McBride v UKI - Appeal by Melanie Mooney

Background

The claimant, Mr Neil McBride, was involved in a non-fault accident on the 13th November 2012.

As a result of the accident he brought a claim for hire charges incurred via Accident Exchange in the sum of £40,215.11.

Although there were many issues raised in the defence of the claim and pursued to trial, the issue which remained contentious was that of the judge’s assessment of the rate of hire at the trial, which took place on 4th March 2015.

Rates evidence was adduced by both parties, however due to the nature of the vehicle hired (a Jaguar) a nil excess/deposit/collision damage waiver (CDW) were simply not available on the conventional hire market.

As such, at the trial the judge considered the rates evidence relied upon by the claimant. He selected a rate based upon an assessment pursuant to the guidelines which had been laid down in the then, very new, Court of Appeal case of Stevens v Equity.

After considering the evidence, the judge awarded the sum of £19,900.

The Appeal

The Claimant submitted an appeal and in accordance with the rules, the respondent (represented by Keoghs and Steven Turner of Counsel) submitted a statement in response to the appeal. That statement set out the fact that Stevens v Equity was treated as a test case by all concerned and if the applicant was unhappy with the decision, the correct course of action was to apply to the Supreme Court.

The applicant’s request for permission was considered by LJ Kitchin (who delivered the lead judgment in Stevens v Equity) and permission was refused.

He refused permission on the following grounds on 4th June 2015 (order drawn 22nd June 2015):

1.   There is no inconsistency between the decision of this Court in the Stevens case and the earlier decisions of this Court in the Bent and the Burdis case.

2.    The district judge considered the evidence before him and identified the lowest reasonable rate charges by a reputable supplier, mainstream or local. He made no error in so doing.

3.    As the respondent says, it would have been open to the district judge to consider adding the cost of an excess reduction product to the basic hire rate or £270 (including VAT) had that course been urged upon him.

The applicant, as is their right, requested that the matter be listed for an oral permission hearing. At that hearing the proposed respondent had no permission to make submissions.

The hearing proceeded before Lord Justice Underhill who advised the parties that he had been giving the matter some thought. He gave his views on the grounds of appeal in reverse order.

Ground 3 – whether the claimant is entitled to a nil excess via the availability of cdw products

The advocates notice on behalf of the applicant had been filed a matter of days before the hearing and asserted that Lord Justice Kitchin’s reasons for refusal were incorrect, as claimant’s counsel (Mr Willetts) had in fact urged the trial judge to allow £20 per day for cdw charges. Upon review of the transcript, and upon it being pointed out by the proposed respondent’s representatives, it was accepted that that course of action had not in fact been urged upon the judge.

Lord Justice Underhill surmised that this case cannot be the only one where the issue of cdw and excesses is an issue and so it seemed to him that it would be useful, in this very contentious arena, for the court to give some guidance on the point therefore, subject to some amendment of the Grounds of Appeal (to be provided within seven days) permission was granted.

Ground 2 – What does “mainstream” and “local reputable” mean?

At the trial, the judge had commented that he had never heard of the conventional hire companies contained within the report.

It was then contended that in fact there was a higher rate within the report from a company which was considered mainstream. LJ Underhill commented that the ground as it was currently drafted was “very dodgy” and the applicant was asked whether they wished to amend their Grounds of Appeal to reflect what they now said was the correct position. Having taken instructions, it was confirmed that permission to amend was sought and granted. Permission to appeal however, was not granted and was adjourned to be decided by a full Court when Ground 3 came to be determined.

Ground 1 – Stevens is inconsistent with the Court of Appeal’s previous decisions in Burdis v Livesey and Bent (No. 2)

Lord Justice Underhill could not be more clear as to his views of this ground. He stated that in his view there was no inconsistency with Stevens and previous decisions. Stevens had been fully argued and the decision clear. If there had been no authority then he could have seen there was an argument to be made, however he expressed no view on the merit of that, but Stevens was there and this Ground of Appeal had no merit whatsoever.

He interestingly commented that his lone decision in this court at this time would not be authoritative so he considered that three Lord/Lady Justices should hear the application for permission therefore he allowed the applicant to renew their request for permission to the date of hearing Ground 3 arguments.

Lord Justice Underhill was at pains to make it clear that the course of action which he has taken should not be seen as a covert comment on the merit of Ground 1, he does not think it has any merit at all.

For the avoidance of doubt, he asked that it be noted that Stevens v Equity remains good law.

Original article can be found here.