[2025] UKUT 178 (LC)

There are four grounds of appeal from the FTT’s decision on common mistake:

Ground 1 is that where the document sought to be rectified is a TR1 whose drafting was not the subject of negotiation there is no need for an “outward expression of accord” between the parties as required by the test set out in FSHC.

Ground 2 is that, if ground 1 fails, the judge was wrong in her application of the law because she failed to have regard to the possibility of tacit agreement, failed to have regard to the fact that the evidence of professional advisers may be evidence of the intention of the parties, and failed to have regard to the conduct of the parties following the transaction as evidence of their intentions at the time of execution. Ground 3 is that therefore in light of all the evidence there was an outward expression of accord. I take grounds 2 and 3 together below.

Ground 4 is that the FTT took the wrong approach to the absence of witness statements from Mr Saood and from the estate agents.

At the hearing of the appeal the respondent was again represented by Ms Gabriella Sam-Yorke. When Mr Grant KC was part-way through his submissions she asked if she could be permitted to say what she had to say and then leave because she was unwell. I pointed out to her that if she left before Mr Grant KC had finished she would be unable to answer any points he made after she left. The Tribunal took a short break and Ms Sam-Yorke confirmed that she wished to speak and then leave, and Mr Grant KC kindly made no objection to her doing so despite being in the middle of his submissions. Ms Sam-Yorke spoke very briefly; in essence, she said that solicitors should check their work and should not make mistakes. She also said that she and the respondent had inspected the Disputed Land before buying it; but she accepted that she could not give evidence. I discussed briefly with her a further matter to which I refer at paragraph 60 below. She then left the hearing.