Where a mistake has been made in scheme documentation, one of the remedies is to seek rectification from the court. These claims require a high standard of evidence and are often unsuccessful. The judgment in the recent case of Colorcon is a helpful example of the court assisting the employer and trustees where a genuine drafting error had been made. The case involved rectification of a Definitive Deed which allowed revaluation of pensions in deferment at 5% per annum, rather than, as had been the intention of the employer and trustees of the Scheme, at 5% LPI. In granting the order, besides confirming that there are no special restrictions applying to rectification of pension documents, Toulmin J rehearsed the criteria for rectification - "it is necessary to show that the relevant employer and the trustee shared the same intention, down to the execution of the deed in question, and that they held the common intention as to the meaning or effect of the relevant documents."
The judge also made two additional points – firstly, that where as a matter of evidence it is shown that there was a common intention between trustee and employer continuing to the point of execution, no outward expression of that accord is necessary as a matter of law (this had been suggested in previous cases), but also that the behaviour of the parties following the execution of the deed could stand as evidence of the intention itself. This included administration of benefits on the basis of 5% LPI and Scheme Reports and member booklets published and circulated in subsequent years stating that 5% LPI was the correct figure.