Siama Khurshid v Philomena Sam-Yorke

Rectification for common mistake requires proof of the parties’ subjective intentions and an outward expression of accord between them. Communication through estate agents, solicitors and other professional advisers may establish that accord. Sales particulars, memoranda of sale, conveyancing correspondence and subsequent conduct may all be relevant, although later conduct must be considered cautiously. A tribunal acts irrationally if it excludes material evidence because the opposing party defaulted, and then relies on the absence of that evidence to refuse relief. Where the evidence clearly establishes the intended transaction and rectification causes no prejudice, the Upper Tribunal may set aside the first-instance decision and substitute an order for rectification.

The appellant’s conveyancer mistakenly transferred the whole of registered title BK402889 when the parties intended to transfer only 39 Gordon Place. The additional Disputed Land was remote from the house and had not been identified in the sales particulars, contract or conveyancing correspondence.

The First-tier Tribunal refused rectification for common mistake. It excluded a witness statement from the appellant’s agent, gave little or no weight to an estate agent’s email, and concluded that there was no convincing evidence of the parties’ common intention. The appellant appealed on grounds concerning the need for an outward expression of accord, the evaluation of evidence, and the exclusion of material evidence.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the Upper Tribunal substituted an order rectifying the TR1.
2. The applicable principles were those stated in FSHC Group Holdings Ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361. The appellant had to prove that both parties subjectively intended to transfer 39 Gordon Place but not the Disputed Land, and that those intentions were communicated by an outward expression of accord.
3. The Tribunal rejected the proposed development of the qualification suggested in Ralph v Ralph [2021] EWCA Civ 1106. That case concerned a materially different family transaction and did not justify treating the outward-expression requirement as inapplicable to this negotiated vendor-and-purchaser transaction.
4. In ordinary domestic conveyancing, parties commonly communicate through estate agents and solicitors. The sales particulars, memorandum of sale, solicitor’s evidence and conveyancing correspondence provided ample evidence that the transaction concerned 39 Gordon Place only. The references to title numbers did not establish an intention to transfer the whole of BK402889. The appellant’s agent’s continued possession and use of the Disputed Land after completion was also relevant evidence, though subsequent conduct had to be treated with care.
5. The First-tier Tribunal acted irrationally and disregarded relevant considerations by excluding the agent’s witness statement because the respondent could not answer it after her own procedural default. It was also irrational to dismiss the estate agent’s email entirely. The email deserved less weight than a tested witness statement, but was consistent with the contemporaneous documents.
6. Rectification remained discretionary and equitable. The respondent had not paid for or used the Disputed Land and would suffer no prejudice. The TR1 was therefore ordered to be rectified by including a plan and wording making clear that only part of BK402889 was transferred. No order was made concerning the separately discovered sliver of land in title BK432176.

• First-tier Tribunal (Property Chamber): refused the appellant’s application for rectification of the TR1 on the basis of common mistake. The decision citation was not stated in the judgment.
• Upper Tribunal (Lands Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and substituted an order rectifying the transfer.