Two recent cases have highlighted when the court will allow rectification of a contract following mistake. In Surgicraft Ltd v Paradigm Biodevices the court held that rectification would be allowed where evidence could establish the common intention of the parties and that the failure of the contract to reflect the position was due to a common mistake. This is the case even where an entire agreement clause exists in the relevant contract. As set out in Chartbrook v Persimmon [2009]UKHL 38, it will be necessary to show: a common continuing intention whether or not amounting to an agreement; an outward expression of accord; that the common intention continued at the time of execution; and that by mistake the instrument did not reflect this common intention.

In Traditional Structures Ltd v H W Construction, the court allowed rectification for unilateral mistake and a fair price for the work carried out where the last line of a sub-contractor's faxed quotation had been inadvertently cut off, providing a price marked "steelwork" but omitting the price for cladding. The main contractor argued the quoted price should cover all the works for which it had requested a quotation. However, it was held to have failed wilfully and recklessly to enquire whether the price covered both works, which an honest and reasonable man would have done. The sub-contractor successfully argued that a fixed price had been agreed for the steelwork and it was entitled to a fair price for the cladding under s.15 of the Supply of Goods and Services Act 1982, as agreement had been reached in all aspects of the cladding work, save the price, in sufficient detail to conclude a contract.

Sources: Surgicraft Ltd v Paradigm Biodevices [2010] EWHC 1291, High Court, Chancery Division, Christopher Pymont QC, 26 May 2010

Traditional Structures Ltd v H W Construction [2010] EWHC 1530, High Court, TCC, Judge David Grant, 26 May 2010