Interpretation, implied terms and rectification

See DP No 147 Chapter 5, esp para 5.12 

In Brown v Rysaffe Trustee Company (CI) Limited [2011] CSOH 26 (8 February 2011) Lord Glennie grappled with issues of interpretation of a loan agreement alongside questions of implied terms and rectification.  In his opinion, the Lord Ordinary approved the “modern” approach to interpretation emerging from the decisions in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 and Aberdeen City Council v Stewart Milne Group Limited [2010] CSIH 81 (see para 29, per Lord Glennie), and noted that he was satisfied that it was possible to interpret the terms of the contract without any need to resort to the process of implication.  He noted, moreover, that the court’s power of rectification, in section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, was only to be directed to cases where a document executed by parties fails to achieve what they were both in agreement it was meant to achieve, and that it was not necessary to apply that remedy in this instance, as the correct result could be achieved through interpretation alone (see paras 33-36, per Lord Glennie).