Rectification is a remedy available in Scots law that allows a document (such as a contract, lease or missives for a property purchase), which does not demonstrate the mutual intention of the parties it binds, to be altered by the court.
For a court to provide such a solution you need to show much more than just a bad bargain and the function of the court in this regard is set out in Section 8(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
In the recent Court of Session case of Purvis and Others v Ferris and Drysdale [2022] the remedy of rectification came to the fore. In that case, Lord Turnbull explained that an essential requirement for a rectification action is that:
“an antecedent agreement must have existed, the parties to that agreement must have intended that it be expressed in a document and that the document fails accurately to express that common intention. The earlier agreement reached does not have to be legally binding but the court may require to take a different approach depending upon whether it is or is not.”
The case was about an area of farmland that was split into multiple lots, it included a farmhouse, farmland, and a farm steading. The purchaser was aware that the seller wished to remain in the farmhouse and retain some land and so an agreement was reached to amend the lots covered in the agreement.
Unfortunately, although this arrangement was discussed in writing and verbally, this was not detailed effectively in the missives or the disposition and ultimately the steading was not included. This was not brought to light till sometime later and ultimately an application for rectification was brought to the Court.
Lord Turnbull took into consideration the correspondence between the parties, the conduct of the purchaser and seller, and heard evidence from many of those involved in the transaction, including solicitors and accountants as well as the seller and purchasers’ representatives.
The judge on this occasion granted rectification but made it very clear that “a high quality of evidence is required to persuade the court to grant rectification of written documents… and the party bearing the burden of proof faces a stiff hurdle to overcome.”
Rectification is an important remedy; it is hard to obtain and in some ways is a remedy of last resort. When your bargain is inaccurately recorded in writing it’s a remedy that needs to be considered but should be employed with caution and the appropriate professional advice.
If your bargain has gone wrong do contact our Dispute Resolution and Litigation team, we are here to help.
Article published 5 October 2023.
