It is not necessary to plead rectification in order to rectify
Ralph v Ralph  EWHC 3348 (QB)
The claimant and defendant were son and father respectively. Some years ago they jointly bought a property in which the father intended to, and in fact did, live without the son. The father’s evidence was that the son’s name was put on the title register only so that the parties could be jointly named on the mortgage, and that there was never any intention for the son to have any beneficial ownership of the property nor to make any payments towards the mortgage. Many years later the son sued the father seeking a declaration that his ownership of the property was as appeared from the transfer document; namely 50%.
That claim was brought under the Part 8 procedure. It was defended, but the father did not counterclaim for rectification of the transfer document, merely asserting in a witness statement that the property was held on trust for him alone. HHJ Monty QC dismissed the claim notwithstanding the absence of any such counterclaim. Aggrieved, the son appealed to the High Court by permission of Cavanagh J.
Morris J dismissed the appeal. There is no absolute rule that the court will not rectify a document for common mistake in the absence of a pleaded (counter-) claim: , . It is sufficient that the relevant party has raised a vitiating factor for impeaching the validity of the express declaration: . In this case, the father had done so in his witness evidence: . Although it was not possible to rectify the transfer document by variation, it was possible to delete the errant provision and then decide what, in the absence of an express declaration, the beneficial interests were: -, , .
Riccardo Calzavara of Cornerstone Barristers appeared for the successful respondent on appeal, instructed on a pro bono basis.