Yet another case that applied the Great Peace test was the case of Brennan v Bolt Burden.92 In
that case, “the claimant’s claim for damages for personal injury was issued on 7 June 2001, four
months before the limitation period expired, and purportedly served on the defendants on 6
October. A judge held that it was served outside the limitation period on 8 October. Accordingly,
the claimant agreed to compromise the claim. However, the case in which the decision on service
had been made was subsequently overruled and the claimant successfully appealed the judge’s
decision that the claim form had been served out of time. The defendants applied to stay the
proceedings alleging that there was a binding contractual compromise. The claimant alleged that
the compromise agreement was void for a common mistake of law…It was a question as to
whether a mistake rendered the contract void and in any event, it was doubtful that a mistake of
law would be capable of passing the applicable test in Great Peace, namely whether the mistake
rendered the agreed performance (or contractual adventure) impossible. This was not a case of
impossibility of performance since the compromise was at all times performable.”93
In both cases, it is observed that the parties to the contract who were claiming to have the
contract declared void based on common mistake were unable to satisfy the extreme Great Peace
test, and were forced to have to settle with unjust results. The fact is that it is extremely difficult
to prove that a contract becomes impossible to perform due to a common mistake, thus after the
Great Peace decision, the remedy of having a contract declared void became quite illusive.
Furthermore, if the Great Peace guidelines are to be followed, it places a very heavy burden on
contracting parties whereby they would be compelled to be involved in meticulous contract
drafting to prevent these discrepancies of common mistake. The reality is that one cannot
imagine every conceivable inconsistency in a contract, and what this test asserts is that if a
common mistake occurs, and one cannot satisfy those guidelines, then one is denied the remedy
of having the contract declared as void. This is very unreasonable and unfair to contracting
parties since this can in turn discourage parties to become involved in contractual agreements,
because of the pain-staking contract drafting process described above, and the fear of injustices
caused to them if they are seeking to have a contract declared void, and are unable to satisfy the
impracticable Great Peace test.
92
93
[2004] EWCA Civ 1017; [2005] QB 303
Jill Poole, Casebook on Contract Law(10thed, Oxford)
70