Objective test applies if a prior concluded contract exists, but subjective test applies if there is a continuing common intention.
In the recent case of FSHC Group Holdings Limited v. GLAS Trust Corporation Ltd  EWCA Civ 1361, the English Court of Appeal held that for rectification to be granted on the basis of common mistake, a claimant must establish that either:
- the disputed document does not give effect to a prior concluded contract (objectively determined); or
- at the time the disputed document was executed, there existed a common intention between the parties in relation to a particular matter (subjectively determined) which, by mistake, was not recorded in the final document as executed.
Rectification is a discretionary remedy that is available to the court in circumstances in which a written contract does not reflect the terms as agreed between the parties, i.e., “where there has been a mistake, not in the making, but in the recording, of a contract”[i]. Continue Reading