Rectifying Rectification: The Subjective Approach to Rectification for Common Mistake

Abstract

This article analyses the law of rectification for common mistake in the light of the decision of the Court of Appeal in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd. It suggests that the court in FSHC was correct to prefer a subjective test for common continuing intention over the objective test that had been preferred by Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd in what is labelled the “no antecedent contract” situation. The article also considers the significance of the requirement of an “outward expression of accord” as a discrete element of an action for rectification and what this might mean in practical terms.