[2025] UKUT 178 (LC)

I take the law to be as stated in FSHC; if there are exceptions to the principles set out by the Court of Appeal this is not one of them. Accordingly in order to establish a case for rectification the appellant has to show that the subjective intention of the parties to the TR1 was to transfer 39 Gordon Place and not the Disputed Land, and that they communicated those intentions to each other in what the courts have called an “outward expression of accord”.

In the FTT the judge took the view that there was no evidence of the parties’ intentions, let alone that they had communicated their intentions to each other. Mr Grant KC argued that she was wrong for three reasons.

First, he argued that she was wrong not to regard the evidence given by professional advisers as evidence of the intentions of those who instructed them. In the present context I do not think authority is needed for that proposition; Mr Grant KC cited Misys v Misys Retirement Benefit Trustees Ltd [2012] EWHC 4250 and there have doubtless been many such instances.

I think the judge was troubled by the fact that there was no evidence from the appellant herself. But she was not present at the time of the transaction, Mr Saood acted on her behalf., and it has never been disputed that he acted for her and was the one who agreed the sale and instructed the solicitor. Since she was out of the jurisdiction at the time of the transaction and at the time of the hearing there was no particular purpose in her giving evidence. I shall comment later on the exclusion of Mr Saood’s evidence.

Part of the everyday reality of domestic conveyancing is that the parties rarely communicate with each other directly but do so through estate agents and solicitors. In my judgment, in that context there could hardly be better evidence of the parties’ intentions to buy and sell 39 Gordon Place, only, than the estate agents’ particulars (composed on the appellant’s instructions) or the memorandum of sale (reflecting the subject to contract agreement between the parties, communicated to each other through the estate agent)?

The particulars of sale do not include the Disputed Land. There is no possible construction of them that could lead anyone to suppose that the Disputed Land was included in what was offered for sale. This is a newly-built, but otherwise perfectly ordinary, three-bedroomed detached house in Reading. Property owners rarely know anything about the legal title to their property and there is no reason to suppose that the appellant, or Mr Saood, or the respondent knew anything about the title numbers for 39 Gordon Place. There is no reason to suppose that any of them knew that it was comprised of more than one registered title or that the Disputed Land was part of the same title as was part of 39 Gordon Place. What they actually intended – to buy and sell 39 Gordon Place, only – was perfectly clear from the estate agent’s particulars, from the memorandum of sale, and from the appellant’s solicitor’s evidence.

As to the solicitor’s evidence, it was as I understand it not challenged by the respondent, in that Ms Sam-Yorke did not cross examine him. His evidence was that he made a mistake about the title to 39 Gordon Place. It was a mistake because his client did not instruct him to sell the Disputed Land. Moreover all the correspondence he exhibited to his statement refers only to 39 Gordon Place. Mr Grant KC argued that the judge erred in disregarding the appellant’s solicitor’s evidence given at the hearing (to which she referred at her paragraph 23) that had the Disputed Land been included in the sale, the correspondence would have referred to it and so would the contract. I agree, and the point is in any event obvious as a matter of ordinary conveyancing practice.

This was not a hasty conveyancing transaction done by unqualified assistants. It was conducted with care by solicitors who – as can be seen from their correspondence – did the work themselves and did it carefully, going into detail about the work required on the property, adjacent land, an easement required from the local authority and so on. If one had been instructed to sell, or the other to buy, the Disputed Land it would have been the subject of express correspondence. As to the actual references to title numbers, the judge was simply wrong to say that the correspondence all referred to the whole of BK402889. One letter mentions a sale of the whole of the title number. That is all.

Mr Grant KC’s second argument was that this was a case of tacit agreement; it went without saying that the Disputed Land was not included; and I agree that in a number of cases the courts have acknowledged that agreement may be tacit and that a point can be one that goes without saying. I would not characterise the parties’ agreement here in that way. It is not that the exclusion of the Disputed Land was tacitly agreed. It was that the exclusion of the Disputed Land was irrelevant to their agreement because there was never any suggestion that it might be included. People do not agree to buy and sell houses by reference to their title numbers. They do so by reference to the property itself; and here, that was 39 Gordon Place, throughout.

Third, Mr Grant KC said that the judge failed to have regard to the parties’ conduct after the transaction. Obviously evidence of later events is relevant only insofar as it sheds light o the intentions of the parties at the time of the transaction, and therefore reference to later events has to be regarded with care. But Mr Saood’s evidence that the Disputed Land remained in his possession and in frequent use after the sale of 39 Gordon Place is obviously relevant evidence of the fact that it never occurred to him that it had been sold. The appellant’s solicitor said as much in his witness statement (paragraph 20 above), but rather briefly and no doubt the judge having decided that his evidence was not evidence of his client’s intention felt that what he said about the later use of the land was not very helpful. But Mr Saood was the one who had the key to the gates and was using the land, and his evidence was relevant and important. It was not before the judge because it had been excluded by the FTT on 4 October 2024 and was excluded again by the judge in the belief that it was irrelevant. I deal with that point under ground 4.

As to grounds 2 and 3 I agree that the judge in deciding that there was no evidence of the intentions of the parties to the TR1 and no outward expression of accord fell into error and wrongly disregarded the ample evidence of those intentions and that accord. Her decision is set aside.