Rectification Revisited: Fresh Guidance On The Role And Types Of Evidence

Cases involving the rectification of pension scheme documents are always of interest. Whilst heard some time ago now (December 2013), the transcript of the High Court's decision in MNOPF Trustees Limited v Bryan Watkins was only recently made available. The decision offers useful guidance as to the Courts' approach in reviewing various forms of evidence used to support an application for rectification.

Claims for rectification

Rectification is an equitable remedy which can only be granted by a Court. To qualify for an award of rectification a party must establish that on the balance of probabilities a legal or factual mistake was made in the drafting of a written scheme document, with the result that the document fails to express the true common intention of the parties.

It is now generally accepted that it is the parties' common intention viewed objectively that must be established. The subjective intentions of the parties themselves are not normally taken into consideration, although interestingly the judge in this case considered that brief consideration of the parties' subjective intentions might serve as a final "cross-check" on the Court's overall decision.

Assuming sufficient evidence can be produced to substantiate the application, there is the further requirement that the mistake for which rectification is sought cannot be easily remedied by alternative means. Where those administering the scheme cannot remedy the mistake by such other means, they are obliged either to apply to Court to seek rectification or alternatively...