“Item Interest Sums Insured/ Estimated/Limits B Estimated Gross Revenue (Declaration Linked Basis) Maximum Indemnity Period: 12 months GBP 68,656,147 Estimated Gross Revenue (Declaration Linked Basis) Maximum Indemnity Period: 24 months GBP 16,466,592 Estimated Gross Revenue (Declaration Linked Basis) Maximum Indemnity Period: 36 months GBP 25,515,911”
“…any premises owned occupied or used by the Insured or where goods or records are stored or worked upon or services provided by others on behalf of the Insured anywhere in Great Britain Northern Ireland the Channel Islands or the Isle of Man including whilst in transit in Great Britain Northern Ireland the Channel Islands or the Isle of Man.”
“the period from the time the Damage occurs until the results of The Business cease to be affected by the Damage but not exceeding the Maximum Indemnity Period stated in The Specification”
“The liability of the Insurer shall not exceed in respect of Gross Profit/Gross Revenue 133.33% (one hundred and thirty three and one third per centum) of the Estimated Gross Profit/Estimated Gross Revenue stated in The Specification nor in the whole 133.33% (one hundred and thirty three and one third per cent) of the Estimated Gross Profit/Estimated Gross Revenue In the absence of written notice by the Insured or the Insurer to the contrary the Insurer’s liability shall not be reduced by the amount of any loss the Insured undertaking to pay the appropriate additional premium for such automatic reinstatement of cover”
“Notwithstanding anything contained herein to the contrary, the limit in respect of Section 2 – Particular Settlement Terms, Denial of Access:- - Proviso (i) is amended in respect of (a) to GBP 1,000,000 and a maximum indemnity period of 3 months - Proviso (ii) and (iii) are amended in respect of (b) and (c) to GBP 2,500,000 and a maximum indemnity period of 3 months.” - Proviso (i) is amended in respect of (a) to GBP 1,000,000 and a maximum indemnity period of 3 months - Proviso (ii) and (iii) are amended in respect of (b) and (c) to GBP 2,500,000 and a maximum indemnity period of 3 months.”
“… 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 … It is an ordinary policyholder who, on entering the contract, is taken to have read through the policy conscientiously in order to understand what cover they were getting.”
“…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.”
“Are the actions of the British Horseracing Authority and/or Greyhound Board of Great Britain actions of competent authorities for the purposes of the Denial of Access Cover?”
“(1) To be the governing, administrative and regulatory authority for the sport and industry of horseracing in Great Britain and to govern, regulate, promote, administer and organise horseracing in Great Britain in every way in which the Company shall think necessary and desirable.… (4) To formulate and approve and administer and co-ordinate the fixture policy for race meetings (including programme content) and the dates upon which individual racecourses may from time to time hold race meetings under the Rules of Racing and to compile and vary in accordance with the Rules of Racing (by suspension, transfer or cancellation) an annual list of such fixtures.”
“9 The BHA shall fix the dates on which all Race Meetings are to be held. 10 The BHA may: 10.1 cancel any meeting, fixture or Race; 10.2 alter the date of any meeting, fixture or Race; 10.3 supervise or make such alterations to the programme of any meeting or conditions of any Race; 10.4 order the transfer of any Race Meeting or Race to another Racecourse with or without existing engagements; or 10.5 elect to divide Races.” 10.1 cancel any meeting, fixture or Race; 10.2 alter the date of any meeting, fixture or Race; 10.3 supervise or make such alterations to the programme of any meeting or conditions of any Race; 10.4 order the transfer of any Race Meeting or Race to another Racecourse with or without existing engagements; or 10.5 elect to divide Races.”
“16. Abandoned or Delayed Racing and Other Events Affecting Racing 16.1 Race fixtures and races may be abandoned or held behind closed doors at any time by the Operator or in accordance with directions from the British Horseracing Authority and any successor body, the police or other emergency services. Fixtures and races may also be delayed, abandoned, or held behind closed doors in other circumstances beyond our reasonable control…” 16.1 Race fixtures and races may be abandoned or held behind closed doors at any time by the Operator or in accordance with directions from the British Horseracing Authority and any successor body, the police or other emergency services. Fixtures and races may also be delayed, abandoned, or held behind closed doors in other circumstances beyond our reasonable control…”
“i The GBGB may grant a licence to a person nominated by the Executive of a Racecourse, who will be known as the Authorised Representative of that Racecourse (subject to paragraph 5(ii)). The sole purpose of granting such a licence is for the conduct of greyhound racing staged through a series of race meetings.”
“the Police Authority”, “the Government” and “any local Government body”
“68. For instance, if a clause in an insurance policy covers, or excludes, the risk of damage to a number of items, it is likely that the words used denote things of the same genus (ejusdem generis), and each word can take its meaning from the words with which it is linked or surrounded (noscitur a sociis). In Watchorn v Langford (1813) 170 ER 1432, the insurance policy covered “stock in trade, household furniture, linen, wearing apparel and plate”
“Is a separate limit under the Denial of Access Cover available for each Claimant individually: (1) Per relevant measure or action; (2) Per Premises; and/or (3) Per Affected Race.”
“8A. As to issue 8(1), what were the relevant measures or actions. In particular: (1) Are the relevant measures or actions, as the Claimants say, some or all of the measures or actions identified in sections C2 to C4 and relied on in section C5 and Appendices 2 and 2B of the Amended Particulars of Claim; or (2) Are the relevant measures or actions limited, as the Defendants say, to (a) the 21 March Regulations (alternatively the Prime Minister’s announcement of20 March 2020 ); (b) the 26 March Regulations (alternatively the Prime Minister's announcement of23 March 2020 ); and (c) the 5 November Regulations?”
“Nor would I consider that an informed observer would have regarded changes which simply reduced restrictions as being separate 'single occurrences' for the purposes of the definition. They were such as would of their nature be expected to reduce losses not to lead to them and thus would not constitute the type of matter which would sensibly be regarded as a factor unifying different losses.”
“There is no provision for aggregation in this policy other than whatever can be spelled out of the simple word “loss”
“The insurance in this case is against physical loss or damage to the goods. The fact that a failure to redeliver the missing quantity may give rise to a single cause of action in conversion (if the claimant chooses to pursue a claim in that way) does not mean that there has been only one loss within the meaning of the policy. In my view each time MTI drew oil from the bulk and disposed of it without authority a loss occurred.”
“…is the actual closure of all or part of an Insured Location under relevant compulsion or instruction. On this basis, the Policy is “triggered” in respect of each such closure, and the number of “triggers” is the number of Insured Locations so closed.”
“The wording of the clause indicates that there will be a Covered Event if there is advice or actions from a relevant authority which prevents or hinders the use of or access to “Insured Locations”
“…a plurality of losses which fall to be aggregated as one [aggregated loss]. Indeed, the logic of Zurich’s argument in this respect would appear to be that there was one loss…even if there were two wholly distinct Covered Events at different shops, because the disruption to each will be reflected in the overall Reduction in Turnover of the Insured’s Business. I regard that as clearly incorrect.”
“Steps taken or advice given by government or a relevant agency which merely repeated or renewed an existing prevention or hindrance of access would, in my view, form part of one set of “actions or advice”, and thus constitute one Covered Event” (see [73]). In Greggs, he made clear that the announcement of a measure and the regulations giving effect to it will usually constitute a single “Covered Event”, being actions or advice which caused the same prevention or hindrance (see [26]). In the other related case of Various Eateries Trading Ltd v Allianz Insurance plc[2022] EWHC 2549 (Comm) , he observed (at [31]) that: “The number of Covered Events must be judged by reference to the substance, not to the form or precise mode of promulgation or communication, of the relevant actions or advice. This will be achieved by looking at the groups of regulations, guidance or rules which brought about any particular prevention of access as being one Covered Event. I would not, for example, regard as sensible an approach by which lockdown 1 was regarded as having constituted separate Covered Events in respect of closure, stay at home/work from home and social distancing.”
“I do not believe that it conforms to the parties’ intentions to have aggregation by reference to such matters, which effectively continued a status quo rather than marking any significant change to it. Nor would I consider that an informed observer would have regarded changes which simply reduced restrictions as being separate “single occurrences” for the purposes of the definition. They were such as would of their nature be expected to reduce losses not to lead to them and thus would not constitute the type of matter which would sensibly be regarded as a factor unifying different losses.”
“…. the limit of£500,000 applied separately to each claim and that each closure of premises was a separate claim. To take as an example a policyholder with a theatre in Manchester and another in Oxford, the ability to claim for the closure of the Manchester theatre would depend upon proof of a relevant incident within the one-mile radius of that theatre, while the ability to claim for the closure of the Oxford theatre would likewise depend upon proof of a relevant incident within the one-mile radius of that theatre. That would be so regardless of whether the incidents in question were different in character (for example, an outbreak of Legionnaires’ disease in Manchester and a student riot in Oxford) or the same (two cases of Covid-19, one in Manchester and one in Oxford, each of which, adopting the analysis of the Supreme Court in FCA v Arch, was a separate incident). There was nothing in the clause to indicate that the limit of£500,000 was intended to operate on a per-insured basis.”
“An “individual loss” first occurs when a covered peril strikes or affects insured premises or property and, when the covered peril which strikes the premises is the loss of the ability to use them (whether through damage to other property or premises or through a closure order as in the present instance) the individual loss occurs at the same point. It is immaterial for these purposes how the property or premises are affected and by what type of peril. The undisputed expert evidence was that market practice was and is to treat damage BI loss as occurring simultaneously with property damage and, like the judge at para 148(ii) I can see no basis for treating non-damage BI losses differently from damage BI losses… 147. In other words, in all these cases, an “individual loss” only occurs once for the purposes of the Hours Clause, irrespective of how long the financial loss suffered continues for. It encompasses the entirety of the loss sustained by the original insured as a result of the relevant catastrophe striking or affecting the premises, irrespective of whether the relevant “individual loss” comprises physical damage losses, BI losses or both.”
“…the interference with the business of each nursery which occurred on closure on20 March 2020 was functionally equivalent to each nursery suffering physical damage on that day. The relevant “individual loss” occurred on that day and not day by day for every day that the business interruption continued. The answer to the example which Unipol posited of the vacationing business proprietors who did not suffer immediate interference and only suffered an individual loss when they would have reopened but for the closure order, was the one which Covéa gave: the business would still only suffer a single individual loss on that later date rather than on a day-by-day basis.”
“So far as the policy was concerned, therefore, it was a matter of happenstance whether any particular subsidiary owned or operated more than one venue. To interpret the policy limit as applying separately to each policyholder rather than to each premises, when there is no clear wording to show that this was intended, would therefore be somewhat capricious”
“If any difference shall arise as to the amount to be paid under this Certificate (liability being otherwise admitted) such difference shall be referred to an arbitrator to be appointed by the parties in accordance with the statutory provisions in that behalf for the time being in force. Where any difference is by this condition to be referred to arbitration the making of an award shall be a condition precedent to any right of action against the Insurer.”
“In the circumstances of this case, does the Arbitration Agreement apply to the determination of the quantum of the Claimants’ claims (i.e., the issues in section C6 below) once issues of liability, construction and/or law are resolved?”
“It seems to me that the word ‘otherwise’ is apt to emphasize the fact that it is ‘mere’ disputes as to quantum which are to be arbitrated, thus excluding disputes as to amount which, despite prima facie acceptance of liability, depend upon the application of particular provisos or exemptions in the policy which place limitations on categories of loss, or otherwise apply to limit the amount recoverable. Such cases would raise a question of liability in the sense and to the extent that they involve a point of law or construction rather than a mere dispute on quantum.”
“The aim of the clause, as is apparent from its wording, is to refer to arbitration disputes as to quantum or assessment of loss but where there is, or is also, a dispute as to the liability of the insurer based upon the terms of the policy there is no agreement to arbitrate.”
“…the concept that the English court had jurisdiction when the proceedings were issued, but that was only “floating” and was lost in favour of California when the option was exercised, is heretical and contrary to authority. As Phillips LJ pointed out several times in argument, the jurisdiction of the English court is determined at the date of issue of proceedings: see Phillips LJ’s own judgment in CA Indosuez (Switzerland) SA v Afriquia Gaz SA[2023] EWCA Civ 1072 ;[2024] KB 243 at [83]-[84] which in turn referred to the decision of the House of Lords in Canada Trust v Stolzenberg (No. 2)[2002] 1 AC 1 .”
“12. Have the Claimants suffered Reduction in Gross Turnover and, if so, in what amounts? PoC paras 36-37; ADef para 25.1 13. Have the Claimants suffered ICW and/or AICW and, if so, in what amounts? PoC para 8; ADef paras 25.1-25.2 14. Have the Claimants incurred CPC and, if so, in what amounts? PoC para 39”