“Minor (sic) Corbin & King Holdings Limited, Corbin & King Restaurant Group Limited incorporating The Wolseley Restaurant Limited, The Wolseley Restaurant Property Limited, The Delaunay Restaurant limited The Delaunay Property Limited, The Colbert Restaurant Limited, Brasserie Zedel Property Limited, Brasserie Zedel limited Fischers Restaurant Limited, The Bellanger Restaurant limited (sic)…”
“(1) A person responsible for carrying on a restricted business or providing a restricted service (“P”) must not carry on that business or provide that service during the emergency period between the hours of 22:00 and 05:00, subject to paragraphs (2), (3) and (4). (2) Paragraph (1) does not prevent P selling food or drink for consumption off the premises between the hours of 22:00 and 05:00— (a) by making deliveries in response to orders received— (i) through a website, or otherwise by on-line communication; (ii) by telephone, including orders by text message; or (iii) by post; or (b) to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.”
“in a case of particular importance or urgency the trial may, at the court’s discretion, be heard by a court consisting of two Financial List judges, or a Financial List judge and a Lord or Lady Justice of Appeal.”
“the cover under this clause is a narrow, localised form of cover. The paradigm example of what it covers, as [Mr Kealey QC] submitted, is the bomb scare or gas leak in the vicinity or neighbourhood of the premises which causes the authorities (whether the police or the army in those examples), exercising statutory powers, to evacuate insured premises and require policyholders and their employees and customers not to access the premises. … it follows that, on the true construction of the AOCA clause, the government action in imposing the Regulations in response to the national pandemic cannot be said to be following a danger in the vicinity, in the sense of in the neighbourhood, of the insured premises.”
“there could only be cover if the insured could demonstrate that it was the risk of COVID-19 in the vicinity, in that sense of the neighbourhood, of the insured premises, as opposed to in the country as a whole, which led to the action of the government in imposing the Regulations. It is highly unlikely that that could be demonstrated in any particular case.”
“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 ”
“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 InsuredLocations; ii. the actions or advice of the police, other law enforcement agency… governmental authority or agency in the Vicinity of the InsuredLocations; … and/or iii. the unlawful occupation of … other property in the Vicinity of the InsuredLocations by any individuals … which prevents or hinders the use of or access to InsuredLocations during the PeriodofInsurance.”
“the requirement that the “emergency” (“danger” in the MSA 1 AOCA clause) is “in the vicinity of the Premises”
“the actions or advice of the government, taken nationally and affecting all insured businesses will inevitably be in the vicinity of the insured premises if they lead to prevention or hindrance of use or access of the insured premises. It is no answer for RSA to say that the actions or advice also affected a substantial number of other insured premises elsewhere. Nowhere in this wording is there any limitation of qualifying actions or advice of government to such actions or advice specific to the insured premises or their vicinity.”
“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.”
“Prevention of access to The Premises due to the actions or advice of a government or local authority due to an emergency which is likely to endanger life or property.”
“We shall indemnify You in respect of interruption or interference with the Business during the Indemnity Period following: a) any i. occurrence of a Notifiable Disease (as defined below) at the Premises or attributable to food or drink supplied from the Premises; ii. discovery of an organism at the Premises likely to result in the occurrence of a Notifiable Disease; iii. occurrence of a Notifiable Disease within a radius of 25 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 or advice 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 or advice of the competent local authority; or d) any occurrence of murder or suicide at the Premises. …”
“As we have found that this clause, unlike others we have considered, is drawing a distinction between the consequences of the specific cases occurring within the radius and those not doing so, because the latter would constitute separate "events", we consider that insureds would only be able to recover if they could show that the case(s) within the radius, as opposed to any elsewhere, were the cause of the business interruption. In the context of this clause, it does not appear to us that the causation requirement could be satisfied on the basis that the cases within the area were to be regarded as part of the same cause as that causing the measures elsewhere, or as one of many independent causes each of which was an effective cause, because this clause, in our view, limits cover only to the consequences of specific events.”
“We consider that the court below correctly analysed the meaning of the disease clauses in QBE 2 and QBE 3 and was wrong not to interpret the other disease clauses in a similar way. On the correct interpretation of all the relevant clauses, they cover only relevant effects of cases of Covid-19 that occur at or within a specified radius of the insured premises. They do not cover effects of cases of Covid-19 that occur outside that geographical area.”
“…there is nothing in principle or in the concept of causation which precludes an insured peril that in combination with many other similar uninsured events brings about a loss with a sufficient degree of inevitability from being regarded as a cause – indeed as a proximate cause – of the loss, even if the occurrence of the insured peril is neither necessary nor sufficient to bring about the loss by itself. It seems incontrovertible that in the examples we have given there is a causal connection between the event and the loss. Whether that causal connection is sufficient to trigger the insurer’s obligation to indemnify the policyholder depends on what has been agreed between them.”
“Prevention of access to The Premises due to the actions or advice of a government or local authority due to an emergency which is likely to endanger life or property.”
“The denial of access clause requires the insured to prove the existence of a danger or disturbance within a one mile radius and to prove a range of other matters including the taking of actions by the police or by a statutory body. In principle, I can see no reason why the clause could not be triggered by a local outbreak of a highly dangerous disease which required action to be taken by the police or by a health authority.”
“When read in context, I do not believe that the reference to “danger or disturbance” in the denial of access clause was intended to extend to a pandemic which has nationwide effects.”
“Section 2 is extended to include interruption of or interference with the Business in consequence of:…… b the closing down or sealing off of the Premises or property in the vicinity of the Premises in accordance with instructions issued by the Police or other competent local authority for reasons other than the conduct of the Insured or any director or partner of the Insured or the condition of the Premises or the carrying out of repair or maintenance work at the Premises c the actions or advice of the Police or other competent local authority due to an emergency threatening life or property in the vicinity of the premises;”
“53. … Sitting as an arbitrator, I must regard the Divisional Court’s approach to the NDDA clauses as being, at the very least, highly persuasive, in so far as it does not appear to have been questioned or challenged on appeal. On the basis that construction is a matter of law, and there is no discernible difference in wording or context, it may even, on the face of it, bind me. 54. That is subject to, first, the relevant point having been squarely argued and decided in the Divisional Court and, second, the Supreme Court’s judgment.”
“A judge of first instance is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are the decisions of the Court of Appeal, the House of Lords and the Divisional Court.”
“I must regard the Divisional Court’s approach to the NDDA clauses as being, at the very least, highly persuasive, in so far as it does not appear to have been questioned or challenged on appeal… That is subject to, first, the relevant point having been squarely argued and decided in the Divisional Court and, second, the Supreme Court’s judgment.”
“On the basis that construction is a matter of law, and there is no discernible difference in wording or context, [the judgment of the Divisional Court] may even, on the face of it, bind me.”
“Even if there were a total closure of insured premises pursuant to the Regulations, there could only be cover if the insured could demonstrate that it was the risk of COVID-19 in the vicinity, in that sense of the neighbourhood, of the insured premises, as opposed to in the country as a whole, which led to the action of the government in imposing the Regulations.”
“The action of the government, here the imposition of the regulations, was not in any sense caused by the danger of COVID-19 in the vicinity of any insured premises.”
“as Riley on Business Interruption Insurance 10th edition at §10.34 explains, these types of AOCA extensions arose out of terrorist activity in the UK in the 1980s and 1990s which involved devices that did not explode, not just those that did, so that traditional business interruption cover contingent on property damage did not respond.”
“[77] …the overriding question is how the words of the contract would be understood by a reasonable person. In the case of an insurance policy of the present kind, sold principally to SMEs, the person to whom the document should be taken to be addressed is not a pedantic lawyer who will subject the entire policy wording to a minute textual analysis (cf Jumbo King Ltd v Faithful Properties Ltd(1999) 2 HKCFAR 279 , para 59). It is an ordinary policyholder who, on entering into the contract, is taken to have read through the policy conscientiously in order to understand what cover they were getting.”
“The latter passage does not address all the conundra raised in an insurance context by the law’s familiar invocation of the “reasonable person”
“a reasonable person reading the “Murder suicide or disease cover” and the disease carve out together, would conclude (i) that the intention of the Policy of Insurance was only to provide cover in respect of the effects of disease under the “Murder suicide or disease cover” and then only in respect of a closed list, and (ii) that the disease carve out was included in the NDDA cover out of an abundance of caution to prevent it being argued the NDDA cover would respond where access was restricted or hindered because of any disease.”
“Does COVID-19 constitute a ‘danger or disturbance’ within the meaning of the denial of access clause?”
“In principle, I can see no reason why the clause could not be triggered by a local outbreak of a highly dangerous disease which required action to be taken by the police or by a health authority. A fairly obvious, if hypothetical, example, would be an outbreak of a highly dangerous and frequently deadly disease such as Ebola on the hotel premises or in nearby premises which necessitated the putting in place by the police or other authority of a cordon sanitaire preventing movement in or out of the cordoned off area.”
“(a) In the first place, the clause is concerned not with dangers or disturbances simpliciter but with dangers or disturbances at the insured’s premises or within one mile of the premises. By confining the dangers or disturbances to those which occur within a one-mile radius, the clause, appears to me to have a very similar effect to the AOCA clauses considered in the FCA case (which referred to the “vicinity” of the insured premises). As the Divisional Court observed at paras. 436 and 500 of its judgment (quoted in paras. 174 to 175 above), the reference to the “vicinity” has a local connotation and supports the conclusion that the intention of the provision is to address something that arises at a local level. The same consideration arises in the case of the one-mile radius. It, too, strongly suggests a localised form of cover. (b) Secondly, the word “danger” is used in juxtaposition with the word “disturbance”
“any other statutory body”; vii). Sub-paragraph (d) strays into the causation issue, for example in saying: “I cannot see how it could plausibly be contended that the measures taken at a national level by the Government or the Minister for Health could be said to have been proximately caused by a risk of COVID-19 within a one-mile radius of the hotel”
“… there were concurrent causes of loss, each sufficient to cause loss without the other. Furthermore, these concurrent causes arose out of the same underlying or originating cause, namely the Covid-19 pandemic. As with the Hiscox policies, on the correct interpretation of the Arch wording, such loss is in our view covered by the policy.” iii). As to RSA: “ properly interpreted, the clause covers loss caused by the two elements of the insured peril operating in the required causal sequence, but does so regardless of whether any other (uninsured but non-excluded) consequences of the same underlying fortuity (the Covid-19 pandemic) were concurrent causes of the loss.”
“It is unnecessary to address other hybrid and prevention of access clauses in relation to which, as noted earlier, this issue does not affect the outcome of the proceedings. In principle, however, a similar analysis must apply to those clauses as to the clauses which we have specifically addressed.”
“We consider that in principle the same analysis applies to the other wordings in relation to which the FCA appeals, …. It is unnecessary, however, to address this issue separately or specifically in relation to clauses where the issue is academic because the court below held that, for other reasons, the clause does not cover losses arising from the Covid-19 pandemic and there has been no challenge to that decision on this appeal. Clauses which fall in this category are: the “Non-damage denial of access” clauses in Hiscox 1, 2 and 4; the “Action of competent authorities” clauses in MSA 1 and Zurich 1 and 2; and the “Prevention of access-non-damage clause” in MSA 2.”
“this is a question of contractual interpretation which must accordingly be answered by identifying (objectively) the intended effect of the policy as applied to the relevant factual situation. …Whether the causal connection between the event and the loss is sufficient to trigger the insurer’s obligation to indemnify the policyholder depends on what has been agreed between them.”
“That there can be a joint insurance by persons having a joint interest is, of course, manifest. If A and B are joint owners of property…an undertaking to indemnify them jointly is a true contract of indemnity in respect of a joint loss which they have jointly suffered. Again, there can be no objection to combining in one insurance a number of persons having different interests in the subject-matter of the insurance, but I find myself unable to see how an insurance of that character can be called a joint insurance. In such a case the interest of each of the insured is different. The amount of his loss, if the subject-matter of the insurance is destroyed or damaged, depends on the nature of his interest, and the covenant of indemnity which the policy gives must, in such a case, necessarily operate as a covenant to indemnify in respect of each individual different loss which the various persons named may suffer. In such a case there is no joint element at all… Such a policy, in my judgment, may be more accurately described as a composite policy, because it comprises, for reasons of obvious convenience, in one piece of paper the interests of a number of persons whose connection with the subject-matter of the insurance makes it natural and reasonable that the whole matter should be dealt with in one policy.”
“In this case it seems to me clear that the interests of the individual companies within the group, whether in the property they owned, or the fidelity of the officers or servants which they employed (albeit some of those employees were employed by several companies in the group) cannot be said to be joint interests in the sense that the defalcations of such an employee in relation to one company will give rise to joint loss jointly suffered by the others.”