“Last week we asked everyone to stay at home if you had one of two key symptoms: a high temperature or a new and continuous cough. Today, we need to go further, because according to SAGE it looks as though we’re now approaching the fast growth part of the upward curve. And without drastic action, cases could double every 5 or 6 days. So, first, we need to ask you to ensure that if you or anyone in your household has one of those two symptoms, then you should stay at home for fourteen days. That means that if possible you should not go out even to buy food or essentials, other than for exercise, and in that case at a safe distance from others. If necessary, you should ask for help from others for your daily necessities. And if that is not possible, then you should do what you can to limit your social contact when you leave the house to get supplies. And even if you don’t have symptoms and if no one in your household has symptoms, there is more that we need you to do now. So, second, now is the time for everyone to stop non-essential contact with others and to stop all unnecessary travel. We need people to start working from home where they possibly can. And you should avoid pubs, clubs, theatres and other such social venues. It goes without saying, we should all only use the NHS when we really need to. And please go online rather than ringing NHS 111. Now, this advice about avoiding all unnecessary social contact, is particularly important for people over 70, for pregnant women and for those with some health conditions … So third, in a few days’ time – by this coming weekend – it will be necessary to go further and to ensure that those with the most serious health conditions are largely shielded from social contact for around 12 weeks … And it’s now clear that the peak of the epidemic is coming faster in some parts of the country than in others. And it looks as though London is now a few weeks ahead. So, to relieve the pressure on the London health system and to slow the spread in London, it’s important that Londoners now pay special attention to what we are saying about avoiding non-essential contact, and to take particularly seriously the advice about working from home, and avoiding confined spaces such as pubs and restaurants. Lastly, it remains true as we have said in the last few weeks that risks of transmission of the disease at mass gatherings such as sporting events are relatively low. But obviously, logically as we advise against unnecessary social contact of all kinds, it is right that we should extend this advice to mass gatherings as well. And so we’ve also got to ensure that we have the critical workers we need, that might otherwise be deployed at those gatherings, to deal with this emergency. So from tomorrow, we will no longer be supporting mass gatherings with emergency workers in the way that we normally do. So mass gatherings, we are now moving emphatically away from.”
“Second, as well as access to finance, businesses need support with their cashflow and fixed costs. Following the changed medical advice yesterday, there are concerns about the impact on pubs, clubs, theatres and other hospitality, leisure and retail venues. Let me confirm that, for those businesses which do have a policy that covers pandemics, the government’s action is sufficient and will allow businesses to make an insurance claim against their policy.”
“If the only barrier to your business making an insurance claim was a lack of clarity on whether the government advising people to stay away from businesses, rather than ordering businesses to shut down, was sufficient to make a claim on business interruption insurance: • The government’s medical advice of 16 March is sufficient to enable those businesses which have an insurance policy that covers both pandemics and government ordered closure to make a claim - provided all other terms and conditions in their policy are met. Businesses should check the terms and conditions of their specific policy and contact their providers if in doubt. • However, most businesses have not purchased insurance that covers pandemic related losses. As such, any affected businesses should note the government’s full package of support, including the Coronavirus Business Interruption Loan Scheme and business rates holiday.” • The government’s medical advice of 16 March is sufficient to enable those businesses which have an insurance policy that covers both pandemics and government ordered closure to make a claim - provided all other terms and conditions in their policy are met. Businesses should check the terms and conditions of their specific policy and contact their providers if in doubt. • However, most businesses have not purchased insurance that covers pandemic related losses. As such, any affected businesses should note the government’s full package of support, including the Coronavirus Business Interruption Loan Scheme and business rates holiday.”
“And we come today to the key issue of schools where we have been consistently advised that there is an important trade off. … So looking at the curve of the disease and looking at where we are now – we think now that we must apply downward pressure, further downward pressure on that upward curve by closing the schools. So I can announce today and Gavin Williamson making statement now in House of Commons that after schools shut their gates from Friday afternoon, they will remain closed for most pupils – for the vast majority of pupils – until further notice. I will explain what I mean by the vast majority of pupils. … But of course, as I’ve always said, we also need to keep the NHS going and to treat the number of rising cases. So we need health workers who are also parents to continue to go to work. And we need other critical workers with children to keep doing their jobs too – from police officers who are keeping us safe to the supermarket delivery drivers, social care workers who look after the elderly and who are so vital. We will be setting out more details shortly about who we mean in these groups. So we therefore need schools to make provision for the children of these key workers who would otherwise be forced to stay home. And they will also need to look after the most vulnerable children.”
“And that means we have to take the next steps, on scientific advice and following our plan, we are strengthening the measures announced on Monday which you will remember. And of course people have already made a huge effort to comply with those measures for avoiding unnecessary social contact. But we need now to push down further on that curve of transmission between us. And so following agreement between all the formations of the United Kingdom, all the devolved administrations, we are collectively telling, telling cafes, pubs, bars, restaurants to close tonight as soon as they reasonably can, and not to open tomorrow. Though to be clear, they can continue to provide take-out services. We’re also telling nightclubs, theatres, cinemas, gyms and leisure centres to close on the same timescale. Now, these are places where people come together, and indeed the whole purpose of these businesses is to bring people together. But the sad things [sic] is that today for now, at least physically, we need to keep people apart. And I want to stress that we will review the situation each month, to see if we can relax any of these measures. And listening to what I have just said, some people may of course be tempted to go out tonight. But please don’t. You may think you are invincible, but there is no guarantee you will get mild symptoms, and you can still be a carrier of the disease and pass it on to others. So that’s why, as far as possible, we want you to stay at home, that’s how we can protect our NHS and save lives.”
“Requirement to close premises and businesses during the emergency 2.—(1) A person who is responsible for carrying on a business which is listed in Part 1 of the Schedule must— (a) during the relevant period— (i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and (ii) cease selling food or drink for consumption on its premises; or (b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the relevant period. (2) For the purposes of paragraph (1)(a), food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises. (3) For the purposes of paragraph (1)(a)(ii) and (b), an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) to be treated as part of the premises of that business. (4) A person responsible for carrying on a business which is listed in Part 2 of the Schedule must cease to carry on that business during the relevant period. (5) If a business listed in the Schedule (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (1) if it closes down business A. (6) The Secretary of State must review the need for restrictions imposed by this regulation every 28 days, with the first review being carried out before the expiry of the period of 28 days starting with the day after the day on which these Regulations are made. (7) As soon as the Secretary of State considers that the restrictions set out in this regulation are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, the Secretary of State must publish a direction terminating the relevant period. (8) A direction published under paragraph (7) may terminate the relevant period in relation to some of the businesses listed in the Schedule, or all businesses listed in the Schedule. (9) For the purposes of this regulation— (a) “coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2); (b) a “person responsible for carrying on a business” includes the owner, proprietor, and manager of that business; (c) the “relevant period” starts when these Regulations come into force and ends on the day specified in a direction published by the Secretary of State under paragraph (7).”
“From this evening I must give the British people a very simple instruction - you must stay at home. Because the critical thing we must do is stop the disease spreading between households. That is why people will only be allowed to leave their home for the following very limited purposes: • shopping for basic necessities, as infrequently as possible • one form of exercise a day - for example a run, walk, or cycle - alone or with members of your household; • any medical need, to provide care or to help a vulnerable person; and • travelling to and from work, but only where this is absolutely necessary and cannot be done from home. That’s all - these are the only reasons you should leave your home. You should not be meeting friends. If your friends ask you to meet, you should say No. You should not be meeting family members who do not live in your home. You should not be going shopping except for essentials like food and medicine - and you should do this as little as you can. And use food delivery services where you can. If you don’t follow the rules the police will have the powers to enforce them, including through fines and dispersing gatherings. To ensure compliance with the Government’s instruction to stay at home, we will immediately: • close all shops selling non-essential goods, including clothing and electronic stores and other premises including libraries, playgrounds and outdoor gyms, and places of worship; • we will stop all gatherings of more than two people in public – excluding people you live with; • and we’ll stop all social events, including weddings, baptisms and other ceremonies, but excluding funerals.” • shopping for basic necessities, as infrequently as possible • one form of exercise a day - for example a run, walk, or cycle - alone or with members of your household; • any medical need, to provide care or to help a vulnerable person; and • travelling to and from work, but only where this is absolutely necessary and cannot be done from home. • close all shops selling non-essential goods, including clothing and electronic stores and other premises including libraries, playgrounds and outdoor gyms, and places of worship; • we will stop all gatherings of more than two people in public – excluding people you live with; • and we’ll stop all social events, including weddings, baptisms and other ceremonies, but excluding funerals.”
“PART 1 1. Restaurants, including restaurants and dining rooms in hotels or members’ clubs. 2.—(1) Cafes, including workplace canteens (subject to sub-paragraph (2)), but not including— (a) cafes or canteens at a hospital, care home or school; (b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; (c) services providing food or drink to the homeless. (2) Workplace canteens may remain open where there is no practical alternative for staff at that workplace to obtain food. 3. Bars, including bars in hotels or members’ clubs. 4. Public houses. PART 2 5. Cinemas. 6. Theatres. 7. Nightclubs. 8. Bingo halls. 9. Concert halls. 10. Museums and galleries. 11. Casinos. 12. Betting shops. 13. Spas. 14. Nail, beauty, hair salons and barbers. 15. Massage parlours. 16. Tattoo and piercing parlours. 17. Skating rinks. 18. Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities. 19. Funfairs (whether outdoors or indoors). 20. Playgrounds, sports courts and outdoor gyms. 21. Outdoor markets (except for stalls selling food). 22. Car showrooms. 23. Auction Houses. PART 3 24. Food retailers, including food markets, supermarkets, convenience stores and corner shops. 25. Off licenses and licensed shops selling alcohol (including breweries). 26. Pharmacies (including non-dispensing pharmacies) and chemists. 27. Newsagents. 28. Homeware, building supplies and hardware stores. 29. Petrol stations. 30. Car repair and MOT services. 31. Bicycle shops. 32. Taxi or vehicle hire businesses. 33. Banks, building societies, credit unions, short term loan providers and cash points. 34. Post offices. 35. Funeral directors. 36. Laundrettes and dry cleaners. 37. Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health. 38. Veterinary surgeons and pet shops. 39. Agricultural supplies shops. 40. Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part. 41. Car parks. 42. Public toilets.”
“There was a big benefit, I think, as we brought in the lockdown measures, of the whole country moving together. We did think about moving with London and the Midlands first, because they were more advanced in terms of the number of cases, but we decided that we are really in this together, and the shape of the curve, if not the height of the curve, has been very similar across the whole country. It went up more in London but it’s also come down more, but the broad shape has been similar, which is what you’d expect, given that we’ve all been living through the same lockdown measures. The other thing to say is that it isn’t just about the level, it’s also about the slope of the curve, and if the R goes above one anywhere, then that would eventually lead to an exponential rise and a second peak and an overwhelming of the NHS in that area unless it’s addressed, so although the level of the number of cases is different in different parts, the slope of the curve has actually been remarkably similar across the country, so that argues for doing things as a whole country together.”
“And so no, this is not the time simply to end the lockdown this week. Instead we are taking the first careful steps to modify our measures. And the first step is a change of emphasis that we hope that people will act on this week. We said that you should work from home if you can, and only go to work if you must. We now need to stress that anyone who can’t work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work. And we want it to be safe for you to get to work. So you should avoid public transport if at all possible – because we must and will maintain social distancing, and capacity will therefore be limited. So work from home if you can, but you should go to work if you can’t work from home. And to ensure you are safe at work we have been working to establish new guidance for employers to make workplaces COVID-secure. And when you do go to work, if possible do so by car or even better by walking or bicycle. But just as with workplaces, public transport operators will also be following COVID-secure standards. And from this Wednesday, we want to encourage people to take more and even unlimited amounts of outdoor exercise. You can sit in the sun in your local park, you can drive to other destinations, you can even play sports but only with members of your own household. You must obey the rules on social distancing and to enforce those rules we will increase the fines for the small minority who break them … In step two – at the earliest by June 1 – after half term – we believe we may be in a position to begin the phased reopening of shops and to get primary pupils back into schools, in stages, beginning with reception, Year 1 and Year 6. … And step three - at the earliest by July - and subject to all these conditions and further scientific advice; if and only if the numbers support it, we will hope to re-open at least some of the hospitality industry and other public places, provided they are safe and enforce social distancing…”
“10. The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds[1971] 1 WLR 1381 , 1383H1385D and in Reardon Smith Line Ltd v Yngvar HansenTangen (trading as HE Hansen-Tangen)[1976] 1 WLR 989 , 997, Lord Wilberforce affirmed the potential relevance to the task of interpreting the parties’ contract of the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations. When in his celebrated judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 , 912-913 Lord Hoffmann reformulated the principles of contractual interpretation, some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past. But Lord Bingham of Cornhill in an extrajudicial writing, “A New Thing Under the Sun? The Interpretation of Contracts and the ICS decision” (2008) 12 Edin LR 374, persuasively demonstrated that the idea of the court putting itself in the shoes of the contracting parties had a long pedigree. 11. Lord Clarke of Stone-cum-Ebony JSC elegantly summarised the approach to construction in the Rainy Sky case[2011] 1 WLR 2900 , para 21f. In the Arnold case[2015] AC 1619 all of the judgments confirmed the approach in the Rainy Sky case: Lord Neuberger of Abbotsbury PSC, paras 13-14; Lord Hodge JSC, para 76 and Lord Carnwath JSC, para 108. Interpretation is, as Lord Clarke JSC stated in the Rainy Sky case (para 21), a unitary exercise; where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause (the Rainy Sky case, para 26, citing Mance LJ in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] 2 All ER (Comm) 299, paras 13, 16); and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest: the Arnold case, paras 20, 77. Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. 12. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated: the Arnold case, para 77 citing In re Sigma Finance Corpn[2010] 1 All ER 571 , para 12, per Lord Mance JSC. To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. 13. Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type. The iterative process, of which Lord Mance JSC spoke in Sigma Finance Corpn[2010] 1 All ER 571 , para 12, assists the lawyer or judge to ascertain the objective meaning of disputed provisions.”
“6. … As I see no ambiguity in the way that the Policy defined its cover and as the exclusion clause reflected what The Law Society of England and Wales as the regulator of the solicitors’ profession had authorised as a limitation of professional indemnity cover, I see no role in this case for the doctrine of interpretation contra proferentem. … 7. The extent of AIG’s liability is a matter of contract and is ascertained by reading together the statement of cover and the exclusions in the Policy. An exclusion clause must be read in the context of the contract of insurance as a whole. It must be construed in a manner which is consistent with and not repugnant to the purpose of the insurance contract. There may be circumstances in which in order to achieve that end, the court may construe the exclusions in an insurance contract narrowly. The judgment of Carnwath LJ in Tektrol Ltd (formerly Atto Power Controls Ltd) v International Insurance Co of Hanover Ltd [2006] 1 All ER (Comm) 780, to which counsel for Impact referred, is an example of that approach. But the general doctrine, to which counsel also referred, that exemption clauses should be construed narrowly, has no application to the relevant exclusion in this Policy. An exemption clause, to which that doctrine applies, excludes or limits a legal liability which arises by operation of law, such as liability for negligence or liability in contract arising by implication of law: Photo Production Ltd v Securicor Transport Ltd[1980] AC 827 , 850 per Lord Diplock. The relevant exclusion clause in this Policy is not of that nature. The extent of the cover in the Policy is therefore ascertained by construction of all its relevant terms without recourse to a doctrine relating to exemption clauses.”
“The fact that a provision in a contract is expressed as an exception does not necessarily mean that it should be approached with a pre-disposition to construe it narrowly. Like any other provision in a contract, words of exception or exemption must be read in the context of the contract as a whole and with due regard for its purpose. As a matter of general principle, it is well established that that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed. (See, among many authorities, Dairy Containers Ltd v Tasman Orient Line CV[2005] 1 WLR 215 , para 12, per Lord Bingham.) This applies not only where the words of exception remove a remedy for breach, but where they seek to prevent a liability from arising by removing, through a subsidiary provision, part of the benefit which it appears to have been the purpose of the contract to provide. The vice of a clause of that kind is that it can have a propensity to mislead, unless its language is sufficiently plain. All that said, words of exception may be simply a way of delineating the scope of the primary obligation.”
“65. In my judgment, applying this approach, the Court must adopt an approach to the interpretation of insurance exclusions which is sensitive to their purpose and place in the insurance contract. The Court should not adopt principles of construction which are appropriate to exemption clauses - i.e. provisions which are designed to relieve a party otherwise liable for breach of contract or in tort of that liability - to the interpretation of insurance exclusions, because insurance exclusions are designed to define the scope of cover which the insurance policy is intended to afford. To this end, the Court should not automatically apply a contra proferentem approach to construction. That said, there may be occasions, where there is a genuine ambiguity in the meaning of the provision, and the effect of one of those constructions is to exclude all or most of the insurance cover which was intended to be provided. In that event, the Court would be entitled to opt for the narrower construction. This result may be achieved not only by the applicable of the contra proferentem approach, but also the approach adopted by Lord Clarke, JSC in Rainy Sky SA v Kookmin Bank[2011] UKSC 50 ;[2011] 1 WLR 2900 , that in the case of ambiguity, the Court may opt for the more commercially sensible construction, at paragraph 21: “If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other”
“Where the parties have used unambiguous language, the court must apply it”
“Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the Courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the Courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.”
“Applicable to all sections other than Section 5 – Employers’ Liability and Section 6 – Public Liability Contamination or Pollution Clause a) The insurance by this Policy does not cover any loss or Damage due to contamination pollution soot deposition impairment with dust chemical precipitation adulteration poisoning impurity epidemic and disease or due to any limitation or prevention of the use of objects because of hazards to health. b) This exclusion does not apply if such loss or Damage arises out of one or more of the following Perils: • Fire, Lightning, Explosion, Impact of Aircraft • Vehicle Impact Sonic Boom • Accidental Escape of Water from any tank apparatus or pipe Riot, Civil Commotion, Malicious Damage • Storm, Hail Flood Inundation Earthquake • Landslide Subsidence Pressure of Snow, Avalanche Volcanic Eruption a) (bis) If a Peril not excluded from this Policy arises directly from Pollution and/or Contamination any loss or Damage arising directly from that Peril shall be covered. b) (bis) All other terms and conditions of this Policy shall be unaltered and especially the exclusions shall not be superseded by this clause.”
“Business Activities directly connected with the Business shown in the Schedule and no other for the purposes of this Policy … … Damage Material loss destruction or Damage. … Premises The part of the Premises at the address or addresses specified in the Schedule which You occupy for the purposes of the Business and otherwise occupied as offices or private dwellings unless otherwise agreed with Us.”
“Business Interruption Business Interruption shall mean loss resulting from interruption of or interference with the Business carried on by You at the Premises in consequence of loss or destruction of or Damage insured under Section 1 to Property used by You at the Premises for the purpose of the Business … Incident a) Loss or destruction of or Damage to Property used by You at the Premises for the purpose of the Business; or b) Loss destruction of or Damage to Your books of account or other Business books or records at the Premises in respect of Book Debts.”
“Section 2 – Gross Profit/Estimated Gross Profit (if shown as operative in the Schedule) The insurance is limited to loss of Gross Profit due to: a) reduction in Turnover; and b) increase in cost of working; and the amount payable as indemnity shall be: a) in respect of a reduction in Turnover: b) the sum produced by applying the Rate of Gross Profit to the amount by which the Turnover during the Indemnity Period shall fall short of the Standard Turnover in consequence of the Incident … Section 2 – Gross Revenue/Estimated Gross Revenue (if shown as operative in the Schedule) The insurance is limited to a) loss of Gross Revenue; … and the amount payable as indemnity shall be: a) in respect of loss of Gross Revenue: the amount by which the Gross Revenue during the Indemnity Period shall fall short of the Standard Gross Revenue in consequence of the Incident …”
“Under Rate of Gross Profit, Annual Turnover, Standard Turnover, Annual Rent receivable, Standard Rent, Receivable Annual Gross Revenue and Standard Gross Revenue adjustments shall be made as may be necessary to provide for the trend of the Business and for variations in or other circumstances affecting the Business either before or after the Incident or which would have affected the Business had the Incident not occurred so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Incident would have been obtained during the relative period after the Incident.”
“In the event of interruption or interference to the Insured’s Business as a result of: … viii. Notifiable Diseases & Other Incidents: a) discovered at an Insured Location; b) attributable to food or beverages supplied at or from the Insured Locations; c) which are reasonably likely to result from an organism discovered at an Insured Location; and/or d) occurring within the Vicinity of an Insured Location, during the Period of Insurance … within the Territorial Limits, the Insurer agrees to pay the Insured the resulting Business Interruption Loss.” 127. The Definitions included the following: “9. Business Interruption Loss means: i. the Reduction in Turnover; ii. Increased Cost of Working; and/or iii. Research & Development Expenditure. … 17. Covered Event means the events as described in Insuring Clause 2.1, 2.2 2.3 or 2.4 or any applicable Extension. … 42. Indemnity Period means the period of time during which interruption or interference to the Insured’s Business occurs as a consequence of the Covered Event beginning with the occurrence of the Covered Event and ending not later than the end of the Maximum Indemnity Period thereafter. … “9. Business Interruption Loss means: 69. Notifiable Diseases & Other Incidents means: i. one of the following tabulated diseases and/or illnesses: Acute encephalitis Acute infectious hepatitis Acute meningitis Acute poliomyelitis Anthrax Botulism Brucellosis Cholera Diphtheria Enteric Fever (typhoid or Paratyphoid fever) Food poisoning Infectious bloody diarrhea [sic] Invasive group A streptococcal disease Legionnaires Disease Leprosy Malaria Measles Meningitis Meningococcal septicemia Mumps Plague Rabies Rubella Scarlet fever Severe Acute Respiratory Syndrome (SARS) Smallpox Tetanus Tuberculosis Typhus Viral hepatitis Viral haemorrhagic fever (VHF) Whooping cough Yellow fever ii. any additional diseases notifiable under the Health Protection Regulations (2010), where a disease occurs and is subsequently classified under the Health Protection Regulations (2010) such disease will be deemed to be notifiable from its initial outbreak; iii. any additional notifiable diseases in animals as determined by the Department for Environment, Food & Rural Affairs and Animal and Plant Health Agency or any successor agency; iv. any accidental or malicious deposit of radioactive isotopes, biological or chemical materials reasonably believed by the Insured to be hazardous; v. defective sanitation or any other enforced closure of an Insured Location by any governmental authority or agency or a competent local authority for health reasons or concerns. … 93. Reduction in Turnover means: i. the amount by which the Turnover during the Indemnity Period falls short of the Standard Turnover; LESS ii. any costs normally payable out of Turnover (excluding depreciation) as may cease or be reduced during the Indemnity Period as a consequence of the Covered Event. … 107. Standard Turnover means the Turnover during that equivalent period before the date of any Covered Event which corresponds with the Indemnity Period to which adjustments have been made to take into account the trend of the Insured’s Business and for variations in or other circumstances affecting the Insured’s Business either before or after the Covered Event or which would have affected the Insured’s Business had the Covered Event not occurred so that the figures thus adjusted will represent as nearly as may be reasonably practicable the results which but for the Covered Event would have been obtained during the Indemnity Period. … 116. Turnover means: i. the amount paid or payable to the Insured for goods sold and/or services rendered in the course of the Insured’s Business at the Insured Locations; and ii. Rent Receivable; and iii. interest income on the Insured’s capital deposits and monetary balances. … 120. Vicinity means an area surrounding or adjacent to an Insured Location in which events that occur within such area would be reasonably expected to have an impact on an Insured or the Insured’s Business.”
“The COMPANY will also indemnify the INSURED as provided in The Insurance of this Section for such interruption as a result of … 4. Defective Sanitation NOTIFIABLE HUMAN DISEASE Murder or Suicide (a) closure or restriction on the use of the PREMISES by order of a Public Authority consequent upon vermin pests defects in drains or defective sanitation at the PREMISES (b) any occurrence of a NOTIFIABLE HUMAN DISEASE at the PREMISES or attributable to food or drink supplied from the PREMISES (c) any discovery of an organism at the PREMISES likely to result in the occurrence of a NOTIFIABLE HUMAN DISEASE (d) any occurrence of a NOTIFIABLE HUMAN DISEASE within a radius of 25 miles of the PREMISES (e) any occurrence of murder or suicide at the PREMISES. Section Exclusions The COMPANY will not be liable for (i) for any amount in excess of£25,000 (ii) for any costs incurred in the cleaning repair replacement recall or checking of the property (iii) for any loss arising from those PREMISES that are not directly affected by the occurrence discovery or accident.”
“The COMPANY will pay as indemnity the amount of the loss sustained by the INSURED as follows A) In respect of the reduction in GROSS INCOME the amount by which the GROSS INCOME during the INDEMNITY PERIOD falls short of the STANDARD GROSS INCOME due to the DAMAGE.”
“For each item in the schedule, we will pay you for any interruption or interference with the business resulting from damage to property used by you at the premises for the purpose of the business occurring during the period of insurance caused by an insured cover and provided that damage is not excluded under section 1.” “Damage” is defined as “Loss or destruction of or damage to the property insured as stated in the schedule and used by you in connection with the business.”
“We will pay you for: ... 6. Notifiable disease, vermin, defective sanitary arrangements, murder and suicide Consequential loss as a result of interruption of or interference with the business carried on by you at the premises following: a) i. any notifiable disease at the premises or due to food or drink supplied from the premises; ii. any discovery of an organism at the premises likely to result in the event of a notifiable disease; iii. any notifiable disease within a radius of twenty five miles of the premises; b) the discovery of vermin or pests at the premises which causes restrictions on the use of the premises on the order of the competent local authority; c) any accident causing defects in the drains or other sanitary arrangements at the premises which causes restrictions on the use of the premises on the order of the competent local authority; or [d)] any murder or suicide at the premises. The maximum we will pay for any one loss will not exceed£100,000 . Conditions 1. For the purpose of this additional cover premises will mean only those locations stated in the premises definition. If this policy includes an additional cover which deems damage at other locations to be insured, the additional cover will not apply to this additional cover. 2. We will not be liable for any costs incurred in the cleaning, repair, replacement, recall or checking of property. 3. We will only be liable for loss arising at those premises which are directly affected by the loss, discovery or accident. …”
“Indemnity period The period beginning with the loss and ending not later than the maximum indemnity period after that during which the results of the business will be affected following the loss’ However for the Notifiable disease additional cover the following definition applies: The period during which the results of the business will be affected following the loss, discovery or accident beginning: a) In the case of 1 and 4 [by which is meant (a) and (d) in the version quoted above] with the date of the loss or discovery; or b) In the case of 2 and 3 [i.e. (b) and (c)] with the date from which the restrictions on the premises are applied and ending not later than the maximum indemnity period after that. … Maximum indemnity period The indemnity period stated in the schedule, other than under the Notifiable Disease and the Lottery win by your employees additional covers where it is 3 months. Notifiable disease Illness sustained by any person resulting from: a) food or drink poisoning; or b) any human infectious or contagious disease (excluding Acquired Immune Deficiency Syndrome (AIDS)) an outbreak of which the competent local authority has stipulated will be notified to them.”
“The turnover during that period in the 12 months immediately before the date of the damage which corresponds with the indemnity period to which adjustments will be made as necessary to provide for the trend of the business and for variations in or other circumstances affecting the business had the damage not occurred, so that the figures adjusted represent as nearly as may be reasonably practicable the results which but for the damage would have been obtained during the relative period after the damage.”
“We will pay you for: … 6. … consequential loss following: a) … iii. any notifiable disease within a radius of twenty five miles of the premises …”
“Loss resulting from interruption of or interference with the business carried on by you at the premises following damage to property used by you at the premises for the purpose of the business.”
“Murder, suicide or disease interruption of or interference with the business arising from: a) any human infectious or human contagious disease (excluding Acquired Immune Deficiency Syndrome (AIDS) or an AIDS related condition) an outbreak of which the local authority has stipulated shall be notified to them manifested by any person whilst in the premises or within a twenty five (25) mile radius of it; b) actual or suspected murder, suicide or sexual assault at the premises; c) injury or illness sustained by any person arising from or traceable to foreign or injurious matter in food or drink provided in the premises; d) vermin or pests in the premises [sic]; e) the closing of the whole or part of the premises by order of a competent public authority consequent upon defect in the drains or other sanitary arrangements at the premises. The insurance by this clause shall only apply for the period beginning with the occurrence of the loss and ending not later than three (3) months thereafter during which the results of the business shall be affected in consequence of the damage [sic]”
“Trend adjusted Trend adjusted means adjustments will be made to figures as may be necessary to provide for the trend of the business and for variations in or circumstances affecting the business either before or after the damage or which would have affected the business had the damage not occurred, so that the figures thus adjusted will represent as nearly as may be reasonably practicable the results which but for the damage would have been obtained during the relative period after the damage.”
“3.2.4 Infectious disease, murder or suicide, food or drink or poisoning Loss resulting from interruption of or interference with the business in consequence of any of the following events: a) any occurrence of a notifiable disease at the premises or attributable to food or drink supplied from the premises; b) any discovery of any organism at the premises likely to result in the occurrence of a notifiable disease; c) any occurrence of a notifiable disease within a radius of 25 miles of the premises; d) the discovery of vermin or pests at the premises which cause restrictions on the use of the premises on the order or advice of the competent local authority; e) any accident causing defects in the drains or other sanitary arrangements at the premises which causes restrictions on the use of the premises on the order of the competent local authority; f) any occurrence of murder or suicide at the premises; provided that the g) insurer shall not be liable for any costs incurred in cleaning, repair, replacement, recall or checking of property except as stated below; h) insurer shall only be liable for loss arising at those premises which are directly subject to the incident; i) insurer’s maximum liability under this cover extension clause in respect of any one incident shall not exceed GBP 100,000 or 15% of the total sum insured (or limit of liability) for this insured section B, whichever is lesser, any one claim and GBP 250,000 any one period of insurance.”
“18.47.1 Indemnity period means the period beginning with the occurrence of the damage and ending not later than the maximum indemnity period thereafter during which the results of the business will be affected in consequence of the damage. 18.47.2 But for the purposes of clause 3.2.4 the indemnity period shall mean the period during which the results of the business shall be affected in consequence of the an [sic] event beginning in the case of: 3.2.4 a) and d) with the occurrence or discovery of the incident, 3.2.4 b) and c) above with the date from which the restrictions on the premises are applied, and ending not later than twelve (12) months thereafter.” and ending not later than twelve (12) months thereafter.”
“Notifiable disease means illness sustained by any person resulting from: 18.67.1 food or drink poisoning, or 18.67.2 any human infectious or human contagious disease, an outbreak of which the competent local authority has stipulated shall be notified to them excluding Acquired Immune Deficiency Syndrome (AIDS), an AIDS related condition or avian influenza”
“The insurer shall indemnify the insured for the following, if shown as insured in the schedule: … 3.4.8 Notifiable disease, murder or suicide, food or drink poisoning Loss resulting from interruption of or interference with the business as covered by this section in consequence of any of the following events: a) an occurrence of a notifiable disease at the premises or attributable to food or drink supplied from the premises; b) the discovery of any organism at the premises likely to result in the occurrence of a notifiable disease; c) an occurrence of a notifiable disease within a radius of one (1) mile of the premises; d) the discovery of vermin or pests at the premises which causes restrictions on the use of the premises on the order or advice of the competent local authority; e) an accident causing defects in the drains or other sanitary arrangements at the premises which causes restrictions on the use of the premises on the order or advice of the competent local authority; f) an occurrence of actual or suspected murder, suicide or actual or alleged sexual assault at the premises. Provided that: i) the insurer shall only be liable for loss arising at those premises which are directly subject to the incident; ii) the insurer shall not be liable for any costs incurred in cleaning, repair, replacement, recall or checking of property except as provided for in the Property section. ‘Notifiable disease’ means illness sustained by any person resulting from any diseases that may be notifiable under theHealth Protection (Notification) Regulations 2010 .”
“A single and unexpected event, which occurs at an identifiable time and place.”
“interruption or interference with the business arising from: (a) any notifiable human infectious or contagious disease manifested by any person whilst in the premises or within a 25 mile radius of it…”
“What is covered We will insure you for your financial losses and other items specified in the schedule, resulting solely and directly from an interruption to your activities caused by: … Public authority 13. your inability to use the insured premises due to restrictions imposed by a public authority during the period of insurance following: a. a murder or suicide; b. an occurrence of any human infectious or human contagious disease, an outbreak of which must be notified to the local authority; c. injury or illness of any person traceable to food or drink consumed on the insured premises; d. defects in the drains or other sanitary arrangements; e. vermin or pests at the insured premises. … How much we will pay We will pay up to the amount insured … … Loss of income The difference between your actual income during the indemnity period and the income it is estimated you would have earned during that period or, if this is your first trading year, the difference between your income during the indemnity period and during the period immediately prior to the loss, less any savings resulting from the reduced costs and expenses you pay out of your income during the indemnity period. … Loss of gross profit The sum produced by applying the rate of gross profit to any reduction in income during the indemnity period plus increased costs of working and alternative hire costs less any expenses or charges which cease or are reduced. … Business trends Provided that you advise us of your estimated annual income, or estimated annual gross profit if applicable, at the beginning of each period of insurance, the amount insured will automatically be increased to reflect any special circumstances or trends affecting your activities, either before or after the loss. The amount that we will pay will reflect as near as possible the result that would have been achieved if the insured damage had not occurred.”
“Notifiable human disease Any human infectious or human contagious disease, an outbreak of which must be notified to the local authority.” notified to the local authority.”
“We will insure you for your financial losses and any other items specified in the schedule, resulting solely and directly from an interruption to your business caused by: … Public authority 5. your inability to use the salon due to restrictions imposed by a public authority during the period of insurance following: a. a murder or suicide; b. an occurrence of a notifiable human disease; c. injury or illness of any person traceable to food or drink consumed on the premises; d. defects in the drains or other sanitary arrangements; e. vermin or pests at the premises.”
“Business trends The amount we pay for loss of income or loss of gross profit will be amended to reflect any special circumstances or business trends affecting your business, either before or after the loss, in order that the amount paid reflects as near as possible the result that would have been achieved if the insured damage or restriction had not occurred.”
“We will also insure you for your loss of gross profit up to the limit stated in the schedule as applicable resulting solely and directly from an interruption to your business caused by the following: … Public authority d. your inability to use the business premises due to restrictions imposed by a public authority following: i. a murder or suicide; ii. an occurrence of any human infectious or human contagious disease an outbreak of which must be notified to the local authority; iii. injury or illness of any person traceable to food or drink consumed on the premises; iv. vermin or pests at the premises.”
“We will insure you for your financial losses and any other items specified in the schedule, resulting solely and directly from an interruption to your business caused by: … Public authority 7. your inability to use the business premises due to restrictions imposed by a public authority during the period of insurance following: a. a murder or suicide; b. an occurrence of a notifiable human disease within one mile of the business premises; c. injury or illness of any person traceable to food or drink consumed on the premises; d. defects in the drains or other sanitary arrangements; or e. vermin or pests at the premises.”
“Business trends The amount we pay for loss of gross profit will be amended to reflect any special circumstances or business trends affecting your business, either before or after the loss, in order that the amount paid reflects as near as possible the result that would have been achieved if the insured damage, insured failure, cyber-attack or restriction had not occurred.”
“The amount that we will pay will reflect as near as possible the result that would have been achieved if the insured damage had not occurred [or if you had not been unable to use the insured premises due to restrictions imposed by a public authority following an occurrence of any human infectious or human contagious disease, an outbreak of which must be notified to the local authority]”
“Loss as a result of A) closure or restrictions placed on the Premises as a result of a notifiable human disease manifesting itself at the Premises or within a radius of 25 miles of the Premises. B) injury or illness sustained by any customer or Employee arising from or traceable to foreign or injurious matter in food or drink sold from the Premises. C) closing of the whole or part of the Premises by order of the Public Authority for the area in which the Premises are situate as a result of defects in the drains and other sanitary arrangements at the Premises D) murder, rape or suicide occurring at the Premises. E) closure or restrictions placed on the Premises on the advice or with the approval of the Medical Officer of Health or the Public Authority as a result of vermin and pests at the Premises.”
“The actual amount of the reduction in the Gross Revenue received by You during the Indemnity Period solely as a result of Damage to Buildings…”
“Prevention of access to The Premises”
“Damage to property in the vicinity of The Premises by any cause included under the Property Damage Section which hinders or prevents access to The Premises.”
““Preventing” delivery means, in my view, rendering delivery impossible; and “hindering” delivery means something less than this, namely, rendering delivery more or less difficult, but not impossible.”
“Rate of Gross Profit and Standard Turnover may be adjusted to reflect any trends or circumstances which (i) affect The Business before or after the Damage (ii) would have affected The Business had the Damage not occurred. The adjusted figures will represent, as near as possible, the results which would have been achieved during the same period had the Damage not occurred.”
“Accidental loss or destruction of or damage to Property Insured”
“In respect of each item in the Schedule We will indemnify You in respect of any interruption or interference with The Business as a result of Damage occurring during the Period of Insurance by (1) any cause not excluded by the terms of the Property Damage and, or Theft Sections of Your policy…”
“Rate of Gross Profit and Standard Turnover may be adjusted to reflect any trends or circumstances which (i) affect The Business before or after the Prevention of access to The Premises due to the actions or advice of government due to an emergency which is likely to endanger life… (ii) would have affected The Business had the Prevention of access to The Premises due to the actions or advice of government due to an emergency which is likely to endanger life not occurred. The adjusted figures will represent, as near as possible, the results which would have been achieved during the same period had the Prevention of access to The Premises due to the actions or advice of government due to an emergency which is likely to endanger life not occurred.”
“The insurance by this section is extended to cover loss resulting from interruption of or interference with your usual activities as a result of the following…”
“The insurance by this section is extended to cover loss as insured hereunder directly resulting from interruption of or interference with the business carried on by you at the premises in consequence of the following…”
“1 Prevention of access Access to or use of the premises being prevented or hindered by (a) damage to neighbouring property by any of the insured events (b) any action of Government Police or Local Authority due to an emergency which could endanger human life or neighbouring property Excluding (i) any restriction of use of less than four hours (ii) any period when access to the premises was not prevented or hindered (iii) closure or restriction in the use of the premises due to the order or advice of the competent local authority as a result of an occurrence of an infectious disease (or the discovery of an organism resulting in or likely to result in the occurrence of an infectious disease) food poisoning defective drains or other sanitary arrangements or vermin or pests Provided that our liability in respect of any one occurrence shall not exceed the sum insured by the items or any limit of liability shown in the schedule”
“What is covered (a) any occurrence of a specified disease being contracted by a person at the premises or within a radius of 25 miles of the premises; (b) any discovery of an organism at the premises likely to result in the occurrence of a specified disease being contracted by a person at the premises; (c) any injury or illness sustained by any person arising from or traceable to foreign or injurious matter in food or drink provided at the premises; (d) any accident causing defects in drains or other sanitary arrangements at the premises; which causes restrictions in the use of the premises on the order or advice of the competent local authority. (e) any discovery of vermin at the premises; (f) murder, rape or suicide at the premises. Special conditions (i) We shall only be liable for the loss arising at those premises which are directly affected by the occurrence, discovery or accident. In the event that the policy includes an extension which deems damage at other locations to be damage at the premises such extension shall not apply to this Extension. (ii) Indemnity period shall mean the period during which your results shall be affected in consequence of the occurrence, discovery or accident beginning with the date from which the restrictions on the premises are applied (or in the case of (f) above with the date of occurrence) and ending not later than three months thereafter. (iii) In respect of (e) you must obtain our consent before you restrict the use of the premises. What is not covered Costs incurred in the cleaning, repair, replacement, recall or checking of property.” (a) any occurrence of a specified disease being contracted by a person at the premises or within a radius of 25 miles of the premises; (b) any discovery of an organism at the premises likely to result in the occurrence of a specified disease being contracted by a person at the premises; (c) any injury or illness sustained by any person arising from or traceable to foreign or injurious matter in food or drink provided at the premises; (d) any accident causing defects in drains or other sanitary arrangements at the premises; Special conditions What is not covered Costs incurred in the cleaning, repair, replacement, recall or checking of property.”
“1. Loss of income We will pay the difference between the income you would have received during the indemnity period if there had been no damage and the income you actually received during that period…”
“as may be necessary to provide for the trend of the business and any other circumstances affecting the business either before or after the damage or which would have affected the business had the damage not occurred so that the adjusted figures represent as near as possible the results which would have been obtained during the relative period after the damage had the damage not occurred.”
“We will insure you for your financial losses and other items specified in the schedule, resulting solely and directly from an interruption to your activities caused by:… Non-damage denial of access an incident occurring during the period of the insurance within a one mile radius of the insured premises which results in a denial of access or hindrance in access to the insured premises, imposed by any civil or statutory authority or by order of the government or any public authority, for more than 24 consecutive hours”
“within the vicinity” and only refers to denial or hindrance in access being imposed by the police or other statutory authority. Thus it reads: “An incident during the period of insurance within the vicinity of the business premises which results in a denial of or hindrance in access to the business premises imposed by the police or other statutory authority.”
“insured damage in the vicinity of the insured premises or any fundraising event resulting in a shortfall in your expected income or gross profit for more than two consecutive days”
“In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way” was equally applicable to “an incident”
“imposed by any civil or statutory authority or by order of the government or any public authority”, as we said in relation to “imposed” in the section of the judgment dealing with Hiscox hybrid clauses, we agree with Mr Gaisman QC that both “imposed” and “by order” convey a restriction which is mandatory, not merely advisory, in other words a restriction which has the force of law. Only the restrictions imposed by the 21 and 26 March Regulations qualify. As Mr Gaisman QC pointed out, the third paragraph of the preamble to each set of Regulations refers expressly to the restrictions and requirements imposed by the Regulations: “The Secretary of State considers that the restrictions and requirements imposed by these Regulations are proportionate to what they seek to achieve, which is a public health response to that threat.”
“insured damage arising at the premises of any specified customer” “insured damage arising at the premises of any specified supplier”
“Any direct customer [supplier] of yours operating and based at the address individually stated in the Business interruption section of the schedule.”
“insured damage other than loss or damage caused by flood or earth movement, arising at the premises of any of your direct customers operating and based in the European Union (including in the United Kingdom or Gibraltar) other than any specified customer”
“We will pay you for: 1. Action of competent authorities loss resulting from interruption or interference with the business following action by the police or other competent local, civil or military authority following a danger or disturbance in the vicinity of the premises where access will be prevented provided always that there will be no liability under this additional cover for loss resulting from interruption of the business during the first 24 hours of the indemnity period. We will not pay more than£50,000 under this additional cover for a period not exceeding 12 weeks.”
“8. Prevention of access – non damage your financial losses and other items specified in the schedule, resulting solely and directly from an interruption to your business caused by an incident within a one mile radius of your premises which results in a denial of access or hindrance in access to your premises during the period of insurance, imposed by any civil or statutory authority or by order of the government or any public authority, for more than 24 hours. We will not pay under this clause more than 5% of the sum Insured or£250,000 whichever is the lesser for any one loss”
“1) Prevention of access Loss resulting from interruption of or interference with your business because of a) damage as insured by this section resulting from damage to property in the vicinity of the premises which will prevent or hinder the use of the premises or access thereto whether your property at the premises will be damaged or not; and b) action by a competent public authority following threat or risk of damage or injury in the vicinity of the premises which will prevent of [sic] hinder use of the premises or access to them whether your property will be damaged or not is included but excluding (i) the first 6 hours of any interruption or interference; or (ii) any interruption or interference with your business because of outbreaks of either foot & mouth disease or avian flu.”
“Consequential loss as a result of damage to property near the premises which prevents or hinders the use of the premises or access to them will be deemed to be damage.”
“…in his press conference Boris Johnson purported to place most citizens under virtual house arrest through the terms of a press conference and a statement on the government website said to have “immediate effect”
“following a danger or disturbance in the vicinity of the premises”
“an incident within a one mile radius of your premises.”
“following threat or risk of…injury in the vicinity of the premises”
“Cover provided by this Sub-Section is extended to include interruption or interference with the Business.”
“The actions or advice of a competent Public Authority due to an emergency likely to endanger life or property in the vicinity of the Premises which prevents or hinders the use or access to the Premises”
“Any loss a) during the first four hours b) during any period other than the actual period when access to the Premises was prevented c) as a result of labour disputes d) occurring in Northern Ireland e) as a result of the diseases specified in Extension A (a) diseases [which does not include COVID-19] Any amount in excess of£10,000 ”
“In the event of interruption or interference to the Insured’s Business as a result of:… … xii. Prevention of Access – Non Damage during the Period of Insurance where such interruption or interference is for more than eight (8) consecutive hours… within the Territorial Limits, the Insurer agrees to pay the Insured the resulting Business Interruption Loss.”
“i. the discovery of a bomb or similar suspect device or the threat, hoax or deceptive information of a bomb or similar suspect device … in the Vicinity of the Insured Locations; ii. the actions or advice of the police, other law enforcement agency… governmental authority or agency in the Vicinity of the Insured Locations; … and/or iii. the unlawful occupation of … other property in the Vicinity of the Insured Locations by any individuals … which prevents or hinders the use of or access to Insured Locations during the Period of Insurance.”
“…an area surrounding or adjacent to an Insured Location in which events that occur within such area would be reasonably expected to have an impact on an Insured or the Insured’s Business”
“the amount by which the Turnover during the Indemnity Period falls short of the Standard Turnover”. “Standard Turnover” is defined in Definition 107: “…the Turnover during that equivalent period before the date of any Covered Event which corresponds with the Indemnity Period to which adjustments have been made to take into account the trend of the Insured’s Business and for variations in or other circumstances affecting the Insured’s Business either before or after the Covered Event or which would have affected the Insured’s Business had the Covered Event not occurred so that the figures thus adjusted will represent as nearly as may be reasonably practicable the results which but for the Covered Event would have been obtained during the Indemnity Period.”
“EXTENSIONS Section B1 The Business Interruption cover is subject to the extensions shown below: Any loss as insured by this Section resulting from interruption of or interference with the Business in consequence of accidental loss destruction or damage at the under-noted situations or to property as under-noted shall be deemed to be an Incident …”
“Action of competent authorities Action by the police or other competent local, civil or military authority following a danger or disturbance in the vicinity of the premises whereby access thereto will be prevented provided there will be no liability under this section of this extension for loss resulting from interruption of the business during the first 3 hours of the indemnity period. The maximum indemnity period is 12 months.”
“Property in the vicinity of the Premises, loss or destruction of or damage to which shall prevent or hinder the use of the Premises or access thereto…”
“following a danger or disturbance in the vicinity of the Premises”
“In consideration of the Insured... paying the premium... the Insurers... agree... to indemnify the Insured: (a) under the Material Damage and Machinery Breakdown Sections against direct physical loss destruction or damage except as excluded herein to Property as defined herein such loss destruction or damage being hereafter termed Damage (b) under the Business Interruption Section against loss due to interruption or interference with the Business directly arising from Damage and as otherwise more specifically detailed herein.”
“This policy is extended to include reduction in Revenue incurred by the Insured: (a) arising out of Property in the vicinity of any location owned occupied or operated by the Insured suffering Damage or being closed (in whole or part) or deemed unusable by a competent authority and which shall consequently prevent or hinder the use of the location concerned or access thereto whether Property Insured shall be damaged or not;... This Policy extends to indemnify the Insured in respect of a reduction in Revenue resulting directly from loss destruction or damage to property or land in the vicinity of any premises owned and/or managed by the Insured and insured under this Policy.”
“In respect of definitions under 3, 4, 5 and 6 above for Gross Revenue and Standard Revenue adjustments shall be made as may be necessary to provide for the trend of the Business and for variations in or special circumstances affecting the Business either before or after the Damage or which would have affected the Business had the Damage not occurred so that the figures thus adjusted shall represent as nearly as may be reasonably practicable the results which but for the Damage would have been obtained during the relative period after the Damage.”
“The typical situation where an extension of liability may prove necessary in the interests of fairness and reasonableness, with a consequent departure from the “but for” test, is where two or more acts or events or agencies are involved and the wronged claimant is unable to prove which act, event or agency has caused the harm.”
“…Even the sophisticated variants of the “but for” test cannot be expected to set out a formula whose mechanical application will provide infallible threshold guidance on causal connection for every tort in every circumstance. In particular, the “but for” test can be over-exclusionary. 74. This may occur where more than one wrongdoer is involved. The classic example is where two persons independently search for the source of a gas leak with the aid of lighted candles. According to the simple “but for” test, neither would be liable for damage caused by the resultant explosion. In this type of case, involving multiple wrongdoers, the court may treat wrongful conduct as having sufficient causal connection with the loss for the purpose of attracting responsibility even though the simple “but for” test is not satisfied. In so deciding the court is primarily making a value judgment on responsibility. In making this judgment the court will have regard to the purpose sought to be achieved by the relevant tort, as applied to the particular circumstances.”
“Although OEH cannot point to any insurance or indeed contract case in which it has been held to be inappropriate to apply the "but for" test, it relies on the generally accepted principle that where there are two proximate causes of a loss an insured can recover on the basis that it is sufficient that one of the causes was a peril insured, provided that the other cause is not excluded – see J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The Miss Jay Jay)[1987] 1 Lloyd’s Rep 32 . Whilst to date this has been a principle applied in respect of concurrent interdependent causes, OEH submits that it should equally be applied to concurrent independent clauses [sic].”
“Nevertheless, in my judgment as a matter of principle there is considerable force in much of OEH’s argument. As a general rule the “but for” test is a necessary condition for establishing causation in fact. However, there may be cases in which fairness and reasonableness require that it should not be a necessary condition. This is most likely to be in the context of negligence or conversion claims, but I would accept that in principle it is not limited to tort or to particular torts. I would also accept that a case in which there are two concurrent independent causes of a loss, with the consequence that the application of the “but for” test would mean that there is no cause of the loss, is potentially an example of a case in which fairness and reasonableness would require that the “but for” test should not be a necessary condition of causation, particularly where two wrongdoers are involved. However, whether or not that is so will depend on all the circumstances of the particular case and ultimately the issue is whether the Tribunal erred in law in applying a “but for” causation approach under this Policy on the facts as found by them. There are a number of difficulties in so establishing.”
“Further, it is not the case that the application of the “but for” test means that there can be no recovery under either the main Insuring Clause or the POA or LOA. If, for the purpose of resisting the claim under the main Insuring Clause, Generali asserts that the loss has not been caused by the Damage to the Hotel because it would in any event have resulted from the damage to the vicinity or its consequences, it has to accept the causal effect of that damage for the POA or LOA, as indeed it has done. It cannot have it both ways. The “but for” test does not therefore have the consequence that there is no cause and no recoverable loss, but rather a different (albeit, on the facts, more limited) recoverable loss.”
“46. As to the wording of the clause, OEH submits that, even on a literal approach to the words, “had the Damage not occurred” or “but for the Damage”, on the Trends clause’s hypothesis, Hurricanes Katrina and Rita (which caused that damage) could not have occurred either. One cannot ignore the Damage and yet pretend, for the purposes of the Trends clause, that the event which caused the damage still happened. However, this does not follow. The only assumption required by the clause is that the damage has not occurred. It does not require any assumption to be made as to the causes of that damage. 47. Secondly, OEH submits that the Trends clause is dealing with the effect of real “trends, variations or special circumstances” which either did affect the business or which would have affected the business, had the damage not occurred. It is dealing with the implications of actual events, not imaginary or hypothetical ones. The only permitted counterfactual is to assume that there was no insured damage and to ask what consequences these actual trends, variations or circumstances would have had. A hypothetical Rita or Katrina (i.e. one which is assumed not to have caused damage to the hotel but which otherwise operated to its full extent), is not a “special circumstance” which would have affected the business had there been no damage but an entirely fictional event. However, the clause requires a single assumption to be made (that there was no damage), and for the actual facts to be considered on the basis of that assumption. That is what the tribunal have done.”
“Fifthly, OEH submits that Generali’s argument has the remarkable result that the more widespread the impact of a natural peril, the less cover is afforded by the business interruption policy for the consequences of damage to the insured property. So, if the tsunami or hurricane or fire only affects the insured property, this will give rise to a full, unadjusted recovery for all business interruption loss caused by the damage to the insured property; yet, should the tsunami, hurricane or fire cause additional devastation to a whole swathe of properties in the same area, the claimant is somehow to be worse off because it is to be treated as if its insured property had (hypothetically) escaped damage but as if its business would still have suffered a loss of income due to the damage (or resulting loss of attraction) in the wider area. However, under this policy the amount recoverable under the main insuring clause will always depend on the extent to which the business interruption losses claimed are caused by damage. That is what the main insuring clause requires as a matter of causation. It has nothing to do with whatever other devastation the hurricanes may have caused elsewhere than at the insured property.”
“Sixthly, OEH submits that Generali’s approach subverts first principles in that it involves seeking to strip out from the claim for business interruption loss caused by insured damage, not merely the concurrent consequences of extraneous circumstances but the concurrent consequences of the very peril that caused the damage which was a proximate cause of the business interruption loss in the first place. However, the relevant insured peril is the damage; not the cause of that damage.”
“I agree with the tribunal that the clause is concerned only with the damage, not with the causes of the damage. What is covered are business interruption losses caused by damage, not business interruption losses caused by damage or “other damage which resulted from the same cause”
“The scheme of the policy is that business interruption losses caused by damage to insured property are recoverable under the main insuring clause (as is consistent with the Trends clause). Other losses not caused by damage (i.e. physical damage to the hotel) but caused by damage to the city or lack of demand are recoverable under the Loss of Attraction and Prevention of Access extensions. That is what OEH paid premium for under the Policy and that is what the tribunal held that OEH is entitled to recover.”
“However, the relevant insured peril is the damage; not the cause of that damage.”
“Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but, subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against.”
“the but for” usually the test for “factual causation” in the law of tort to a business interruption claim … without reference to established insurance precedent such as the Leyland case.”
“1. … first of all, arguments as to the type of proof which could be sufficient to discharge a burden, and that is essentially what Mr Gaisman calls methodology; and, secondly, on the assumption that this is the best evidence available, and by “this”
“As per the ruling at the Second CMC, save where now agreed between the parties: 1. The type(s) of proof which could be sufficient to discharge the burden of proof upon insureds; and 2. On the assumption that the matters pleaded by the FCA represent the best evidence available, whether it is sufficient as a matter of principle to discharge the burden of proof.”
“If the policyholder wished to take (say)16 March 2020 as the relevant date for making a claim: in Cornwall as at16 March 2020 , there was a total of 14 cumulative Reported Cases …. The population of Cornwall based on the 2011 census was 532,273; and the population of a 25-mile Relevant Policy Area from the above postcode is approximately (based on public tools as to postcode populations) 350,000. That would amount to approximately 9-10 cases in the Relevant Policy Area.”
“The true number of individuals infected with COVID-19 on relevant dates in March 2020 in a regional, UTLA or LTLA Zone can reasonably be estimated as the number of cases derived by applying an appropriate Undercounting Ratio for the relevant regional Zone to the Reported Cases in the regional Zone (or any UTLA or LTLA Zone within the regional Zone as appropriate), and an appropriate Undercounting Ratio can properly be inferred from the Imperial Analysis, the Cambridge Analysis or another relevant publicly available analysis from a suitably qualified institution.”
“70. There is a danger of over-complicating the analysis or the terminology by straying into “legal”, “evidential”, “shifting” and “provisional” burdens of proof (see, Phipson on Evidence (16th ed.), at paras. 6-02-6-03; Cross & Tapper on Evidence (9th ed.), at pp. 106-115, esp. at p.113). That said, a consideration of and the distinction between, the nature of the burdens involved may be helpful in shedding light on this issue. Adopting the phraseology of Evans J (as he then was) in Wurttembergische v Home Ins Co [1993] 2 Re LR 253, at p. 261, it can be suggested that the concern here lies with the “evidential and therefore a shifting burden of proof”
“(VII) A postscript as to authority: If right so far as to the facts, I cannot see that there is any independent objection to the use of the models as a matter of law. For completeness, however, I ought to mention, if only in the briefest terms, some of the authority and writings to which I was referred. i) With respect, I do not think that Rhesa Shipping SA v Edmunds[1985] 1 WLR 948 (The “Popi M”) takes the matter further. It is of course right that if Equitas failed to satisfy the burden of proof resting upon it, then its claims must fail. However unattractive it may be to decide a case on the failure to discharge a burden of proof, had that been my view on the matters canvassed thus far, I would have done so. But, for the reasons already given, that is not my view. ii) The decision of Tomlinson J in “The Darya Radhe”[2009] EWHC 845 (Comm) ;[2009] 2 Lloyd’s Rep 175 is of interest with regard to its discussion of the discharge of the burden of proof. With respect, the decision in that case appears to be plainly right, involving as it did “more shippers than rats”: see, at [5]. There can be no quibble with the arbitrators’ conclusion, upheld by Tomlinson J, that the time charterers could not show which shippers were responsible for the rats in the vessel’s holds. But in the present case, as I have already concluded, the models are capable of establishing a minimum figure for the recoverable losses of each syndicate, to the requisite standard of proof. Nothing in The “Darya Radhe” precludes my conclusion as a matter of law; the facts of the two cases are simply very different. Indeed, Tomlinson J specifically left open the possibility of the use of statistical evidence to discharge the burden of proof in an appropriate case: see, at [41]. To my mind, this is such a case. …” [41]. To my mind, this is such a case. …”
“Equitas is entitled to seek to discharge the legal burden resting upon it … by the use of the best evidence it has available; should such evidence prima facie suffice to discharge that legal burden, Equitas does not need to undertake a process of regression; it would be for R&Q to mount a sufficient response which necessitates Equitas doing so. Of course, should the evidence relied upon by Equitas be incapable of satisfying the burden resting upon it (if say, actuarial modelling is incapable of sufficing for the purpose at hand) or if such evidence in fact falls short of doing so (if, for example, the models do not sufficiently approximate reality), then the Equitas claim/s must fail. The risk that Equitas runs, however, is one of fact or evidence; it does not fall foul of any rule of law.”