BL-2023-MAN-000072 - [2025] EWHC 2442 (Ch)

The first matter to consider is the question of JAK’s pleading objections. As I have indicated, the key objections are the lack of detail and particularity in support of the averment that the parties evinced an intention that clause 13 of the Deed of Postponement should have the meaning and effect contended for by Together, the absence of a plea in respect of the required “outward expression of accord”, and the failure to plead the wording which it is alleged that a duly rectified clause 13 should contain.

There is force in these pleading objections, but I do not consider that the force of the objections is sufficient to necessitate that the claim for rectification be dismissed on pleading points.

So far as particularity as to how the requisite common intention was evinced, paragraph 23(d) of the Counterclaim does identify the Development Services Agreement, the other provisions of the Deed of Postponement and discussions between the parties. The lack of particularity in relation to the latter is unfortunate, but the case was further developed in Mr Demachkie’s Skeleton Argument, and I was addressed in some considerable detail by both parties at trial in relation to the significance to be attached to various items of correspondence passing between the parties (via Beyond Corporate and Mulbury). In the circumstances, I do not consider that the lack of particularity has prevented the Court from fairly considering the point.

As to the failure to plead “outward expression of accord”, the issue was, again, covered in Mr Demachkie’s Skeleton Argument - see in particular paragraphs 30 and 34(2) thereof. Again, I consider that it was possible to fairly consider the relevant issues at trial, and difficult to see that JAK has, at the end of the day, been prejudiced by any pleading deficiency.

So far as the wording of a rectified clause 13 is concerned, again the position has been covered by the wording referred to in paragraph 63 above, taken from paragraph 38 of Mr Demachkie’s Skeleton Argument.

Against the above background, I consider the various matters required to be satisfied in order for Together to establish a case in rectification.