The Financial Conduct Authority (FCA) business interruption insurance (BII) test case was hoped to provide finality and clarity as far as coverage was concerned during the COVID-19 lockdowns. However, if anything, the landmark proceedings now appear to have just been the beginning.
“Following the FCA test case, the Court is seeking to monitor other COVID-19 business interruption cases under a sub-list directed by Butcher J (with Cockerill J’s support),” the Commercial Court previously noted.
Among the cases previously being managed as part of the list was Parkdean Resorts v AXIS, which has settled. According to the Court, it will not ordinarily publish commencement or progress details until there has been a public hearing in each case.
It stated: “In Corbin & King v Axa, CL-2021-000235 (solicitors Edwin Coe LLP for the claimants, DAC Beachcroft for the defendant), an expedited trial took place at the end of January 2022. The main issues included how a non-damage denial of access cover is to be given effect to in light of the decision of the Supreme Court in the FCA test case. Judgment was handed down on February 25, 2022. Permission to appeal to the Court of Appeal was granted but no appeal will be pursued.
“Three further cases, each arising out of the use of the Marsh Resilience wording, raise at least some of the same issues, and while not being consolidated or heard together, are being managed in a coordinated way. In one of those cases, Stonegate Pub Company v MS Amlin, CL-2021-000161 (solicitors Fenchurch Law for the claimants and DAC Beachcroft for the defendants) directions have been given for an expedited trial of certain issues to commence in June 2022.”
Meanwhile, Insurance Business understands that three other cases are slated for next month.
“In Greggs Plc v Zurich Insurance Plc, CL-2021-000622 (solicitors CRS for the claimant and Clyde & Co for the defendant), a trial of preliminary issues will take place in the first week of July 2022,” said the Commercial Court. “In Various Eateries Trading Ltd v Allianz, CL-2021-000396 (solicitors Mishcon de Reya for the claimant and DAC Beachcroft for the defendant), a trial of preliminary issues will take place in the second week of July 2022. Each will be heard by the same judge.
“A main issue in each is as to aggregation, and whether the losses claimed constituted a single business interruption loss, or how many business interruption losses there were. Another main issue in Stonegate v Amlin is as to whether a sub-limit in respect of additional increased cost of working applies in the aggregate or to each single business interruption loss.”
The Court continued: “In a further case, Smart Medical Clinics Ltd v Chubb European Group, CL-2021-000472 (solicitors Freeths for the claimant and Clyde & Co for the defendant) a costs and case management conference was heard in January 2022, and directions have been given for a trial of issues other than quantum.” According to law firm Womble Bond Dickinson, the stage one trial for the Chubb case is listed for July 11.