Charles Edward Porter and another v Robert Stokes (Personal Representative of the Estate of Walter Edward Stokes, deceased) (Trinidad and Tobago)

Where a deed is executed to implement an earlier binding contract, rectification vindicates the contractual right by bringing the deed into conformity with the contract. The contract is construed objectively, and the claimant need not prove a different common intention by strong witness evidence. The contract remains operative unless rescinded or varied; the mere passage of a completion date does not end it. A defendant may contend that the contract itself should be rectified, but must show that both parties outwardly manifested a common intention to exclude the relevant term. On appeal, factual findings may be reopened where unsupported by evidence, based on a misunderstanding, or outside the range of conclusions reasonably open to the trial judge. After a long delay, surviving documents may provide the most reliable means of testing the evidence.

The Porters acquired a main parcel of land from Walter Stokes under a 1982 Contract which expressly included an adjoining access strip. The subsequent Deed conveyed the main parcel but omitted the strip, although its plan, schedule and reservation of a right of way referred to it. The Porters sought rectification of the Deed. Charles J dismissed the claim in December 2013, but the Court of Appeal of the Republic of Trinidad and Tobago unanimously reversed that decision and ordered rectification in June 2019.

The appeal concerned whether the Court of Appeal was entitled to revisit the trial judge’s factual findings and, if so, whether rectification was justified.

Appeal dismissed. The Board upheld the order for rectification, although its reasoning differed slightly from that of the Court of Appeal.

1. Rectification based on an earlier binding contract is distinct from rectification based only on a mutually expressed common intention. In the former case, the remedy vindicates the contractual right by bringing the later instrument into conformity with the objectively construed contract. The Board accepted the specific-performance analysis associated with Lovell & Christmas Ltd v Wall (1911) 104 LT 85 and Britoil plc v Hunt Overseas Oil Inc [1994] CLC 561, subject to the qualification that the defendant may contend that the earlier contract itself requires rectification.
2. The Contract remained in force when the Deed was executed. The contractual completion date had passed, but neither party had exercised the contractual right to rescind. The Porters therefore had a prima facie right to a conveyance of the strip. The alternative case that the Contract itself should be rectified failed because it did not establish a common, outwardly manifested intention to exclude the strip. Walter Stokes’ alleged intention alone was insufficient.
3. The Court of Appeal was entitled to revisit the trial judge’s findings. The relevant circumstances included a failure to engage properly with the documents, misunderstanding of Plan A4, and a finding of deliberate deception unsupported by evidence and not pleaded, put in cross-examination or advanced in submissions. In a case tried decades after the events, the trial judge’s advantage in seeing witnesses was correspondingly reduced where the result depended primarily on documents.
4. The Deed was inconsistent with an agreed exclusion of the strip. Plan A4 described two parcels and measured the strip; Part 2 of the Schedule separately identified it; the Deed reserved a right of way over it for the vendor; and it granted the Porters no access right if they did not own it. The omission of the words linking Part 2 to the conveyed lands was therefore properly treated as a drafting slip. A retrial would have been disproportionate after 40 years.

• Privy Council — [2023] UKPC 11: appeal dismissed and the rectification order upheld, for reasons differing slightly from those of the Court of Appeal.
• Court of Appeal of the Republic of Trinidad and Tobago — June 2019: unanimously reversed the decision of Charles J and ordered rectification.
• High Court — Charles J, December 2013: dismissed the Porters’ claim for rectification.