REUTERS | Mike Segar

Christmas quiz 2017

He wears red and white for important occasions and expects us all to behave. Yes, this year’s Christmas quiz is a tribute to Coulson J, soon to leave the TCC for the Court of Appeal.

Not only did Coulson J deliver some of this year’s most important judgments, he did so with his customary style. Along with the usual legal questions, many of this year’s teasers refer to his pronouncements. How many can you remember? 

For the answers to all the questions, see our answers document.

Question 1 (he’s making a list and checking it twice…)

Where a contract requires the contractor to provide an item in accordance with a design prescribed by the employer, and which, when provided, will comply with prescribed criteria, who takes the risk that conformity with the prescribed design will inevitably result in the product falling short of one or more of the prescribed criteria?

  • The employer because it prescribed the design.
  • The contractor because it agreed to work to a design which would render the item incapable of meeting the criteria to which it has agreed.
  • The contractor but only if it negligent.

For the answer to question 1, see our answers document.

Question 2 (…gonna find out who’s naughty and nice)

What did Coulson J think some parties treated “as a form of game, in which they can seek to exploit the rules in the hope of obtaining a tactical advantage over the other side”?

For the answer to question 2, see our answers document.

Question 3 (he knows if you’ve been bad or good, so be good for goodness sake!)

Which dispute did Coulson J refer to as a “sorry saga”, hoping that “it will come to be regarded as an example of how not to conduct a public procurement challenge”?

For the answer to question 3, see our answers document.

Question 4 (oh, what a laugh it would have been)

What did Coulson J describe as “potentially just another self-inflicted complication” that “ha[s] become much more common…[in civil proceedings] for reasons which remain obscure…”?

For the answer to question 4, see our answers document.

Question 5 (I saw three ships go sailing by…)

In which judgment did Coulson J criticise an expert witness and, in a turn of phrase that is already becoming legendary, suggesting that:

“For him, it might be said that The Ikarian Reefer was a ship that passed in the night.”

For the answer to question 5, see our answers document.

Question 6 (gone away is the bluebird)

Where an expert witness should have been called to give evidence by a party, but is absent from the proceedings:

  • The proceedings simply continue without the court hearing evidence from that witness and that is the end of the matter.
  • The court can draw adverse inferences from the absence of a particular witness.
  • The court can call its own expert witness evidence on a particular point.

For the answer to question 6, see our answers document.

Question 7 (Christmas don’t be late)

Which of the following statements is true?

  • Concurrent delay is now dealt with explicitly in each of JCT 2016 Edition, NEC4 and FIDIC 2017 Edition.
  • Parties to a contract governed by English law may agree expressly that the contractor is not entitled to an extension of time where an employer delay event is concurrent with another delay for which the contractor is responsible (in other words, concurrent delay).
  • Parties to a contract governed by English law are not permitted to agree that the contractor is not entitled to an extension of time where there is concurrent delay because this offends against the prevention principle.
  • The prevention principle is not triggered in cases of concurrent delay.

For the answer to question 7, see our answers document.

Question 8 (ten lords a leaping)

In the construction industry it is common for the parties that have an insurable interest in the project to be co-insured. Which of the following statements is true?

  • The principle that co-insureds cannot claim damages against each other in respect of an insured loss means that insurers are generally prevented from pursuing a subrogation claim against a co-insured.
  • The principle that co-insureds cannot claim damages against each other in respect of an insured loss does not necessarily prevent a co-insured claiming against a third party wrongdoer who was not a co-insured.
  • The principle that co-insureds cannot claim damages against each other in respect of an insured loss exists because the liability to pay damages is excluded by the terms of the contract.
  • The principle that co-insureds cannot claim damages against each other in respect of an insured loss exists because as between the co-insureds the insurer’s payment makes good any loss and thereby satisfies any liability to pay damages.

For the answer to question 8, see our answers document.

How did you do?

None correct: Hø Hø… er… Højgaard.

1-4 correct: Naughty elf.

4-7 correct: Santa’s little helper.

8 out of 8: Red-nosed reindeer, you’ll go down in history!

Practical Law Yassir Mahmood

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