The Conjoined Test Appeals of Neil McBride v The Conjoined Test Appeals of Neil McBride v. UK Insurance Limited and Peter Clayton v. EUI Limited

Listed to be heard together in the Court of Appeal on the 21st and 22nd February 2017; McBride v. UK Insurance – appeal from judgment at Multi-Track Trial heard immediately after the Court of Appeal had handed down its decision in Stevens v. Equity Syndicate Management Limited [2015] EWCA Civ 93; Clayton v. Admiral Insurance – second appeal

First Issue – Was Stevens decided Per Incuriam? Inconsistent with the ratios of Burdis v. Livsey and Bent (No.2)? Decided in ignorance of the ratio in Dickinson v. Tesco PLC [2013] EWCA Civ 36? Decided without full argument or when the principle decided was not at issue?

Second Issue – A reconsideration of, or a judicial gloss upon, the meaning of the terms first used within Stevens Comments of Underhill LJ made at the McBride PTA hearing; “Mainstream supplier”; “Lowest reasonable rate”; paragraph [40] of Kitchin LJ’s judgment in Stevens; lowest rate within a cluster of similar rates?

Third Issue – Nil hire excesses and the cost of direct excess waiver products Claimants’ cases – Marcic v. Davies [1985] C.L.Y. 12, CA; Bee v. Jenson (No.2) [2006] EWHC 3359, paragraph [40] of Kitchin LJ’s judgment in Stevens and Cheung v. UK Insurance (CC at Birmingham, 27 March 2015, HHJ Worster); Defendants’ cases – Shaw v. McLeans (CC at Oxford, April 2015, HHJ Harris QC); Lawson v. Mullen (CC at Newcastle, 12 June 2015, HHJ Freedman); Shah v. James (CC at Leicester, July 2015, Recorder Hedley).

Fourth Issue – The relevance of “bolt-on” insurance products, hire excess liability insurance policies Directly in issue in the case of McBride (but not in Clayton where the Defendant was refused permission to bring a cross-appeal in respect of the cost of such insurance products); Claimants’ cases – Paragraph [40] of Kitchin LJ’s judgment in Stevens; Ash v. AXA (CC at Leeds, 11 July 2011, HHJ Langan QC) and Dhami v. Amlin (CC at Birmingham, 23 July 2013, HHJ Oliver-Jones QC) and Cheung v. UK Insurance (CC at Birmingham, 27 March 2015, HHJ Worster). Defendants’ cases - Lawson v. Mullen (CC at Newcastle, 12 June 2015, HHJ Freedman) and Shah v. James (CC at Leicester, July 2015, Recorder Hedley).

Fifth Issue – The extent to which a Trial Judge can make adjustments to the rates in evidence when assessing a BHR Directly in issue in the case of Clayton; Bent (No.1), per Jacob LJ.