CL-2022-000676 - [2025] EWHC 2486 (Comm)

It is a rare case where rectification succeeds. This is not that case.

For such a plea to succeed, it would be necessary for Medpro first to show at least that it (meaning the person responsible for entering into the contract on its behalf) made a mistake: see FSHC Group Holdings Ltd v Glas [2019] EWCA Civ 1361, [2020] Ch 365 at [105]; Murray Holdings Ltd v Oscatello Investments Ltd[2018] EWHC 162 (Ch) at [198]. This is not a simple matter to prove, even when an appropriate witness is called: see Tartsinis v Navona Management Co[2015] EWHC 57 (Comm) at [85].

As regards the primary construction issue (SAL) Medpro has accepted that it understood the Contract to require product with this SAL. The case as to EN 556-1 and CE marking is neither here nor there for these purposes. Rectification therefore cannot assist Medpro.

But even if the secondary arguments on construction were key, this argument could not succeed. Rectification is all about the parties’ subjective intentions being at odds with the terms of the contract. There is – by Medpro’s own deliberate choice – no evidence on this. Medpro seeks to rely on evidence given by DHSC’s witnesses, but they cannot give evidence as to Medpro’s subjective intentions.