Sargeant and Others v Reece

EDWARD BARTLEY JONES QC APPROVED   JUDGMENT INTRODUCTION: 1.         The issue before the court  is whether an agreement in writing dated 21st September 1995 (“the 1995 Agreement”) entered into between Joseph Sargeant (“Joseph”) and Hilda Joyce Reece (“Hilda”) should be rectified.   The rectification claim relates to 45.535 acres of agricultural land situated in Milton, Northamptonshire which is now known to the parties as “the Crem Land”.  It was not always so known by this name and that fact forms one of the many reasons why problems have arisen. 2.         In essence, Joseph (or more correctly now his estate) says that by virtue of the 1995 Agreement he acquired the whole Hilda’s beneficial interest in the Crem Land.  It is common ground that this was, indeed, the legal effect of clause 6 of the 1995 Agreement.   But Hilda says that the 1995 Agreement did not reflect the true “common intention” of herself and Joseph and that, accordingly, the 1995 Agreement should be rectified so as to ensure that she has at all times retained, and now retains, her interest in the Crem Land, as tenant in common in equity with Joseph (and now his estate) in equal shares.  3.         The bulk of the Crem Land undoubtedly has development potential.   Sometime in the future it is likely to be sold for very substantial amounts of money. 4.         Joseph and Hilda were brother and sister.   Sadly, Joseph died during the course of this action (on 10th May 2005 at the age of 82).   A grant of probate was made to his executors on 30th March 2006.   Those executors are his widow (Audrey Mary Sargeant), his daughter (Jane Louise Skinner (“Mrs Skinner”)) and his solicitor, Mr Michael Arthur Thomson.  They have been joined as parties to this action, in Joseph’s place.   However, and as nothing turns on what the executors have, subsequently, done, for ease of exposition I shall use the word “Joseph” to refer to both Joseph and his estate. 5.         Joseph was a farmer throughout his life.   Whilst Hilda has never engaged in active farming nevertheless she was closely associated therewith.  It is helpful to point out at this stage (because it makes it easier to understand events which might in a purely urban commercial context seem highly surprising) that Joseph and Hilda showed many traits which are often said to be found in farming communities.   Both appear to have been secretive about their affairs, for no good purpose whatsoever.   Thus, as I shall explain below, part of the problems arose because certain professionals acting for Joseph and Hilda at the time of the 1995 Agreement were unaware of the negotiations which Joseph and Hilda were conducting (through other solicitors) to grant an option to developers over the Crem Land.   Both were self-willed, indeed obstinate.   Hilda’s son, Mr Charles Reece, gave evidence before me.   I found him to be a most impressive witness and he describes Joseph as a man who always had an “air of infallibility” about him (deriving Mr Reece said, in his belief, from the fact that Joseph had survived the war having been a Lancaster bomber pilot).   Conversely, Mr Reece described his mother, Hilda, as being strong willed, taking his advice only when she wanted to and not necessarily following it.   As will be seen below, after the 1995  Agreement issues arose as between Joseph and Hilda (particularly, but not exclusively, over the Crem Land) which would have fractured any ordinary commercial relationship.   And yet whilst the professionals were writing letters to one and other, getting into an increasingly complex series of discussions and negotiations, Joseph, according to Mr Reece’s evidence, would visit Hilda almost daily for a cup of tea in the afternoon after he had finished farming.   There are clear indications, here, that the professionals were conducting Joseph and Hilda’s affairs in a separate, and parallel, universe from the one in which Joseph and Hilda were conducting their own relationships.   These factors need to be taken into account when judging, subsequently, the true effect of what occurred (particularly after the 1995 Agreement).   6.         The initial omens for a rectification claim are not propitious.   This action was commenced by Joseph on the 8th November 2004.   And, yet, the rectification claim was not mounted until the defence was amended after the death of Joseph.  Thus, the rectification claim was not made until some 11 years after the 1995 Agreement, and in circumstances where Joseph has not had the opportunity to provide evidence in response thereto.   Further, Hilda is now, unfortunately, old and infirm.   Whilst she has provided a witness statement, it is self evident that this does not reflect the “ipsissima verba” of her recollection but, rather, has been prepared for her by her lawyers.   Further, Hilda was unable to attend for cross-examination.   I found the oral evidence of one of the witnesses called on Hilda’s behalf in support of the rectification claim (the accountant Mr Smith) to be utterly valueless (either for or against rectification).   I found it extremely difficult to assess the true meaning, and effect, of the evidence given by another major witness called on Hilda’s behalf (Mr Arnold – the solicitor).  Nevertheless, despite these difficulties, Mr Tidmarsh Q.C. on behalf of Hilda advances a cogent case as to why the 1995 Agreement should be rectified.  7.        That something went badly wrong with the 1995 Agreement so far as it affected the Crem Land is undoubted.   But, of course, that of itself is not sufficient for the equitable remedy of rectification to be granted.   What is necessary is that there should have been in existence, at the time when the 1995 Agreement was entered into, a “common intention” as between Hilda and Joseph in the form now claimed by Hilda.   Further, the right to rectification should not have been lost, subsequently, through, for example, laches, waiver or acquiescence. THE FAMILY/THE LAND: 8.         Joseph and Hilda were the children of Henry Charles Sargeant (“the Father”).   There was a third child, their brother Charles Henry Sargeant (“Charles”).    Charles was tragically killed in the Paris air disaster on 3rd March 1974.   9.         It is important in this case to identify with clarity the family’s landholdings, because the professionals, in their correspondence, are sometimes unclear in describing precisely what land they are talking about.   The Father owned three freehold farms:- (1)        Grafton Lodge Farm, Grafton Regis.  This comprised of 514 odd acres and included a dwellinghouse (Grafton Lodge) in part of which Hilda lived at the time of the 1995 Agreement.   This farm (“Grafton Lodge Farm”) lay some 8 miles south of Stockwell Farm and Maple Farm; (2)        Stockwell Farm (41 odd acres) and Maple Farm (137 odd acres).   Both these farms were in Milton Malsor, a village on the outskirts of Northampton.  Just to the north and north-east of this village runs the M1 motorway (as it passes to the south of Northampton).  Part of Maple Farm was situated on the Northampton side of the motorway.  The town of Northampton was, undoubtedly, encroaching southwards towards the motorway.  A part of Maple Farm lying to the north of the motorway undoubtedly had in-fill development potential.    I shall refer to the fields originally owned by the Father as part of Maple Farm and lying on the Northampton side of the motorway as “the red land”.   10.       The Father conducted a partnership business, of farmers and butchers, with Joseph and Charles  under the name of “H. C. Sargeant & Sons”.   It would seem that the Father had granted an agricultural tenancy or tenancies of Grafton Lodge Farm, Stockwell Farm and Maple Farm (including the red land) to that partnership.   11.       The Crem Land was slightly different.   It was purchased, freehold, by the Father, Joseph and Charles by Conveyance dated the 14th August 1959.  An express trust in that Conveyance provided that the Crem Land was to be held by each of them on trust for sale upon the trusts applicable thereto as part of their partnership.   The Crem Land was purchased from the trustee in bankruptcy of a Mr Penn and, hence, was on occasions referred to as “Penn’s Land”.  Other appellations, from time to time, include “Land at Milton” (in the accounts), “45 acres at Collingtree”, and “fields off Rowntree Road”.   The appellation “the Crem Land” appears to have arisen only after the date of the 1995 Agreement.  This less than euphonious name is derived from the proximity of the land to the municipal crematorium. 12.       The Crem Land is roughly “T” shaped.  The head of the “T” adjoins, broadly, the north western boundary of the red land.   The leg of the “T” extends towards the motorway, and the crematorium, crossing the Northampton to London railway line as it does so.   Field 173 (5.4 acres or thereabouts) lies to the west of the railway line and may not have ideal development potential.   But the remainder of the Crem Land when taken with the red land forms (at the risk of inaccuracy through the generality of the description) part of a square area of land bounded to the west by the railway line, to the south by the motorway, to the east by other agricultural land and, with a few fields or a golf course intervening, to the north the ever encroaching town of Northampton.  13.      Whilst there was some minor development potential in other parts of Stockwell and Maple Farms (in particular parts of Stockwell Farm lying in the village of Milton Malsor) it was the Crem Land and the red land, taken together, which had the most substantial long-term development potential.   14.       Because the Crem Land was purchased in the manner I have identified, no tenancy thereof was granted, or needed to be granted, to the partnership.   15.       The Father was clearly, for his time, a forward thinking man so far as daughters of a farming family were concerned because, when he came to retire, a new farming partnership was entered into, under the name “H. C. Sargeant & Sons”, which comprised not merely Joseph and Charles but, also, Hilda.   A deed of partnership was produced in 1961 for the three children under which all three children shared capital, and profits, equally.   The Father then granted tenancies to the new partnership (in which he was not a partner) of Grafton Lodge Farm, Stockwell Farm and Maple Farm.   16.       As to the Crem Land again no tenancy was granted.  It seems to have been assumed, at the time, that the trusts as declared by the 1959 Conveyance would apply to the new partnership.   I am not entirely clear as to how that could have occurred, granted the fact that the trusts declared by the 1959 Conveyance were in favour of the old partnership (between the Father, Joseph and Charles).  But everyone, since 1961, has proceeded upon the basis that as the result of creation of the new partnership the trusts declared by the 1959 Conveyance were in favour of the new partnership and the case was presented to me on that basis.   On the 19th July 1968 by deed made between (1) the Father (as retiring trustee) (2) Joseph and Charles (as continuing trustees) and (3) Hilda, Hilda was appointed to be a trustee of the 1959 Conveyance in place of the Father, and jointly with Joseph and Charles.   Thereby the legal estate in the Crem Land was vested jointly in Joseph, Charles and Hilda.   Following the death of Charles in 1974, the legal estate in the Crem Land remained vested in Joseph and Hilda (until Joseph’s death).   Now, at law, the Crem Land is vested in Hilda alone.   17.       The 1961 partnership deed provided that, on the death or retirement of any partner, an option would be given to the surviving partners to acquire the deceased or retiring partner’s interest in the partnership.   That option was exercised by Joseph and Hilda on the death of Charles.  Joseph and Hilda paid for Charles’ share under and in accordance with the provisions of clause 15(ii) of the 1961 deed.  That required an up to date valuation of the land as at the date of “dissolution”. Clause 15(ii) is of some background relevance in that it continued to govern the relationship between Joseph and Hilda at the time of the 1995 Agreement.   Had Hilda insisted on her rights under clause 15(ii) she could have received substantially more for the Crem Land than she actually did (by demanding an up to date valuation of the Crem Land).   18.       The Crem Land appears to have been the major asset of the partnership.   A probate valuation was obtained as at the 4th March 1974 (the date of Charles’ death) in the total sum of £21,375 (£475 per acre).   This was, clearly, a purely agricultural value.    On the basis of this valuation, Hilda and Joseph paid out Charles’ interest in the partnership to his estate and, thereafter, continued the partnership together on the terms of the 1961 deed.   At all times up to, and including, the date of the 1995 Agreement the partnership accounts carried this 1974 probate valuation as the valuation for the Crem Land.   The Crem Land was never re-valued.   19.       Father died on the 12th May 1969.   His last will dated 21st October 1966 appointed Joseph, Charles and Hilda to his executors and trustees.   All three obtained a grant of probate on 15th May 1971 and, following the death of Charles, Joseph and Hilda remained as the surviving executors and trustees.   20.       The Father’s forward thinking approach was reflected also in the terms of his last will.   In essence, after certain specific bequests and legacies, he left his estate to his widow for life and, thereafter, to Joseph, Charles and Hilda in equal shares.  There is some suggestion before me that the Father’s failure to prefer his two sons, or to specifically devise a particular farm to one or other of them, was a cause of some resentment from Joseph and Charles  against Hilda. 21.       At all material times Joseph and Hilda continued to hold Stockwell Farm and Maple Farm (including the red land) in their capacity as trustees of the trusts as declared by the Father’s will.   These farms were, of course, subject to the tenancies granted in favour of the farming partnership as carried on between Joseph and Hilda.   By a process which is only briefly referred to in the evidence before me, but the result of which appears to be common ground, Grafton Lodge Farm became vested in Joseph and Hilda personally (by way of appropriation as against Charles (or his estate) of Joseph and Hilda’s interests as beneficiaries under the Father’s will).    22.       To summarise, therefore, the position prior to entry into the 1995 Agreement was as follows:- (1)        Joseph and Hilda together personally owned Grafton Lodge Farm.   Hilda was living in part of Grafton Lodge.  The farming partnership between Joseph and Hilda was farming Grafton Lodge Farm (whether or not it was doing so under a continuing tenancy does not matter for present purposes); (2)        Joseph and Hilda held the legal title, as trustees of the trusts declared by the will of the Father, in respect of Stockwell Farm and Maple Farm (including the red land).   The partnership between Joseph and Hilda was in occupation of these Farms under the tenancies originally granted by the Father; (3)        the Crem Land was held by Joseph and Hilda on trust for their partnership; (4)        that partnership was governed by the terms of the 1961 deed. THE 1995 AGREEMENT: 23.       The basic idea behind the 1995 Agreement was relatively simple.  The farming partnership between Joseph and Hilda had been running at a loss for a number of years (aggravated by the fact that Joseph, but not Hilda, was drawing a modest salary therefrom).   The effect of the losses, and various other factors, was to decrease the value of Hilda’s capital account to the point where it was in major deficit.   Hilda was deriving no benefit from the farming partnership and wanted it to end.   Also, Hilda wished to leave Grafton Lodge and to purchase a cottage (Wheelbarrow Cottage, Grafton Regis) for which she required some £140,000 in capital.   But Hilda’s capital was all tied up in the land.   The basic idea was, therefore, that Grafton Lodge Farm should be appropriated as to part to Joseph and as to another part to Hilda, with Joseph paying equality money.   That part taken by Hilda would be made subject to a tenancy in favour of Joseph so that he could continue farming it.   The tenancies of Stockwell Farm and Maple Farm would be taken over by Joseph personally and the farming partnership would be brought to an end.  There were various technicalities, in terms of timing and the like, to ensure that the farming partnership was brought to an end, and the apportionment of Grafton Lodge Farm effected, in a way which preserved everyone’s rights to relief against taxation. 24.       The 1995 Agreement, as executed, provided in clause 1 that Hilda should be deemed to have retired from the partnership on the 31st March 1995 but should remain as a non-equity partner until 30th September 1995.   25.       Clause 2 of the 1995 Agreement is important and I set out its terms in full:             “2. Mr David J Smith of [address] is hereby instructed to draw closing accounts of the partnership as at 30th September 1995 to reflect all profits and losses in the final year of trading and a closing Balance Sheet upon the following bases:   2.1       That the value of the property at Grafton Regis including all capital improvements is excluded 2.2       That the capital account of both parties shall reflect any accumulated losses of the business and all loans made by any person excluding the partners to the partnership. 2.3       That the tenancies of other properties at Milton Malsor and Collingtree shall be transferred without payment to Mr Sargeant (save that he will account to Mrs Reece for fifty per centum of any capital payments that may be made to him in the future in respect of compensation for yielding up possession due to any development of any of such properties).” 26.       As to clause 2.3 it is quite clear that it did not relate to the Crem Land (but, rather, related to Stockwell Farm and Maple Farm (including the red land)) because the partnership had never been a tenant of the Crem Land. 27.       Clause 3 provided that Grafton Lodge Farm should be partitioned so that Joseph took a defined 224 odd acres and Hilda took a defined 290 odd acres.   Joseph’s acres were more valuable and so he was to pay Hilda £55,650 on or before 30th September 1995, less any deficit on her capital account in the partnership. 28.       Clause 4 provided for certain options, and rights of pre-emption, in favour of Joseph to acquire parts of Grafton Lodge Farm which Hilda was taking.   29.       Clause 5 provided for a limited right for Hilda to remain in occupation of Grafton Lodge, rent free and as licencee.   Clause 7 provided that Joseph should be solely responsible for all liabilities arising by reason of the operation of the business as carried on at Grafton Lodge Farm as from the 1st April 1995 but should be entitled to receive all profits arising therefrom from that date.  It is not entirely clear why the reference in clause 7 is to the business only as carried on at Grafton Lodge Farm rather than to the business as carried on by the partnership.  30.       Clause 6 was in the following terms:-             “Mrs Reece shall join in and sign any document that may be required to vest all partnership assets in Mr Sargeant”. 31.       It is clause 6 which has caused all the difficulties.   As at the date of the 1995 Agreement the Crem Land was, indeed, a partnership asset.   Prima facie, therefore, Joseph acquired the same under the terms of the 1995 Agreement.  But the 1995 Agreement contains no provision, whatsoever, to have the Crem Land re-valued.   The Crem Land was being carried in the partnership accounts at its 1974 probate valuation (£475 per acre).   A valuation prepared, for different purposes, by Mr Cowling on 15th December 1992 of Stockwell Farm and Maple Farm would suggest that the agricultural value of the Crem Land as at September 1995 was, at the very least, £3,000 per acre.    32.       It was, of course, Hilda’s entitlement under clause 15(ii) of the partnership deed to have the Crem Land re-valued.  It would appear that the disparity in the agricultural value of the Crem Land between 1974 and 1995 was, at the bare minimum, at least £2,000 per acre, probably more.   This would have meant that, by not having the land re-valued on transferring her interest therein as a partner to Joseph, Hilda was short-changing herself by at  least £45,000 (probably much more).   This would have been a matter of some considerable moment to Hilda.    Her capital account in the partnership was showing a substantial deficit.  Granted the way the figures ultimately worked out, after the 1995 Agreement came into effect, she did not receive enough money to purchase Wheelbarrow Cottage.     She would have received enough had the Crem Land been re-valued to its 1995 agricultural value.  But, as I shall explain below, and even more importantly, each of Joseph and Hilda knew that the Crem Land had a potential development value far in excess of its agricultural value.   33.       It is, I think, fair to say that the 1995 Agreement is not, generally, a happy, or indeed particularly competent, piece of drafting.  Even on the face of what is addressed, it contains errors and unnecessary lack of clarity. THE WITNESSES: 34.       I must, shortly, turn to analyse the basic background facts in greater detail but as that analysis will depend, to a degree, on the view which I have formed of the witnesses it will be easiest if I express those views, in general terms, at this stage.  35.       I can deal with Mr Charles Reece and Mr Andrew Cowling (the valuer) together.   Both were highly impressive witnesses (careful, balanced and, self evidently, telling the truth as they now recollect it to be).   Although no one’s recollection, 10 years after the event, can be perfect, it seemed to me that both had good recollections.  Where, below, I specifically accept certain parts of their evidence I have had not the slightest hesitation in so doing.   36.       Mr Smith’s oral evidence was, in my judgment, utterly valueless.  What, clearly, had gone wrong was that Mr Smith had no real recollection whatsoever of any material facts.  Further, it became instantly clear from his answers that he had not chosen to re-familiarise himself with the correspondence which had been written at the time or the basic background structure and facts of the dispute.   This led to him misanalysing certain vital pieces of correspondence (misidentifying the particular pieces of land being discussed, from time to time, in that correspondence).   Working from that misidentification and misanalysis he then proceeded to conclusions which were logical absurdities and, indeed, he began to give wholly inconsistent answers.   Although called on behalf of Hilda,  the net effect of his evidence, as it became more and more unreal, was such that Mr Tidmarsh asked for leave to cross-examine Mr Smith as a “hostile witness”.    There was some investigation of the principles applicable to such an application in civil proceedings but, ultimately, Mr Tidmarsh (recognising, most sensibly, that nothing that Mr Smith had said was going to have any effect whatsoever on the ultimate outcome of this matter) decided to abandon that application (on the basis that it was probably more trouble than it was worth).  It seems to me that there are only two ways of characterising Mr Smith’s evidence.   Either he did not care about the accuracy of the answers he was giving or, alternatively, he was simply totally confused (because he had not prepared himself to give evidence).  I am of the view that the former analysis is incorrect and that, indeed, Mr Smith was thoroughly confused through lack of preparation and anterior thought.   But that finding does not entirely absolve him of criticism.   As a professional, particularly as one of the professionals who seem to have assisted Joseph and Hilda in getting themselves into the position in which they now find themselves, Mr Smith ought, really, to have thought more about matters before he entered the witness box.  He might not then have embarrassed himself, as he did, by giving such patently inaccurate, indeed on occasions absurd, interpretations of what some of the correspondence was about.   37.       I found, and still find, the evidence of Mr Arnold difficult to interpret and evaluate.   Mr Arnold was the solicitor who drafted the 1995 Agreement.  Now retired, in the witness box he appeared to be a country solicitor of the old school, forthright, competent and proper.   He acknowledged that he had made a mistake in the 1995 Agreement and said that it was now his clear recollection, which he had always held, that the Crem Land was not intended to pass to Joseph at all, let alone at 1974 probate valuation.   But the difficulty with this evidence is that, after the problems over the Crem Land became clear in 1996, Mr Arnold wrote not a single letter which is consistent with this recollection.  Never did he write a letter saying that in the 1995 Agreement he had made a bad mistake.   Never did he write a letter to Hilda suggesting that she might care to consider her position as against him.   This is what a competent, proper and forthright solicitor would have done when the problem arose.   So either Mr Arnold is not what he presents himself as, or he did not, at the material time, hold the recollection he now says he had at all times held.     I think that the correct analysis, having listened most carefully to Mr Arnold giving his evidence, is that Mr Arnold was mistaken.   The reason why he did not do what he might have been expected to do when the problems over the Crem Land arose is, simply, because at that time he did not realise that he had made the mistake which he now attributes to himself.   He has honestly persuaded himself that he has at all times held a continuing recollection which he did not, in fact, hold.   Granted this, therefore, his recollection as a whole must be suspect.   38.       Hilda is, now, in residential care and too infirm to attend for cross-examination.   Indeed, there is reference before me in a memorandum of a meeting of 23rd December 2003 to Mr Charles Reece having, at that stage,  indicated that Hilda was already becoming “confused and forgetful” because of her medication.  I cannot, in these circumstances, put any reliance whatsoever on her witness statement which was made on the 17th April 2007.   39.       I must also, in assessing the evidence and in making my findings of fact, exercise extreme caution (in favour of Joseph’s estate) because Joseph has never had the opportunity of addressing the rectification claim.   The only evidence on behalf of the estate came from Joseph’s solicitor, and executor, Mr Michael Arthur Thomson.   Mr Thomson was not cross-examined. Mr Thomson says that throughout his discussions with Joseph from May 1997 until Joseph’s death, Joseph was of the clear view that the Crem Land had been acquired by him under the 1995 Agreement and that he had paid Hilda for it.   That evidence I, of course, unreservedly accept.  But Joseph’s position vis-à-vis Mr Thomson may not have reflected, fully, what Joseph himself knew or suspected.   Nor is holding that view consistent, on Joseph’s part, with his entry into the Deed of 23rd February 2000 (see below).  I think that Joseph appreciated, at the very least, that there were issues over the Crem Land and that he could not be certain that he was the sole beneficial owner thereof.   I do not see Joseph as the sort of man who would make a voluntary gift of a most substantial amount of money to Hilda.   And yet, if he believed that he was, in truth, the owner of the Crem Land that is what he did by the Deed 23rd February 2000.   Whatever public attitude Joseph adopted to Mr Thomson, his private thoughts are likely to have been very different.   40.      One witness from whom I did not hear, although I was told that she was in court throughout, was Joseph’s daughter, Mrs Skinner (one of his executors).   She had been present at a vital meeting of 9th May 1995.   Mr Tidmarsh urges on me that she could have given evidence as to what occurred at that meeting and that I should draw the appropriate inferences from the fact that she has chosen not to give evidence.   Without specifically referring thereto, Mr Tidmarsh was relying upon cases such as Wisniewski –v- Central Manchester Health Authority [1998] P.I.Q.R.324.  It seems to me that this particular submission has to be treated with great care.  I can understand how I could make an inference that because Mrs Skinner has chosen not to give evidence, and yet was present at the meeting of 9th May 1995, she has no valuable evidence to give (in the sense that she has no recollection, now, of what occurred at that meeting).   That, however, does not really advance matters.   To go further as Mr Tidmarsh seems to wish me to do and to infer that Mrs Skinner has a positive recollection of that meeting which is in accord with Hilda’s case (or not in accord with the present position of Joseph’s estate), is far more serious and, to my mind, unjustifiable.   It involves the proposition that Mrs Skinner is, deliberately, withholding information from the court and allowing the estate’s case to proceed upon a premise which she knows to be false.   Granted the fact that Mrs Skinner’s silence is entirely consistent with her having no useful recollection whatsoever of the meeting, there is no evidential basis for such a serious inference as this (which would involve a major attack on Mrs Skinner’s integrity).   I, therefore, attach no significance whatsoever to the fact that Mrs Skinner has not given evidence.  THE LAW: 41.       The law on rectification was common ground before me.   Rectification is an equitable discretionary remedy.   The court does not rectify transactions.   What the court does is to rectify a mistake in the way in which that transaction has been expressed in writing.   The grant of the remedy of rectification causes the written instrument to accord with the true intentions of the makers of that instrument (see per Peter Gibson L.J. in Racal Group Services Limited –v- Ashmore [1995] S.T.C. 1151 at 1154).   It was said by Lord Evershed M.R. in Whiteside –v- Whiteside [1950] Ch.65 at 71 that, as a discretionary remedy, rectification must be “cautiously watched and jealously guarded”.   Referring to this in Racal Peter Gibson L.J. went on to say this (at 1154j):-             “One aspect of that caution is the court’s insistence that the applicant for rectification should establish his case by clear evidence.   Foremost in what must be shown is the true intention to which effect has not been given in the instrument.   The evidential standard which the court requires has from time to time been expressed in different ways, but the judge, correctly in my view, directed himself by reference to the guidance given by Brightman L.J. in Thomas Bates and Son Limited –v- Wyndham’s (Lingerie) Limited [1981] 1 WLR 505 at 521: “The standard of proof required in an action of rectification to establish the common intention of the parties is, in my view, the civil standard of balance of probability.   But as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself.   It is not, I think, the standard of proof which is high, so differing from the normal civil standard, but the evidential requirement needed to counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties.” 42.       Over and above its effect on the evidential element within the burden of proof I, for my part, am unaware of what effect the requirement to “cautiously watch and jealously guard” the remedy of rectification has on its grant or refusal.   Nevertheless, the requirement to “cautiously watch and jealously guard” is expressly referred to in paragraph 14 – 04 of Snell’s Equity, 31st Edition.   43.       The entrenching of a high evidential requirement within the confines of a standard of proof on the balance of probabilities is a constant, and recurring, theme throughout the authorities.   But if I understand what Brightman L.J. had to say correctly, the strength and force of that entrenched evidential requirement must, to a large degree, be dependent upon the quality and nature of the written instrument itself.   I do not understand Brightman L.J.’s words to impose an entrenched high evidential requirement from some principles applicable, independently, to the qualities and nature of the remedy of rectification.   It is the very fact that the parties have signed, voluntarily, a written instrument that requires cogent evidence to dispel the evidence of their intentions as reflected in that instrument itself.  If my analysis be correct, then it would seem that if the instrument itself be poorly drafted, or self-evidently on its face conceptually unsound, the requirement for “cogent evidence” is reduced pro tanto.   Ultimately my decisions of fact will not turn on this point but the 1995 Agreement is, undoubtedly, poorly drafted and reflects an absence of anterior conceptual thought about the issues which were addressed, or which ought to have been addressed. 44.       In Swainland Builders Limited –v- Freehold Properties Limited [2002] EWCA Civ 560 ((2002) 2 EGLR 71) Peter Gibson L.J. (with whom Jonathan Parker L.J. agreed) summarised the conditions that had to be satisfied if the court were to order rectification in the following terms:-             “33       The party seeking rectification must show that: (1)        the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified;                         (2)        there was an outward expression of accord; (3)        the intention continued at the time of the execution of the instrument sought to be rectified;                         (4)        by mistake, the instrument did not reflect that common intention.                34.       I would add the following points derived from the authorities: (1)        The standard of proof required if the court is to order rectification is the ordinary standard of the balance of probabilities: “But, as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself….” (See Thomas Bates & Sons Ltd –v- Wyndham’s (Lingerie) Ltd [1981] 1 W.L.R. 505 at p521 per Brightman L.J.).   (2)        While it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if, in the substance and in detail, the common intention can be ascertained: Co-operative Insurance Society Ltd –v- Centremoor Ltd [1983] 2 EGLR 52 at p54, per Dillon L.J., with whom Kerr and Eveleigh L.J. J agreed; (3)        The fact that a party intends a particular form of words in the mistaken belief that it is achieving its intention does not prevent the court from giving effect to the true common intention: see Centremoor at p55 A–B and Re Butlin’s Settlement Trusts (Rectification) [1976] Ch 251 at p260 per Brightman J.”    45.      I would simply add that whilst an “outward expression of accord” has certainly been a requirement for rectification since the decision of Court of Appeal in Joscelyne –v- Nissen [1970] 2 QB 86, nevertheless it would now seem to be not an absolute requirement for rectification but, rather, an evidential factor.  Thus in Munt –v- Beasley [2006] EWCA Civ 370 Mummery L.J. (with whom the other members of the Court agreed) said this (at [36]):             “…I agree with the trend in recent cases to treat the expression “outward expression of accord” more as an evidential factor rather than a strict legal requirement in all cases of rectification.”   46.       These are the principles which I must apply.   I cannot stress too strongly that the mere fact that the court forms the view that the written instrument affords a “bad bargain” to one or other, or both, of the parties thereto is irrelevant.   Equally irrelevant is the fact that the Court forms the view that there must have been some “mistake” or that had the parties directed their minds to the issue they would have made a written instrument which would have better reflected what they truly would have wanted.   What is required is a positive “common intention” (not necessarily amounting to a contractually enforceable agreement) which the written instrument does not, by mistake, properly express.   This effectively requires the parties to have addressed, on facts such as those of the present matter, the issue on which rectification is sought.   It may be, and I need express no concluded view, that there could be cases where the parties can be said to have had a “common intention” by addressing so many other issues that an unexpressed, and unaddressed, common intention on one small remaining issue can be ascertained (effectively by implication from the points that they did address).  In effect what might be said to be happening in such a case is that the parties did, in reality, have the appropriate “common intention” – they simply did not realise that fact.   This is similar to the implication of terms into a contract on the basis of the true construction thereof.   It may also be reflective of decisions such as Caraman Rowley & May –v- Aperghis (1923) 40 TLR 124 where the omission of a term not in the parties’ mind might be cured by rectification if the term were one that was always taken for granted e.g. a force majeure clause in a shipping contract.   But the present case, on its facts, is not such a case.  ANALYSIS: 47.       The formulation of the rectification order sought on behalf of Hilda has varied from time to time (from the original form as set out in the amended defence and counterclaim to the form as set out in the skeleton argument and, then, to the further form as advanced by Mr Tidmarsh during the course of trial).   I do not think that even the final form is ideal.   But there is nothing fatal in this (for the reasons given by Peter Gibson L.J. in Swainland Builders).  The exact form of words from time to time advanced is immaterial.   The essential common intention, as advanced and alleged by Hilda, is clear.   It was that the Crem Land should, following dissolution of the farming partnership, remain vested in her and Joseph as tenants in common in equal shares. 48.       As the Crem Land had been carried, as an asset, in the partnership account (at its 1974 historic probate valuation) the effecting of this common intention would, on cessation of the farming partnership, require the appropriate accounting counter-entries to be made (which would have had the effect of charging one half of the carrying valuation of the Crem Land to Hilda’s capital account diminishing her interest in the farming partnership accordingly).   Whether Joseph and Hilda (or even the professionals apart from Mr Smith) ever properly realised this is open to speculation.  Indeed, it is open to speculation whether the professionals (other than Mr Smith) and, hence, Joseph and Hilda, properly realised that the Crem Land was being carried in the partnership accounts at a 1974, rather than 1995, valuation.   But these points seem to me to be neither here nor there if, in truth, there were the alleged common intention.   The points I have just identified seem to me to be points of mechanics in working out the fiscal effect, on dissolution of the farming partnership, of carrying out the common intention.  49.       Miss Reed, for Joseph, draws my attention to the nature of the standard of proof in a rectification claim and says, quite simply, that Hilda has not proved that the requisite common intention was formed.  In part Miss Reed relies upon an analysis of the events prior to entry into the 1995 Agreement, in part on the absence of direct evidence from Hilda as tested under cross-examination, and in part on what the parties (and their professional advisers) did after the problem with the Crem Land was first discovered in 1996.   Granted this latter submission I will have to analyse what did, indeed, occur after 1996 later in this judgment.   Suffice to say, for present purposes, that such analysis will not cause me to alter the basic views I form, on the facts, as to whether or not there was a continuing common intention as alleged up to entry into the 1995 Agreement.    50.       As to the absence of the ability to cross-examine Hilda, that is, of course, a potent point (just as is the point that Joseph was denied the opportunity of giving his version of events).   Miss Reed, however, goes further and suggests to me that paragraph 71 of Hilda’s witness statement is evidence that there was never any such common intention as that alleged.   In paragraph 71 Hilda said this:-             “The fact is that the 45 acres, clearly a  physical asset, was not valued at the time of my retirement nor was a reason given at the time as to why it was not valued.   It was not our intention that it should be transferred with other partnership assets to Joe.   It should not have been included in the partnership dissolution accounts without some other arrangement being made for  me to share in its development uplift.  I am certain that had that specific question been put to Joe in September 1995 he would have agreed that that was our intention at the time.”   51.       Miss Reed says, not without some considerable force, that the suggestion that it was not the common intention that the Crem Land should be transferred with other partnership assets to Joe is inconsistent with what is subsequently set out in this paragraph.  Indeed she says that the concluding sentence is inconsistent with there having been any “common intention” at all and consistent, only, with the issue not having been addressed by the parties. 52.       But I take into account the fact that, by the time of this witness statement, Hilda was an old lady in residential care.   This statement has clearly been prepared for her, at a time when there was less clarity of vision than there was, following trial, as to precisely what it was that had happened in 1995.  The idea of Joseph taking the land, but with some protection for Hilda in respect of its development uplift, has its genesis in correspondence between the professionals after the problem with the Crem Land had been identified.   If Hilda were not confused by reason of her age and infirmity she could, as a lay person, have become thoroughly confused by the fog which the professionals managed to create after the problem was identified in 1996.   And doubly so her son, Mr Charles Reece, to the extent he assisted in preparation of this witness statement.  I find Hilda’s evidence, in these circumstances, to be of no utility whatsoever to me either for, or against, the existence of the alleged common intention. 53.       I have already said that I am not necessarily satisfied that, at any material time, Joseph and Hilda fully appreciated that the Crem Land was being carried in the partnership accounts at 1974 valuation.  However, what I am perfectly satisfied about is that:- (1)        Hilda and Joseph knew that they owned the Crem Land (albeit that it was subject to the trusts of their partnership) and that it was different from the red land; (2)        that the Crem Land had a substantial potential development value (over and above its agricultural value).   54.       On 20th December 1990 Joseph and Hilda agreed, in their personal capacity, to sell 39 odd acres of the Crem Land and 85 odd acres of the red land to IRH (Development Services) Limited for a fixed consideration of £3,020,000 plus a further contingent consideration.    The sale was for the purposes of a major development as described in the sale agreement.  Ultimately, planning permission was not obtained therefor and, in any event, IRH (Development Services) Limited went into liquidation.   But the net effect was that a deposit of over £300,000 was forfeited which was retained partly by Hilda and Joseph as trustees of the Father’s estate (so far as it related to the red land) and by Hilda and Joseph personally (so far as it related to the Crem Land).   The apportionment of the forfeited deposit appears to have been on a straight forward acreage basis.   55.       By the end of 1994 each of David Wilson Estates, Persimmon Homes and Wimpey Homes were showing considerable interest in taking an option over various parts of the Crem Land and the red land.   Mr Cowling wrote to Joseph on the 21st November 1994 recommending Persimmon’s offer and identifying the potential value of the land in question as being between £250,000 to £300,000 per acre.  Negotiations were then commenced with Persimmon for the grant of an option.   This involved parts of both the red land and the Crem Land.   Therefore, as with the earlier agreement, the option had to be granted by Hilda and Joseph both (1) as trustees of Father’s estate and (2) personally in respect of the Crem Land.   Joseph and Hilda instructed a firm of solicitors (Woodcock & Thompson of Northampton) to deal with the negotiations with Persimmon.   Woodcock & Thompson undoubtedly wrote to Hilda about those negotiations.   As it happened, at the end of the day and whilst various drafts of the option were prepared, Persimmon withdrew.   But the negotiations with Persimmon were continuing until after the 1995 Agreement was entered into. 56.       There can be no doubt, in my view, that in these circumstances Hilda and Joseph knew full well that the Crem Land was different from the red land and that it had a substantial potential development value. 57.       It appears to have been in about March 1995 that the scheme ultimately reflected in the 1995 Agreement was first mooted.  It involved three professionals.   Mr Smith was the accountant to the partnership.  Mr Arnold, then a partner in the firm of Arnold Thomson of Towcester, acted as solicitor for both Hilda and Joseph.   Together (and it was primarily Mr Arnold) they put together the scheme for cessation of the farming partnership and apportionment of Grafton Lodge Farm.   For these purposes they utilised the services of Mr Cowling to value Grafton Lodge Farm and to suggest a scheme for apportionment thereof as between Joseph and Hilda.    58.       Whilst I can understand Mr Smith’s position (since he was primarily providing the information) I find it impossible to see how Mr Arnold could have thought that it was proper to act for both Joseph and Hilda in the implementation of the scheme.   It seems to me that there were the clearest possible conflicts of interest between Joseph and Hilda.   It is impossible not to reach the conclusion that the difficulties which, subsequently, arose might well have been avoided had Joseph and Hilda been represented by independent solicitors.   A further problem arose in that, for some reason best known to themselves, neither Joseph nor Hilda told Mr Arnold about the negotiations which were ongoing with Persimmon (through Woodcock & Thompson).  This would have drawn Mr Arnold’s specific attention to the significant importance of the Crem Land.   Mr Cowling was, of course, aware of the interest in the Crem Land but it appears that he told nobody (perhaps because he thought that they already knew).   59.       As early as 8th March 1995 Mr Smith sent to Mr Arnold copies of the partnership accounts for the last 5 years.   These showed, in the Schedule of Fixed Assets, “Freehold Land – 45 acres at Milton (Probate Value 4.03.74) – £21,375”. 60.       Following a valuation by Mr Cowling of Grafton Lodge Farm, together with suggestions by him as to how it could be apportioned, a vital meeting occurred at Mr Arnold’s offices.  Present were Hilda, Joseph, Mrs Skinner, Mr Smith, Mr Arnold and Mr Cowling.   I cannot rely on the recollections of either of Mr Smith or Mr Arnold as to what occurred at that meeting.   I have, of course, not heard from Joseph or Mrs Skinner.  However, Mr Cowling made notes.   They show discussions over various points as to the mechanics of apportionment and cessation of the partnership but, most importantly, this then follows: “7.        45 acres at Collingtree Retain as personal asset owned jointly by [Hilda] and [Joseph]”. Mr Cowling’s recollection, no doubt based in part on his Notes, is that at this meeting it was understood by everyone that the Crem Land would be retained by Joseph and Hilda as a personal asset.   In other words, Joseph would not acquire the same on dissolution of the partnership. 61.       That view is supported, entirely, by a letter dated 10th May 1995 (but dictated immediately after the meeting) from Mr Arnold to Mr Cowling (with copies to Joseph, Hilda and Mr Smith).   This letter summarised the effect of the meeting dealing, primarily, with Grafton Lodge Farm and then continued as follows:-             “We then discussed the land at Milton and Collingtree.   [Joseph] should take over the existing tenancies of their father’s land, on the basis that if any is sold he would receive all statutory tenant’s compensation (i.e. up to 6 years’ rent plus tenantright) but if any premium has to be paid by the landlords (for example for earlier entry than allowed by statute) then that extra payment would be split between the two of them.                 As regards the fields they own personally, these should come out of the partnership, but continue to be owned by both, though outside the farming business.  [Hilda] can receive an income equal to half a  rental for these fields, again by creating a tenancy in favour of her brother.”   62.       It is clear to me (despite some astounding interpretations of this letter by Mr Smith to the contrary) that the first of the paragraphs which I have just quoted related to the land at Stockwell and Maple Farms held by Joseph and Hilda as trustees of Father’s estate and in respect of which the farming partnership enjoyed the benefit of existing tenancies.   It is equally clear to me that the second paragraph related to the Crem Land.   This was the only land (as opposed to tenancies) comprised within the partnership as a partnership asset.  The description of the fields as ones owned “personally” might, in strict legal terms, be slightly inaccurate in the sense that the fields were held upon the trusts of the partnership.   Nothing turns on that.  But I do note the reference in this paragraph to the “creating” of a tenancy in favour of Joe. 63.       Accordingly, Mr Arnold’s contemporaneous letter clearly supports Mr Cowling’s notes and recollections and clearly establishes that, as at the 9th May 1995, there was an outwardly expressed common intention that, following cessation of the partnership, the Crem Land should be retained, both legally and beneficially, by Joseph and Hilda.   This, after all, only made common sense (granted the ongoing negotiations with Persimmon).   64.       It is worthy of note that, expressly on the terms of his own letter, Mr Arnold knew at that time what the true destination of the Crem Land was supposed to be.   65.       Thereafter, there were numerous discussions about the ultimate details of the proposed scheme.   In due course, Mr Cowling had to prepare a further valuation.   Underlying these discussions was the wish of Joseph to obtain the best deal possible for himself and the wish of Hilda to obtain a sum large enough to enable her to buy Wheelbarrow Cottage.  The relevant point is that Hilda and Joseph were discussing, indeed even arguing about, fine details.   The idea that, whilst these fine details were being argued about, they should have changed their common intention so that Hilda made a gift of the development value and part of the agricultural value of the Crem Land to Joseph is, quite simply, absurd. 66.       A further meeting occurred on the 22nd August 1995.   Mr Smith subsequently suggested, in correspondence, that the Crem Land had been discussed at that meeting.   Both Mr Cowling and Mr Charles Reece attended, and both made notes.   Both gave clear evidence that the Crem Land had not be discussed at this meeting and I have no difficulty in finding this to be the case.   The common intention as to the Crem Land, as reached at the meeting of 9th May 1995 was continuing, indeed did not need to be addressed. 67.       Mr Arnold produced various drafts of the 1995 Agreement for consideration, primarily by Mr Smith.  In his letter of 25th August 1995 Mr Smith expressly drew Mr Arnold’s attention to the need to reflect “the additional deficiency as a result of the withdrawal of the land, buildings and improvements” that appeared in the balance sheet of the partnership.  Mr Smith also suggests that the ultimate agreement should contain a revocation by Hilda of all further rights to claims in respect of any assets relating to the former partnership “including the land at Milton which does appear as a partnership asset”.   I find this latter comment a little difficult to interpret.   It could be taken to reflect the perception of Mr Smith that Joseph was to acquire the Crem Land.   But, if so, it seems surprising that Mr Smith did not suggest that the Crem Land (which he, at least, knew was being carried at 1974 probate valuation) should be revalued – in fairness to Hilda.   Certainly, by the 30th August 1995 Mr Smith was writing to Mr Arnold indicating that the draft of the 1995 Agreement should be varied to ensure that, in the taking of the final partnership account, the value of the property not merely at Grafton Regis but, also, at Milton should be excluded.  That is entirely consistent with the continuation of the common intention as formed at the meeting of 9th May 1995.   On 13th September 1995 Mr Arnold wrote to Joseph, copy to Mr Smith, indicating that he had adjusted the draft Agreement to reflect the points which Mr Smith had made.  In fact that was patently incorrect.  On 15th September 1995 Mr Smith wrote to Mr Arnold indicating that he had spoken to Joseph who was of the opinion that the draft Agreement was “what we originally started off with at the first meeting” (I supply the meeting of 9th May 1995).   So that is the clearest possible indication, albeit via Mr Smith, that Joseph believed that the common intention as identified at the meeting of 9th May 1995 was being carried into effect.   68.       It was against this background that the 1995 Agreement was entered into.   Bearing in mind the issues which arise over the evidential requirement within the standard of proof, it is worthy of note that clause 6 of the 1995 Agreement is an extraordinarily weak vehicle to achieve (as it did) an effect such as the wholesale transfer of beneficial ownership in the Crem Land from Hilda to Joseph (without Joseph paying anything other than one half of 1974 probate value therefor).  Also the frontespiece to the 1995 Agreement described it as an “Agreement relating to Grafton Lodge Farm” which shows where Mr Arnold’s main attention was directed.  69.       Taking all this together, I have not the slightest difficulty in reaching the clear conclusion that it was the common intention of Joseph and Hilda, outwardly expressed and continuing up to execution of the 1995 Agreement, that the Crem Land should, following dissolution of the partnership, belong beneficially to both of them equally. 70.       I have not the slightest difficulty, either, in finding that the interests of Joseph and Hilda were extraordinarily ill-served by Mr Arnold   (especially as Mr Smith had expressly drawn Mr Arnold’s attention to what needed to be done).   71.       Of course what should have occurred is that, in finalising the partnership accounts, the Crem Land should have been withdrawn from the fixed assets with counter deductions from the capital accounts (at 1974 probate value) .  In fact, this did not occur so, on final payment to Hilda, Joseph actually paid to Hilda one half of the 1974 probate value of the Crem Land (£10,687.50).   Mr Smith worked out the figures towards the end of 1995 and, even allowing for the additional sum payable to her for subsequent sale, under the option conferred by the 1995 Agreement, of a further 84 odd acres of Grafton Lodge Farm to Joseph, the ultimate amount payable to Hilda was only some £90,000.   The whole scheme did not, therefore, achieve the end of providing enough capital to Hilda to purchase Wheelbarrow Cottage.   It could, I suppose, be said to be surprising that Mr Smith did the calculation without, if there were such a common intention as I have found to exist, deducting the 1974 probate value of the Crem Land.   But, equally, it might be said that if he believed that Joseph was, truly, to take the Crem Land why did he not seek to initiate a re-valuation of the Crem Land?  I find it difficult to see how he could have believed that Joseph was supposed to become entitled to 45 acres of land at a valuation which was 20 years out of date (Mr Smith was the one person who, undoubtedly, knew that the Crem Land was being carried at historic valuation).   SUBSEQUENT EVENTS: 72.       The early part of 1996 was occupied with recriminations on behalf of Hilda to the effect that the sum payable to her was so small.  It was only by about the summer of 1996 that the fact that there could be a problem over the Crem Land was first identified.   Initially, Mr Arnold continued to act over the issues arising on the Crem Land for both Joseph and Hilda.   How he could have done so I do not understand.   At the end of March 1997 Mr Arnold left the firm of Arnold Thomson and joined the firm of Hewitson Becke & Shaw.  At about this time Mr Arnold started to act for Hilda alone and Joseph stayed with Arnold Thomson, being represented by Mr Thomson (who had had no involvement with this matter to date).   Granted what had happened, I find it impossible to see how Mr Arnold thought it was appropriate to continue to act for Hilda alone (and against Joseph).   Equally, although this may have well have been more difficult for Mr Thomson to perceive, I do not think he could properly act for Joseph.   His firm (albeit not him) had been involved in the creation of the problem – resolution thereof might well involve loss to his firm and, in any event, his firm had previously acted for Hilda.   73.       The correspondence passing between the professionals at this time (initially Mr Arnold and Mr Smith and, then, Mr Arnold, Mr Thomson and Mr Smith) is deeply depressing.   Mr Arnold should, immediately after the problem of the Crem Land arose, have realised that each of Joseph and Hilda needed independent advice (including independent advice as to what remedies they might have against him).   Instead, he tried to sort the matter out on the basis of persuading Joseph that whilst Joseph might well have acquired the Crem Land Joseph should allow, for some unspecified reason, Hilda to share in 50% of the development uplift thereof.   In all this Mr Arnold seems to have overlooked the fact that Hilda had already lost 50% of the difference between the 1974 probate value of the Crem Land and its true agricultural value as at September 1995.   When Mr Thomson comes on to the scene, he takes the view that Joseph has acquired the Crem Land under clause 6 of the 1995 Agreement and that by entering, ultimately, into the Deed of 23rd February 2000 Joseph was making a gift to Hilda of one half of the uplifted development value of the Crem Land.  In the middle is Mr Smith, no doubt trying to assist but, in reality, simply confusing matters further by displaying, in his correspondence, the traits which he subsequently showed in the witness box (namely misanalysis and forgetfulness).  The correspondence, continuing for over 3 years, contains a large number of mutual inconsistencies and an absolute fog of confusion. 74.       It is true that the correspondence on occasions reflects, both before and after Mr Thomson’s involvement, an assertion by Joseph that he had acquired the Crem Land by the 1995 Agreement.  But it is difficult to accept that this public presentation was what Joseph actual thought. The reality must have been that Joseph knew that there was something “iffy” about the position over the Crem Land.  Otherwise he would not have made what on his case was a substantial gift by entering into the Deed of the 23rd February 2000. 75.       Conversely, Miss Reed is right to draw my attention to the fact that nowhere, in this correspondence, is any record made by the professionals who were talking to her of Hilda claiming that the 1995 Agreement did not reflect what had originally been agreed between herself and Joseph in respect of the Crem Land.   But, equally, it is easy to see the theme that Hilda thought that there was something wrong over the Crem Land.  Before me are certain letters which bear her signature.   For example, there is a letter of the 6th June 1997 to Mr Arnold asking Mr Arnold to clarify the ownership of the Crem Land.  But the reality was that Hilda, now old, was being assisted by her son, Mr Charles Reece, who was still trying to piece together what had happened.  I cannot, in these circumstances, hold the absence of a rectification claim in a letter from Hilda against her.  Not only did Mr Charles Reece not understand, fully, what had happened but, even if Hilda could remember what had happened, it would hardly be surprising if she were put into total confusion by what the professionals were up to.  So when, on the 15th July 1997, she writes to Mr Arnold asking why the Crem Land was not valued (and refers to clause 15(ii) of the 1961 partnership deed) I strongly suspect it was Mr Charles Reece who was, in fact, writing (and with an incomplete grasp of what had gone on).  And if it were, in truth, Hilda I am not surprised that she was now seeing matters within the tramlines of valuation, granted the way in which the professionals were seeking to dispose of the problems. 76.       Put simply, I have made the clearest possible findings as to what the common intention was at all material times up to execution of the 1995 Agreement.  I see no reason, from the subsequent correspondence, to question or modify those specific findings. BOVIS 77.       On 6 September 1999 Joseph and Hilda in their capacity as trustees  of the estate of the Father and, also, in their capacity as legal owners of the Crem Land, entered into an Option Agreement with Bovis Homes Ltd (“Bovis”). The option related to the whole of the Crem Land and, also, the whole of the red land.  The last date on which Bovis could, possibly, lawfully exercise the option is 5th September 2011 (clause 4.2). 78.       Entry into the Bovis option resulted in Hilda and Joseph, to a degree, resolving the differences between themselves over the Crem Land.   On 23rd February 2000 they both entered into a Deed (“the 2000 Deed”) regulating the position as between themselves should Bovis exercise the option in respect of the Crem Land.   In essence, Joseph and Hilda agreed:- (1)        that the option fee payable by Bovis in respect of the Crem Land should be shared equally between them; and (2)        that if Bovis were to exercise the option any monies arising would be dealt with as follows.   Joseph should receive, as a prior charge on such monies, the open market agricultural value of that part of the Crem Land which was the subject matter of any option notice as at the date of the option notice.   Subject to this prior charge, all other monies payable by Bovis were to be shared equally between Joseph and Hilda.  79.       Now, clearly, if the Bovis option were to be exercised then the proceeds arising from exercise of that option would be dealt with in accordance with the terms of the 2000 Deed.  Mr Tidmarsh does not contend otherwise (notwithstanding the fact that the 2000 Deed involves a concession by Hilda – with Joseph retaining for his own benefit the difference between agricultural value in 1974 and agricultural value as at the date of exercise of the option).   80.       It might be thought that the 2000 Deed has rendered the present action  largely irrelevant.  That is not so.  It is by no means guaranteed that the Bovis option will be exercised because, as Mr Cowling indicates in his witness statement, planning permission for the Crem Land (although likely in due course) always has been, and still is, dependent upon on a change of planning policy.  That change may not occur before expiry of the Bovis option.   That the change will occur at some stage seems most likely.   THE PRESENT ACTION: 81.       Joseph, following execution of the 2000 Deed, became particularly anxious to have the Crem Land vested in his sole name.   Ultimately, the present action was commenced by Joseph on the 8th November 2004 seeking to enforce the terms of clause 6 of the 1995 Agreement and to have the Crem Land transferred into his sole name.  Initially, Hilda defended this action solely upon the basis that Joseph was not so entitled, granted terms which had to be implied into the 2000 Deed.   The rectification claim did not arise until amendment of the defence and counterclaim in September 2006.   LACHES: 82.       In these circumstances, Miss Reed advances two further inter-linked reasons why the court ought not to grant the discretionary remedy of rectification.   First, she says that the parties effectively settled their dispute by the 2000 Deed.   I do not agree.   All they settled by the 2000 Deed was what should happen in the event of the Bovis option being exercised.   If the Bovis option be not exercised then the position remains at large.   Indeed, it is now Joseph’s position that if the Bovis option be not exercised then he is entitled absolutely, under clause 6 of the 1995 Agreement, to the whole of the proceeds of sale of the Crem Land.   Nor can I regard the entry into the 2000 Deed as acquiescence by Hilda into the set of circumstances created by clause 6 of the 1995 Agreement.  By the 2000 Deed the parties simply regulated what would be the position were the Bovis option to be exercised.   They did not, and did not seek to, resolve all the outstanding issues between them.   But, as an alternative and somewhat more formidable point, Miss Reed says that the delay there has been in mounting a claim for rectification, combined with the entry into the 2000 Deed, is sufficient to disentitle Hilda to the equitable remedy of rectification.   This is a plea of “laches”.   In paragraph 5-19 of Snell’s Equity 31st Edition, it is stated that “laches” essentially consists of a substantial lapse of time coupled with the existence of circumstance which make it inequitable to enforce the claim.   Examples of such circumstances are then given.   For example, abandonment or release of the right claimed (that has not happened here), conduct akin to an estoppel (the inducing of a party to alter his position on the reasonable faith that a claim has been released or abandoned (that again has not happened here)) and evidential prejudice to a party.   To a degree  there has been evidential prejudice here because I have not been able to hear from Joseph, but I have factored that fully into the findings which I have made above. 83.       What is quite clear is that mere delay alone is immaterial.   There must be circumstances which make it inequitable for the claim to be enforced.  Subject to the evidential questions, which I have already addressed, I can find no such circumstances here.  The Crem Land was a continuing sore as between Joseph and Hilda from the moment when the problem was first discovered in the summer of 1996.   That it was not properly addressed is the fault of neither, but of their professional advisers.  The 2000 Deed was a sensible, but limited, attempt to reduce the damage caused by the problems over the Crem Land.  It, self evidently, did not address the wider issue as to what was to happen if the Bovis option were not exercised.   The parties must, in 2000, have realised that they were leaving that issue open.   By the very act of seeking to enforce clause 6 of the 1995 Agreement Joseph brought into issue the question whether the 1995 Agreement should, or should not, be rectified.  I cannot overlook the fact that, were I to refuse the remedy of rectification for laches, the effect would be to confer an extraordinary windfall on Joseph – a windfall which, ex hypothesi when looking at “laches” alone, is directly contrary to the common intention of the parties.  84.       Accordingly, assuming I have appropriately factored into the equation the evidential prejudice caused to the estate of Joseph by the late raising of the claim for rectification (and if I have not then I can be corrected by the Court of Appeal), I fail entirely to see what circumstances make it inequitable to grant the remedy of rectification.   CONCLUSION: 85.       In these circumstances, I intend to grant an order for rectification, although I am not fully satisfied with the precise form of wording presently suggested.  In essence, the order for rectification will provide:- (1)        that in the event of exercise of the Bovis option any proceeds of sale arising in the respect of the Crem Land under the Bovis option will be dealt with in accordance with the 2000 Deed; (2)        subject to this, the Crem Land will be held, and will be deemed to have been held as from the 30th September 1995, on trust for Hilda and Joseph as beneficial tenants in common in equity in equal shares. 86.       This, of course, still leaves the sum of £10,687.50 paid by Joseph to Hilda for the Crem Land in the working out of the 1995 Agreement.    Obviously, this does not create a problem if the Bovis option be exercised.   But if the Bovis option be not exercised, then the order for rectification which I shall make means that Hilda will have been enriched by this sum of £10,687.50 (since Joseph will not have a first charge on the proceeds of sale for agricultural value).   It seems to me that as rectification is a discretionary remedy I could make its grant conditional upon the imposition of terms.  Mr Tidmarsh has indicated that, in the event of rectification, Hilda would be willing to return this sum, plus interest, if appropriate.   87.       However, the position is not quite as simple as that.  I am not clear what is presently happening but for a number of years prior to his death Joseph continued to farm the Crem Land for his own benefit.   He has never paid Hilda a penny for this.   It seems to me that the correct way forward is this.   An account should be taken at the end of each year, commencing 1st October 1995, during which Joseph, or his estate, occupied the Crem Land.  The account should be taken in the following way.   As at the 30th September 1996 Joseph should be given credit for the sum of £10,687.50 plus interest at the appropriate rate.   From the resultant sum, there is to be deducted one half of a reasonable occupation rent for that part of the Crem Land which Joseph was farming.   The net resultant sum should then be carried into the account for the following year (ending 30th September 1997) and, again, attract interest.   This process should then be repeated until the point is reached where the £10,687.50 is entirely amortised.  That date having been identified, I will make it a term of the grant of an order for rectification that Hilda should make no claim against Joseph, or his estate, for any form of occupation rent for the Crem Land for any time prior to that date.  I make no comment as to what should happen in respect of Joseph’s occupation of the Crem Land subsequent to that date.   That was not an issue before me.   The purpose of the account to which I just referred is to give absolute protection to Joseph, or his estate, up to the appropriate date so as to amortise the £10,687.50p.   88.       Even this does not, entirely, fully protect Joseph.   Although not an integral part of the common intention which I have found to have existed at all material times, I have no difficulty in, also, finding that it was the understanding of Joseph and Hilda that unless, and until, the Crem Land were sold Joseph could occupy the same, for agricultural purposes, albeit that he would not have the right to prevent a sale.  It may, or may not, be that issues will now arise over the right of Joseph’s estate to remain in occupation of the Crem Land.  I will hear further submissions, on hand-down, as to how this issue can be addressed – it being my intention that the order for rectification should be granted on terms which do not prejudice Joseph’s estate against what Joseph might reasonably have expected to occur (in terms of occupation of the Crem Land) as a result of the common intention as expressed at the meeting of 9th May 1995 being carried into effect.  89.       I also note that the sole surviving trustee of the legal estate conveyed by the 1959 Conveyance is Hilda.   It occurs to me that, in her residential home, she is no position properly to deal with the Crem Land nor to fulfil her duties as a trustee of the legal estate.   Equally, a further trustee ought to be appointed to represent the interests of Joseph’s estate in the Crem Land.   90.       These matters could, of course, be left for decision subsequent to hand-down of my judgment.  I am extremely loath, however, to leave the parties to a position where there may be further disputes or, even, satellite litigation.   I therefore invite the parties (without making it a condition of the rectification order I have granted) to address before me, on hand-down, the question as to who should be trustees of the 1959 Conveyance and how this should be achieved.   91.       I will hear further submissions, on hand-down, as to the precise wording of the rectification order I intend to make, as to the consequential issues set out above, and as to costs.