[2023] UKUT 200 (LC)

In case I am wrong about that, and it is not possible to read the conveyance as a whole in that way, then I take the view that a “corrective interpretation” is legitimate. It is clear from the extrinsic evidence, and in particular the conveyance of Westcott, and the conveyances of 12 June 1918 and of 1933, that insofar as the plan to the 1918 conveyance of Lunsford Farm cut out the application land that was a mistake. And it is perfectly obvious that the only correction possible or needed is to read the plan as if the red edging and pink shading included the application land.

The judge did not think that was possible. At his paragraph 97, referred to above at paragraph 61, he said that there were reasons why Lt Lucas-Shadwell might have wished to retain title to the application land. Mr Dunlop has permission to appeal on the ground that the FTT wrongly speculated about other possible explanations for why the plan excluded the lane.

In the appeal Mr Maynard pointed to the deletion and insertion in the parcels clause in the Lunsford Farm conveyance (paragraph 27 above); the original text described the whole property as “Lunsford Farm”, but the amendment applied that name only to the farmhouse. By contrast the Westcott conveyance refers to the property to be purchased by Thomas Dunlop as “Lunsford Farm” (see paragraph 21 above). So something did change, he said, between the two conveyances. In my judgment that minor drafting amendment goes nowhere near to showing that the parties re-negotiated their contractual obligations. In fact it indicates that they were alive to drafting details and that if they had indeed re-negotiated, and decided to exclude the application land, they would have made an amendment to the conveyance – probably to the schedule of acreages – in order to indicate that.

The difficulty with the judge’s reasoning in his paragraph 97 is that it wholly ignored the fact that Lt Lucas-Shadwell was not free to change his mind. The judge himself found that he had contracted to sell the application land to Mr Harvey, and the 1918 conveyance recites that Mr Harvey had paid in full. The judge found as a fact that Mr Harvey had contracted to sub-sell Lunsford Farm, including the application land, to Thomas Dunlop. The judge’s guesses as to why Lt Lucas-Shadwell might have changed his mind go nowhere near to explaining how he could possibly have done so. Accordingly the judge was wrong to reject the possibility of corrective interpretation and insofar as it is necessary I interpret the 1918 conveyance by correcting the plan to include the application land.