Lloyd's Maritime and Commercial Law Quarterly
RECTIFICATION FOR UNILATERAL MISTAKE: HOW HEAVY IS THE BURDEN OF PROOF?
Wimpey v. VI Construction
The court’s jurisdiction to order rectification of a contract on the basis of a unilateral mistake is an exceptional one, not surprisingly given that the effect is to impose on the defendant a contract which, at the date of its execution, it did not intend to make. In George Wimpey UK Ltd
v. VI Construction Ltd
1
(hereafter “VIC”) the Court of Appeal highlighted the heavy burden on the claimant of proving both that it was mistaken as to the terms of the contract (particularly where the claimant’s negotiator is not the ultimate decision-taker) and that the defendant had the requisite knowledge of the mistake. The decision is likely to have a significant impact on both the way in which many businesses negotiate and enter into contracts and how lawyers conduct litigation.
The case concerned a contract between Wimpey and VIC for the purchase of land for a proposed residential development, under which the consideration payable comprised an initial payment and deferred consideration based on a contractual formula. In the final version of the contract, a key element of this formula, which one of VIC’s negotiators had revised, was omitted. K, Wimpey’s negotiator, failed to notice this omission and Wimpey’s board of directors entered into the contract as it stood. The omission had
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