direct gifts in their favour. I am unable to see any mistake by the settlor in the recording of his intentions in the settlement. The mistake of the settlor and his advisers was in believing that the nature of the trusts declared in the settlement for the three children created a situation in which the subsequent transfer of funds by him to the trustees would qualify as a PET and could, if he survived long enough, result in the saving of inheritance tax.

[20] That sort of mistake about the potential fiscal effects of a payment following the execution of the settlement does not, in my judgment, satisfy the necessary conditions for grant of rectification. The mistake did not result in the incorrect recording of his intentions..." (Allnutt v. Wilding [2007] EWCA Civ 412, Mummery LJ)

- Discretionary trust not rewritten as an interest in possession trust due to mistake about transfer to the trust being chargeable to IHT

- Deed of variation rectified where intended to redirect whole entitlement rather than part

 

"[36] I have already found that in the present case the Claimant has established what was actually intended to be the effect of the Deed of Variation, namely to redirect the entirety of Ellen's entitlement under Hilda's Will to the Four Charities, rather than just her entitlement in respect of the residue. In my view that intention has been proved with the requisite precision, even though, as the Claimant indicates in the Witness Statement, there may be more than one route to achieving this within the Deed of Variation.
[37] The Claimant submits that if rectification of the Deed of Variation is granted, it should be implemented by providing for the deletion of clause 2(a) of the Hilda's Will, which made the specific devise of the Property to Ellen. It is clear that this, when combined with the Deed of Variation's existing redirection of the residue of Hilda's estate to the Four Charities, would achieve the Claimant's original intention. I also accept that this is the route which is most consistent with the premise upon which the Memoranda were made." (Bolton v. RNIB [2014] EWHC 1373 (Ch), Barling J)

- Deed of variation rectified where intended to redirect whole entitlement rather than part

- Failing to realise that a gift would bear its own IHT unless the contrary was stated: rectified

 

"[5] Following the submission of the Inheritance Tax Account (Form IHT 200) to the Inland Revenue, together with payment of the anticipated tax liability of some £50,000, on 20th December 2006 HM Revenue & Customs ("HMRC") wrote to Kidd Rapinet enclosing a calculation showing some £33,000 to be due by way of additional inheritance tax. This arose because the gift of £410,000 to the children under the Will as varied was (by section 211 of the Inheritance Tax Act 1984) to be treated as free of tax and therefore had to be grossed up under section 38. Since, under the Deed of Variation, the Claimant was to be treated as the residuary beneficiary, it fell to him to bear the incidence of the inheritance tax. As the Claimant explains at paragraph 9 of his witness statement: "This was not what was agreed between the children and me and not what we had thought was the deed's effect. Under Charlotte's will the children, as the residuary beneficiaries, had borne the IHT which was payable. Our intention in entering into the deed was not that I would assume the IHT liability. If this aspect of the deed's effect had been explained to me I would not have executed it but would have asked for it to be amended so as to ensure that the children continued to bear the IHT liability. I am advised that this could have been easily achieved by inserting the words 'subject to inheritance tax' in clause 2.1(a) of the deed." However, the Claimant was advised that HMRC's view of the Deed of Variation was correct; and he therefore paid the inheritance tax which was said to be due.

...

[20] I am satisfied that this is not a case where the parties merely proceeded under a misapprehension as to the true fiscal consequences of the Deed of Variation as actually drafted. Rather, the Claimant has demonstrated a specific common intention as to how the parties' fiscal objectives were to be achieved; and he has established that, owing to a mistake in the way in which that intention was expressed in the Deed of Variation, effect has not been given to that intention. Underlying the parties' adoption of the Deed of Variation was the common intention, unarticulated and unexpressed, that the Claimant should receive his entitlement under his late wife's will, as varied, free from all liability for inheritance tax, thereby replicating the position under the Will as executed. There was never any intention to vary the burden of, or the incidence of the parties' liability for, inheritance tax. To the extent that the Deed of Variation had this effect, then it was executed under a relevant mistake, because it failed to give effect to the parties' true intention. To paraphrase the approach of Sir Raymond Evershed MR in Whiteside v Whiteside [1950] Ch 65 at 74, the mistake consisted in using language to perfect an agreement which in law had some result different from the common intention: the fact that the mistake arose from the legal effect of the language used in the Deed of Variation provides a ground for the exercise of the court's reforming power. The truth is that the parties, and their professional advisors, failed to appreciate that, in order to achieve their true objective, they needed to insert the words "subject to inheritance tax" in clause 2.1(a) of the Will as varied." (Ashcroft v. Barnsdale [2010] EWHC 1948 (Ch), HHJ Hodge QC)

- Failing to realise that a gift would bear its own IHT unless the contrary was stated: rectified

- Deed of appointment rectified to appoint only assets that bore IHT

"[64]...The question the Master asked herself, in relation to each of the Claimant and Catherine, was whether the required intention had been demonstrated. The required intention was an intention that clause 2.1 of the Deed of Appointment should appoint to Catherine a life interest in the income from the IHT Liable Assets, as opposed to a life interest in the income from the entirety of the Trust Fund. This required intention had to be demonstrated as having been the intention of each and both of the Claimant and Catherine when they signed the Deed of Appointment. For ease of reference I will refer to this required intention as "the Required Intention".

...

[116] In summary, and although my reasoning does not bear much resemblance to the submissions made to me on the Appeal, I conclude that the evidence did demonstrate that the Claimant had the Required Intention when she signed the Deed of Appointment. I conclude that the Master was wrong to decide that this had not been demonstrated." (Laird v. Simcock [2023] EWHC 2054 (Ch), Edwin Johnson J)

- Deed of appointment rectified to appoint only assets that bore IHT

- Intended to transfer into joint names but no intention to grant beneficial interest: mistake as to legal effect

 

"[35] The judge found that Mrs Day had no intention to give a beneficial interest in her house to Terence. On the other hand he found that she did intend that the house would be put into their joint names for the purpose of enabling him to raise money on mortgage. The legal transaction that would have given effect to both limbs of her intention would have been a conveyance into the joint names of Mrs Day and Terence on trust for Mrs Day alone. In fact the transaction that Mr Froud executed under the general power of attorney was a conveyance to the two of them to hold as beneficial joint tenants in equity. The legal consequence of this transaction is that Mrs Day gave up sole ownership of the house and, potentially all beneficial interest in it if (as happened) she died without severing the joint tenancy in equity.

...

[45] In our case there was a mistake by Mrs Day as to the legal effect of the transaction. She did not intend to give away a beneficial interest in her house; but that was the effect of the conveyance. The mistake was of sufficient gravity to satisfy the Ogilvie v Littleboy test; namely that it is unjust for Terence to retain the benefit of the gift..." (Day v. Day [2013] EWCA Civ 280, Lewison LJ)

- Intended to transfer into joint names but no intention to grant beneficial interest: mistake as to legal effect

- Revocation of interest of one beneficiary achieved by revoking and re-appointing trusts for all: rectified 

 

"[33] The Claimants say that both the 2008 and 2014 Deeds contain a mistake because they do not simply do what was intended, namely to revoke the spouse's successive life interest but also for no good reason revoked and re-appointed the trusts in relation to Michael's and Joanna's life interest in their Settled Shares. The mistakes were only discovered during the course of Michael's divorce proceedings.
[34] The effect of this from an inheritance tax point of view is described by Mr Wilson as 'catastrophic':...

[...]

[55] I am satisfied, having approached the evidence with the appropriate degree of caution, that the intention of the trustees and the settlor was only to revoke the successive life interests of John and Helen.

[56] I consider that the two Deeds are flawed because they make changes to the arrangements that were not intended and not wanted or needed." (RBC Trustees (CI) Limited v. Stubbs [2017] EWHC 180 (Ch), Rose J)

- Revocation of interest of one beneficiary achieved by revoking and re-appointing trusts for all: rectified 

- Deed to appoint further beneficiaries mistakenly revoking IIP: rectified

 

"[54] In contrast to these two cases, in this case, it is clear what legal effect was intended by trustees in making the 2013 Deeds, i.e. that the classes of beneficiaries would be added to, thereby altering the trusts which might take effect subject to the claimant's life interests. In going beyond this and terminating and re-appointing his life interests, the 2013 Deeds had an unintended legal effect. The mistake is not merely as to fiscal consequences. Accordingly, they may be rectified." (Ware v. Ware [2021] EWHC 694 (Ch), Master Clark)

- Deed to appoint further beneficiaries mistakenly revoking IIP: rectified

- Mistake as to identity of counterparty: relief refused because mistake already corrected and tax effect not part of bargain

 

"[62] In my judgment, a specific tax advantage is required as part of the bargain between the parties as a necessary pre-condition to the grant of the equitable remedy of rectification if the parties have already corrected any relevant mistake in the underlying document by entering into a deed of rectification. In the present case, by the 2018 rectification deed the three parties concerned have already declared that the wording of the 2011 contract, properly construed, has, and has always had, the effect that they say it was always truly intended to have. Since the 2018 rectification deed fully resolves any issue between the parties, there is nothing left for the court to adjudicate upon between the parties as to their respective rights and obligations. In my judgment, it is still one of the maxims of equity that "equity does not act in vain"; and that broad, underlying principle is relevant when the court is called upon to exercise an equitable, remedial discretion. Had the entry into or the terms of the 2011 contract been motivated by tax considerations, whether in whole or in part, then there would still have been something left to be resolved even after the 2018 rectification deed; but since there was no such underlying tax motivation, there is nothing left to rectify. In light of the 2018 rectification deed, there can be no prospect of any future litigation between the three parties thereto because there is nothing outstanding left to be resolved between them. HMRC's treatment for tax purposes of the income arising under the 2011 contract does not affect the position of the parties as between themselves, but only their position in relation to HMRC. Mr Vaughan cannot now complain that he has not received any payment from TMG. It is only his position in relation to HMRC that is affected; but on the evidence that was not a consideration that motivated the entry into or the terms of the 2011 contract. The existence of a dispute between Mr Vaughan and HMRC does not justify the grant of the equitable remedy of rectification because that dispute does not affect the rights of the parties to the 2011 contract as between themselves." (MV Promotions Limited v. Telegraph Media Group Limited [2020] EWHC 1357 (Ch), HHJ Hodge QC)

- Mistake as to identity of counterparty: relief refused because mistake already corrected and tax effect not part of bargain

- Mistake as to number of shares required to qualify for Entrepreneurs' Relief: rectified

 

"[28] The defendants similarly had no involvement in arriving at the precise figure to be transferred to them. They attended a number of meetings in 2012 at which the plan to transfer sufficient shares to them to enable them to qualify for ER was discussed. It is clear from the defendants' evidence and the minutes of the meetings attended by them that they understood the relevant requirement to be ownership of a 5% shareholding, without drawing any distinction between the numbers of shares held and the nominal value of those shares. Both defendants were aware that the transfer had to be of a sufficient number of shares to satisfy the ER requirements, but left the determination of that number to Mr Cull.

...

[36] In my judgment the evidence sufficiently establishes that the parties' intention was that the defendants should receive from the 1968 settlement enough shares (when combined with the shares they received from the 1987 settlement) to satisfy the ER requirements. As in Vaughan-Jones, they left the precise calculation of the relevant number to Mr Cull, and he made a mistake in that calculation. In my judgment therefore the claimants have shown a sufficient mistake to found the jurisdiction to rectify the agreements.

...

[38] It follows from my findings above, that the parties to the agreements had a sufficiently specific intention which was not reflected in the agreements as executed by them. The fact that they left the precise number of shares to be determined by Mr Cull to decide does not prevent their intention from being sufficiently specific." (Prowting 1968 Trustee One Limited v. Amos-Yeo [2015] EWHC 2480 (Ch), Master Clark)

- Mistake as to number of shares required to qualify for Entrepreneurs' Relief: rectified

RESCISSION

RESCISSION

Rescission in the FTT

 

"[78] The question before me therefore is, having found that Mr Hymanson would be granted an order of rescission from the High Court were he to go to the High Court, should I then force him to go through that process, at the cost of significant expense and time, or should I attempt to short-cut the process.

[79] Proudman J summarises the position in Lobler , at [47] and [48] as:

          “Thus although the FTT did not itself have power to order rectification, it could determine that if rectification would be granted by a court who does have jurisdiction to grant it, Mr Lobler’s tax position would follow as if such rectification had been granted.

It has never been suggested that before the effect of the availability of specific performance can be taken into account by the FTT, the appellant must go to court and actually obtain the remedy of specific performance.  On the contrary, the cases show that this is not the case: see Oughtred v. IRC [1960] AC 206, Jerome v. Kelly [2004] UKHL 25, BMBF (No 24) Limited v. IRC [2002] STC 1450 and HSP Financial Planning Limited v. HMRC [2011] UKFTT 106 (TC).  A tribunal such as the FTT must however take into account all the factors that the Court would in deciding whether specific performance would be available, such as whether damages would be inadequate, whether specific performance would require constant supervision, whether the appellant is ready, willing and able to perform, hardship and so on.”

[80]  In this case we are not of course talking about rectification.  Rectification would not be an appropriate remedy in this case because that would leave the essential elements of the transaction, ie the additional payments, intact.  Nor are we considering the remedies of damages or specific performance, neither of which would be appropriate.  In this case the only effective remedy would be rescission.

[81] Mr Waldegrave, for HMRC, said that HMRC believe that Lobler was wrongly decided.  This may be so, but it is binding on me unless I can find sufficient distinguishing features that would lead me to a different conclusion.

...

[92] I therefore come to the conclusion that Mr Hymanson would be entitled to rescission if he were to take his case to the High Court and that his tax position should therefore to be determined as if that remedy had been granted." (Hymanson v. HMRC [2018] UKFTT 667 (TC), Judge Gillett)

Rescission in the FTT

No tax mistake where person deliberately took the risk tax results might not be achieved

 

"[137] Mr Levack says that he and Mr Rhoden decided to proceed with the Remuneration Trusts immediately after leaving the meeting with Mr Baxendale Walker in early February 2010. That is before they had any opportunity to consider the documents that were provided at the meeting, or the documents that were received later, or to take advice. The failure by Mr Levack to consider the documents provided by Baxendale Walker LLP, or to obtain advice from someone who could interpret them, also demonstrates a cavalier attitude to risk. There is no evidence of any due diligence having been undertaken by Mr Levack. He was prepared to accept Mr Baxendale Walker’s views that were expressed in the course of a meeting without subsequently reading any of the documents that were provided or seeking independent advice. Were it necessary to do so I would conclude that the claimants deliberately ran the risk of the schemes not operating in the way Mr Baxendale Walker’s sales pitch had suggested.

[138] There is, equally, inadequate evidence about the attitude to risk of the board of directors of Dukeries and Riverside. The evidence comes nowhere near to demonstrating that the collective understanding of the respective boards was materially mistaken or what the board’s view was about the risks involved. In the case of Mr Levack himself, his evidence does not meet the requisite threshold.

 [139] Furthermore, the schemes are properly characterised as being artificial tax avoidance. Even if there was no actual assumption of risk, it is reasonable in this case, based upon the factors I have summarised above, to conclude that Mr Levack and the companies must be taken to have accepted the risks of the schemes failing." (Dukeries Healthcare Limited v. Bay Trust International Limited [2021] EWHC 2086 (Ch), Deputy Master Marsh)

No tax mistake where person deliberately took the risk tax results might not be achieved

SPECIFIC PERFORMANCE

SPECIFIC PERFORMANCE​​

Purchaser of land treated as beneficial owner before completion

 

"[87] In our view, the authorities in this area make it plain that, by virtue of the fact that the purchase price for the Property was paid in full when the Sale Agreement was executed, beneficial ownership of the Property passed at that time from Mrs Elborne to the trustees of the Life Settlement and therefore that Mrs Elborne was not the beneficial owner of the Property when she died. 

[88] We think that the fact that the whole of the purchase price was paid up-front on execution of the Sale Agreement means that this case is readily distinguishable from the uncompleted executory contract pursuant to which none of the consideration had been paid, which was the situation being addressed by the House of Lords in Jerome. 

[89] The decision in Ezair raises a different question in this area, dealing as it does with the rights which the beneficial owner under a sale agreement that has not yet been completed is entitled to create prior to completion.  The basis of Patten LJ’s decision in that case, which relied on the decision of the Supreme Court in Southern Pacific and the Court of Appeal decision in Berkley, is that a contractual purchaser (such as B in Ezair) cannot create rights of a proprietary character which would take priority over other interests in land until the contractual purchaser has acquired the legal estate in the land. When applied to the facts in this case, it means that the trustees of the Life Settlement would have been unable to create proprietary rights over the Property by entering into a contract with a sub-purchaser in relation to the Property prior to acquiring the legal estate in the Property on completion. 

[90] However, that is not the question which we are addressing.  The fact that the trustees of the Life Settlement would have had to acquire the legal estate in the Property before they were able to create proprietary interests in the Property does not mean that the trustees were not the beneficial owners of the Property from the time that the Sale Agreement was executed or, more relevantly, that Mrs Elborne remained the beneficial owner of the Property from that time.  The authorities cited by Mr Bradley and referred to in paragraphs 83 to 86 above are, in our view, compelling that the beneficial ownership of the Property when Mrs Elborne died was vested in the trustees of the Life Settlement and not with Mrs Elborne notwithstanding the fact that completion had not yet occurred." (Executors of Elborne v. HMRC [2023 UKFTT 626 (TC), Judge Beare)

Purchaser of land treated as beneficial owner before completion
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