Ghosts of the Past - The Rule in Pigot's Case

For all of the strengths that common law legal systems have, one of the weaknesses is ghosts of past in the form of ancient case law which rears its head in unwelcome circumstances.  For slightly over 400 years most common law jurisdictions have laboured under the strictures of the decision of Sir Edward Coke in Pigot’s Case (1614) 1 Co Rep 26b, 77 ER 1177. Yet despite the risks that this rule presents, very few lawyers – let alone lay persons – are familiar with the rule or its effect.
 

Background to Pigot’s Case

In 1611 Henry Hudson was suffering the indignities of a mutiny after naming Hudson Bay after himself, and Shakespeare’s last play (The Tempest, also ironically about a shipwreck) was debuting. In the same year, with rather less fanfare, a certain Mr Henry Pigot executed a bond acknowledging his indebtedness to one Benedict Winchcombe.  Three years passed, and Winchcombe was subsequently appointed High Sherriff of Oxford. At this point some unknown but well-meaning person inserted the words “High Sherriff of Oxford” in Latin under Winchcombe’s name on the deed. Later that same year, Winchcombe tried to enforce the deed against Pigot, but Pigot claimed that the deed could not be enforced against him on the grounds it had been altered, and was therefore void.
 

The judgment in Pigot’s Case

The case came before the eminent jurist, Sir Edward Coke. In a lengthy judgment that departed from previous precedent, and gave all appearances of trying to rewrite the law on the subject, Coke opined that:
 

  • A deed is void if it is altered in any way by the person in favour of whom the deed is executed
  • A deed is also void if altered in a material way by a third party; but
  • A deed is not void if it is altered in a non-material way by a third party.

In this case, because the amendment was held by the jury not to be material, and because an unknown third party had amended the deed, Mr Winchcombe was able to enforce his claim.

However, although Coke’s judgment had the effect of softening the previous law (which had been to the effect that any alteration to a deed would render it void - Elliott v Holder (1567) 3 Dyer 261b), the rule remains a trap for the unwary liable to catch out parties in modern times. In 1791 the rule relating to deeds was extending to contracts and written instruments generally (Master v Millar (1791) 14 TR 320). The rule was modified in subsequent changes to impose a general requirement that alterations must be material, but in 1996 the rule was still recognised in Co-operative Bank plc v Tipper [1996] 4 All ER 366 as being “harsh”.
 

Analysis of Pigot’s Case and its application to modern contracts

In the seventeenth century the execution of a deed was a solemn and drawn out process. The scarcity and expense of paper, as well as lower levels of literacy, mean that documents still tended to be short and concise, and viewed with a sort of hallowed reverence. But the position in relation to commercial transactions today is very different. Paper is cheap and plentiful, word processing makes it easy to prepare many different versions of documents which are negotiated up until completion, and transactions are expansively documented, often across multiple different contracts most of which will run to dozens – if not hundreds – of pages.  Moreover, in modern commercial transactions it is entirely common for parties to execute signature pages in advance of the documents being finalised to enable completion to occur in giant rush before funding cut-off periods (notwithstanding the censure of this practice by the courts in R (on the application of Mercury Tax Group Limited) v HMRC [2008] EWHC 272).  In modern commercial practice it is far from a rare occurrence that the parties execute and deliver contracts and other instruments, only to discover afterwards the particulars are missing, and empty square brackets have been left in.  Rightly or wrongly, lawyers will often insert those particulars in manuscript upon the instructions of their client.

Are such documents at risk? They might well be. The lawyers are the agent of the client, and so the actions of the lawyer are treated as the actions of the client.  Accordingly, any alteration of the instrument after its execution can potentially risk negating it unless the change can be shown to be immaterial (unless of course all parties have consented to the manuscript change). Even if the lawyer or other person making the change is not the agent of person in whose favour the deed is executed, the change can still render the deed void if it is material.  Inserting an address for notices is probably not material. Inserting margin on a rate of interest probably is.  In any event, the prudent course for any lawyer on discovering that a detail has been omitted or mis-stated in any contract is to seek the consent of all parties before seeking to make any alterations.