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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Industrial Acoustics Company Ltd. v Crowhurst & Ors  EWHC 1614 (Ch) (15 May 2012)
Cite as:  EWHC 1614 (Ch)
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B e f o r e :
|INDUSTRIAL ACOUSTICS COMPANY LIMITED||Claimant/Applicant|
|- and -|
|(1) MR GEOFFREY CROWHURST|
|(2) MR MURRAY BUDD|
|(3) MS JODIE EVERETT|
|(4) MR RUSSELL HAGERTY||Defendants/Respondents|
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: firstname.lastname@example.org
MR DAVID GRANT (Instructed by Messrs Blake Lapthorn) appeared on behalf of the First to Third Defendants/Respondents
MR KEITH BRYANT (Instructed by Messrs Wragge & Co LLP) appeared on behalf of the Fourth Defendant/Respondent
Crown Copyright ©
MR JUSTICE VOS:
"… with effect from 6 April 1988
1 the present Rules of the Scheme [the 1978 Rules] shall cease to apply …
2 the Rules contained in the Schedule [the 1998 rules] hereto shall be adopted as the Rules of the Scheme…"
"1. The Rules of the Scheme brought into effect by the Resolution dated 28 September 1998 be rectified by deleting the definition of 'Normal Retiring Date' and substituting the following so that the definition reads:
'Normal Retiring Date means the 65th birthday'
2. The Rules annexed to the Resolution dated 2 February 1999 be rectified by deleting the definition of 'Normal Retiring Date' and substituting the following so that the definition reads:
'Normal Retiring Date means' the 65th birthday."
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
(a) it considers that -
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
The position of the parties
The law on rectification
"The party seeking rectification must show that:
(1)the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified;
(2)there was an outward expression of accord;
(3) the intention continued at the time of the execution of the instrument sought to be rectified;
(4) by mistake the instrument did not reflect that common intention."
"Lord Hoffmann's clarification was that the required "common continuing intention" is not a mere subjective belief but rather what an objective observer would have thought the intention to be: see Chartbrookat . In other words, the requirements of "an outward expression of accord" and "common continuing intention" are not separate conditions, but two sides of the same coin, since an uncommunicated inward intention is irrelevant. I suggest that Gibson LJ's statement of the requirements for rectification for mutual mistake can be re-phrased as: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) which existed at the time of execution of the instrument sought to be rectified; (3) such common continuing intention to be established objectively, that is to say by reference to what an objective observer would have thought the intentions of the parties to be; and (4) by mistake, the instrument did not reflect that common intention."
"In my opinion, to the extent that there is a difference between these two formulations [that of Etherton LJ and that of Toulson LJ], that of Etherton LJ is to be preferred. As is true in most rectification cases, there is no question of the prior accord in this case having been legally binding, so there was no need for DDC to agree to DDH's resiling from the prior accord, before that resiling could be effective. And, if DDH made it clear, according to the normal objective test, that it was so resiling before the Transfer Agreement was entered into, then it is hard to see how the "common continuing intention" (as objectively assessed) could be said to have "continued [up to] the time of the execution of the instrument sought to be rectified" to quote from a passage in the judgment of Peter Gibson LJ in Swainland Builders Ltd v Freehold Properties Ltd 2 EGLR 71, 74, para 33, approved in Chartbrook …"
"… first, that documents relating to pension schemes, be they trust deeds, rules or amendments to either, are as amenable to rectification as any other document with a legal effect. Second, it is necessary to show that the relevant employer or employers and the trustees shared the same intention, whether or not an outward expression of accord is required, down to the execution of the deed in question. Third, rectification will only be granted if there is convincing proof on a balance of probabilities that the employer and the trustees held the requisite common intention as to the meaning or effect of the relevant documents."
"In Munt v Beasley EWCA Civ 370 Mummery LJ said at paragraph 36 of the judgment that it was wrong to treat "an outward expression of accord" as a strict legal requirement in a case where the other parties to the transaction (the pension trustees) have admitted that their true state of belief when they entered into the transaction was the same as that of the other party and there was therefore a continuing common intention which, by mistake, was not given in effect in the relevant legal document."
Common continuing intention
The application of the tests
The representation order