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1 An Introduction to Equity relief that is determined and effected by the court. 52 The judges have a discretion both as to whether to order rescission and, if so, as to the nature and extent of that relief, which might be subject to conditions. 53 The discretion is exercised with reference to recognized principles, so it is still correct to describe the claimant as having a right to rescission if an equitable vitiating factor is identified and none of the bars to rescission apply. 54 Before the contract is rescinded by the court, the claimant will have only an equity to rescind if one of the equitable vitiating factors applies. This gives the claimant an entitlement to apply to the court for an order to rescind the contract. 55 In addition to Equity’s concurrent jurisdiction to rescind by virtue of the grounds recognized at Common Law, there is an exclusive equitable jurisdiction of rescission in Equity where a contract has been induced by non-fraudulent misrepresentation, or undue influence, or where the defendant has procured the contract in breach of fiduciary duty, 56 or where the contract can be considered to be an unconscionable bargain. Various bars to rescission have been recognized that generally apply regardless of the ground for rescission and regardless of whether rescission occurs at Common Law or in Equity, although the bars are interpreted more restrictively in Equity than at Common Law. These include that it would not be possible to restore the defendant substantially to the position in which they were before the contract was made; 57 the claimant has waived the right to rescind and has affirmed the contract; where a substantial time has elapsed before the claimant sought to rescind the contract; 58 or where the effect of rescission would be to harm the rights of third parties. 59 3. Rectification This is an equitable remedy that enables the court to amend the terms of a legal docu ment which, by virtue of mistake, fails to reflect accurately the intention of the parties to it, 60 either the common intention of the parties or the intention of one party of which the other party knew. Rectification is a drastic equitable remedy because it enables the court to rewrite a written document. Although, being equitable, the remedy is discretionary, the equitable jurisdiction is founded on clear principles. 61 Rectification is justified on the ground that Equity will not countenance a party enforcing the terms of a written con tract when this would be against conscience because that document is inconsistent with what the parties had both intended or mutually understood each other to intend when the document was executed. 62 Being an equitable remedy, rectification is subject to the usual bars, such as delay or ac quiescence, 63 or where a bona fide purchaser for value has acquired an interest as a result of the transaction. 64 In most cases, rectification will simply ensure that the contractual © Oxford University Press 52 Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, 1278 (Lord Blackburn); Spence v Crawford [1939] 3 All ER 271, 288 (Lord Wright). 53 Hurstanger Ltd v Wilson [2007] EWCA Civ 299, [2007] 4 All ER 1118, [48] (Tuckey LJ).

54 Spence v Crawford [1939] 3 All ER 271, 281 (Lord Thankerton). 55 Phillips v Phillips (1861) 4 De GF & J 208, 218 (Lord Westbury). 57 Spence v Crawford [1939] 3 All ER 271, 288–9 (Lord Wright). 58 Leaf v International Galleries [1950] 2 KB 86.

56 See Section 15.7.1, p. 501.

59 Tennent v The City of Glasgow Bank and Liquidators (1879) 4 App Cas 615, 621 (Earl Cairns LC). 60 FHSC Group Holdings Ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361, [2020] Ch 365, [6] (Leggatt LJ). 61 Daventry District Council v Daventry and District Housing Ltd [2011] EWCA Civ 1153, [2012] 1 WLR 1333, [194] (Lord Neuberger MR). 62 FHSC Group Holdings Ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361, [2020] Ch 365, [146] (Leggatt LJ). 63 Beale v Kyte [1907] 1 Ch 564. 64 Smith v Jones [1954] 1 WLR 1089.

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