Having had their claim for rectification dismissed at trial (Lohia v Lohia  EWHC 2752 (Ch)), the claimants sought and obtained permission to appeal on grounds including that the trial judge had wrongly applied the test for rectification of commercial contracts (See FSHC  EWCA Civ 1361) to this case, which concerned the voluntary transfer (for no consideration) of property between family members. In dismissing all grounds of appeal, HHJ Jarman QC (sitting as a High Court Judge) cited Ralph v Ralph  EWCA Civ 1106 and situations in which the test in FSHC might not apply (see §§27-30 per Sir Geoffrey Vos MR).
The appellant submitted that the trial judge had failed to consider whether there were any special features to the case, which made an adjustment to the FSHC “commercial” approach apposite. In particular, it was submitted that this case was different insofar as the property in question was subject to statutory trusts as a result of the death of the parties’ father c. 30 years prior and resulting intestacy. The ground was dismissed on the basis that the trial judge had properly satisfied himself that the parties did not satisfy the requirement for a common intention between the parties to the transfer that the (late) defendant should relinquish his share, as alleged. Further, the trial judge had not been able to place confidence in the evidence of the transferor, even if it was only the transferor’s intention that mattered.
The possibility of successfully arguing that there ought to be adaptations to the FSHC “commercial” test in domestic property transfers remains available in an appropriate case. The above appeal is the first (known) attempt at such argument.
A copy of the judgment can be found here.
George Woodhead acted for the successful defendant/respondent at trial and on appeal, instructed by Timothy McLeish at Vanderpump & Sykes.