## Facts

- The case involved a complex financial agreement relating to the restructuring of loan arrangements between FSHC Group Holdings Limited (FSHC) and GLAS Trust Corporation Limited (GLAS).
- FSHC sought rectification of a deed of release, alleging it mistakenly removed protection over certain assets that both parties had intended to preserve.
- FSHC argued that both it and GLAS shared the intention that the asset protection would remain and that the deed’s failure to reflect this constituted a mutual error.
- The dispute centered on whether there was a truly shared intention not captured in the final written document.

## Issues

1. Whether the requirements for rectification based on mutual mistake were satisfied, particularly in proving a continuing common intention that the written instrument failed to reflect.
2. Whether FSHC had provided sufficiently clear, factual, and certain evidence to establish the existence of a mutual mistake at the time of the agreement.
3. The extent to which the court could rely on evidence of pre-contractual negotiations and the subjective intentions of the parties.

## Decision

- The Court of Appeal found that FSHC had not met the high standard of proof required to establish mutual mistake justifying rectification.
- The evidence presented was insufficiently clear or certain to prove that both parties shared the same specific intention regarding asset protection at the relevant time.
- Much of FSHC’s evidence centered on its own understanding, rather than a proven mutual intention with GLAS.
- The court held that rectification is only available where it is clearly shown that the written instrument fails to record a concluded common intention.

## Legal Principles

- Rectification is available to correct a written document that does not reflect the parties' true agreement due to mutual mistake, but requires strong and certain proof of a continuing common intention.
- The relevant intention for rectification is the objectively ascertainable shared goal of both parties, assessed by the facts and conduct, rather than undisclosed or private beliefs.
- Pre-contractual negotiations may be admissible to establish a shared intention, but their persuasive value depends on clarity and consistency with the final written terms.
- Private views, unclear discussions, or after-the-fact recollections are insufficient; substantial documentary or factual evidence is needed to justify altering an executed contract.

## Conclusion

The Court of Appeal confirmed that rectification for mutual mistake requires compelling evidence of a shared intention not reflected in the contract and that claimants must prove this through clear, factual, and certain evidence rather than private belief or ambiguous negotiation records.


FSHC Group Holdings Ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361