Active Case Management
All trials and interlocutory applications are heard by a High Court Judge or Deputy High Court judge designated to the Court on the basis of their expertise. There remains a strong emphasis on active judicial case management, with Commercial Court judges presiding over all aspects of the dispute from the initial establishment of the court’s jurisdiction through to post-trial issues. An example of the Court’s pro-active approach to case management can be seen in its approach to test and grouped cases – most recently in relation to COVID cases (see below).
Urgent Interim Relief
The Commercial Court has played a central role in the development of urgent interim relief in commercial proceedings, principally ‘freezing’ injunctions (to prevent the dissipation of assets prior to judgment or prior to the enforcement of a judgment) and anti-suit injunctions (to stop a party taking steps to pursue proceedings in another jurisdiction in breach of contract). Both forms of relief have been developed in cases before the Commercial Court.
The possibility of seeking urgent relief in aid of a pending claim contributes to the popularity of the Commercial Court as a forum for commercial litigants. Commercial Court judges are able to hear urgent applications for interim relief at short notice and, where appropriate, grant such injunctive relief. The Commercial Court Guide (PDF) has a specific section (F.14) setting out detailed guidance about such applications.
Shorter and Flexible Trials and Expedition
The Commercial Court seeks to adapt itself to the needs of its users and understands that faster resolution is often desired by litigants. To that end, it has a Shorter Trials Scheme and a Flexible Trials Scheme (external link) that are designed to allow trials to be heard more quickly and in a manner that is appropriate for the specific case at hand.
The Shorter Trials Scheme is in place for cases which can be heard in no more than four court days and is intended to determine disputes within a year of issue of the claim.
The Flexible Trials Scheme is intended to allow parties to adapt trial procedure to suit the case at hand. For example, parties might agree that certain issues do not require oral evidence. This can shorten the time frame to final determination.
In addition to these dedicated schemes, court users can apply to seek expedition of their case if they consider this necessary. The basis upon which requests for expedition are considered is explained in detail in the Commercial Court Guide (PDF) at F3.2 and J1.3.
Test and grouped cases (including COVID-19 BII cases)
The Commercial Court seeks to actively manage suitable sets of cases either via a test case or a sub-list of cases where linked cases can be managed together. Input from parties who consider that they have a case suitable for such treatment is welcomed.
COVID-19 BII cases
Solicitor details are given below for live cases to enable parties with a potential linked case to contact those involved in current cases with the same issues.
Following the FCA test case (FCA v Arch [2020] EWHC Comm 2448, [2021] UKSC 1 (external link) the Court is seeking to monitor other COVID-19 Business Interruption cases under a sub-list directed from 11 May 2023 by Jacobs J.
It is currently aware of a number of live cases in that category. The Court will not ordinarily publish details of the commencement or progress of such cases until there has been a public hearing in each case. Where cases have settled without a significant court judgment, details are not given here.
Corbin & King
In Corbin & King v Axa, CL-2021-000235 (external link) (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 25 February 2022 ([2022] EWHC 409 (Comm)). Permission to appeal to the Court of Appeal was granted but no appeal was pursued.
Stonegate / Various Eateries
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. A trial of preliminary issues in each of those cases, Stonegate Pub Company v MS Amlin, CL-2021-000161 (solicitors Fenchurch Law for the Claimants and DAC Beachcroft for the Defendants), Greggs PLC v Zurich Insurance PLC, CL-2021-000622 (solicitors CRS for the Claimant and Clyde & Co for the Defendant), and Various Eateries Trading Ltd v Allianz, CL-2021-000396 (solicitors Mishcon de Reya for the Claimant and DAC Beachcroft for the Defendant) took place before Butcher J in June/July 2022. A main issue in each was 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 was 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. Judgment was given in all three cases on 17 October 2022 ([2022] EWHC 2545, 2548 and 2549 (Comm)). Permission to appeal was granted in relation to certain of the issues decided. The appeals in Greggs and Stonegate did not proceed. The Court of Appeal gave judgment on the appeal in Various Eateries in January 2024: [2024] EWCA Civ 10 (external link).
London International Exhibition Centre
A CMC took place on 6 December 2022 in London International Exhibition Centre PLC v Royal & Sun Alliance PLC, CL-2022-000528 (solicitors Stewarts Law LLP for Claimant, Keoghs LLP and Clyde & Co LLP for the Defendants). Pursuant to earlier directions, potentially interested parties in other cases participated in the CMC. A hearing of preliminary issues in 6 cases took place in late April to early May 2023. The principal issue concerned causation in the context of ‘at the premises’ cover. Other issues were: whether it was necessary for Covid-19 to have been designated as a “notifiable disease” at the time when there was an occurrence “at the premises”; the effect of wording which referred to closure of a business on the advice or with the approval of the “Medical Officer of Health for the Public Authority”; and wording which referred to disease being “suffered” at the premises. Judgment was given on 16 June 2023: [2023] EWHC 1481 (Comm) (external link). Permission to appeal was granted by the Judge and the appeal will be held in June 2024.
London Exhibition Centre was the lead case, and the other cases within the April/May 2023 hearing were as follows:
PizzaExpress Group and others v Liberty Mutual Insurance Europe SE and anr: CL-2022-000400 (solicitors Dechert LLP for Claimants, DAC Beachcroft LLP for Defendants).
Kaizen Cuisine Ltd and others v HDI Global SE-UK and anr: CL-2022-000375 (solicitors Barings Law for Claimants, Clyde & Co LLP for Defendants).
Hairlab and others v Ageas Insurance Ltd; CL-2022-000433 (solicitors Barings Law for Claimants, Keoghs LLP for Defendant).
Mayfair Banqueting Ltd v Axa Insurance UK Plc; CL-2021-000737 (solicitors Fletcher Day for Claimant, DAC Beachcroft LLP for Defendant). A CMC had previously been held in this case, and the trial of the remaining issues (other than the preliminary issues) remains fixed for December 2023.
Why Not Bar and Lounge Ltd v Zenith Insurance Plc and another; CL-2022-000593 (solicitors Hugh James for Claimant, DWF LLP for Defendants).
A CMC took place in the London International Exhibition Centre case (alone) on 13 October 2023 and directions were given for the trial of remaining issues. The trial has been fixed for October 2024.
Gatwick Investment and others
A CMC took place on 16 December 2022 in Gatwick Investment Ltd T/A Crowne Plaza London Gatwick Airport and others v Liberty Mutual Insurance Europe SE, CL-2022-000360 (solicitors Edwin Coe LLP for Claimant, and DAC Beachcroft for the Defendants). The case raises issues concerning Denial of Access (Non Damage) cover. Some of those issues are materially identical to issues addressed in Corbin & King Ltd and others v Axa Insurance UK Plc (which Liberty Mutual says was wrongly decided). Another issue concerns credit for furlough payments, similar to that considered in Stonegate v Amlin.
A hearing took place in October/November 2023 in order to decide liability issues in Gatwick, together with issues of law (relevant to quantum) concerning policy limits and credit for furlough payments. The hearing encompassed similar issues in other cases referred to below. Gatwick is the lead case at the October 2023 hearing, and other cases, where issues were determined, were:
Liberty Retail Ltd and others v Liberty Mutual Insurance Europe SE and another; CL-2022-000638 (solicitors Stewarts Law LLP for Claimants, DAC Beachcroft LLP for Liberty Mutual);
Hollywood Bowl Group Plc v Liberty Mutual Insurance Europe SE; CL-2022-000640 (solicitors Fenchurch Law for Claimant, DAC Beachcroft LLP for Defendant);
Fuller Smith & Turner PLC v Liberty Mutual Europe SE and anr; CL-2023-000049 (solicitors Edwin Coe LLP for the Claimant, DAC Beachcroft LLP for the 1st Defendant, HFW LLP for the 2nd Defendant)
International Entertainment Holdings Ltd v Allianz Insurance Plc; CL-2022-000687 (solicitors Fenchurch Law (UK) Limited for the Claimants and DAC Beachcroft LLP for the Defendant)
Starboard Hotels Ltd and others v Liberty Mutual Europe SE; CL-2023-000047 (solicitors Edwin Coe LLP for the Claimant and DAC Beachcroft LLP for the Defendant)
Bath Racecourse Company Limited and others v Liberty Mutual Insurance Europe SE and others; CL-2023-000064 (solicitors Stewarts Law LLP for the Claimants, DAC Beachcroft LLP for the 1st and 2nd Defendants, HFW LLP for the 2nd Defendant)
Judgment was given on 26 January 2024 [2024] EWHC 124 (Comm) (external link).
Permission to appeal was granted by the Judge in relation to some issues, including causation and furlough. The Court of Appeal has subsequently granted the insurers permission to appeal in relation to issues concerning (i) limits in the context of composite policies, (ii) the limit in “Denial of Access” amendment in the Bath Racecourse policy and (iii) claims preparation costs. Permission to the insurers was refused in relation to “statutory authority”. The policyholders’ application for permission to appeal in relation to policy limits and the effect of the July regulations was also refused.
There will be 3 appeal hearings: (1) furlough; (2) other issues in Gatwick/Starboard/Hollywood Bowl/Liberty Retail/Bath Racecourse; (3) International Entertainment Holdings. The appeals will not be heard at the same time as the June 2024 appeal in London International Exhibition Centre.
Pizza Express
A further preliminary issue, concerning the applicability of “one occurrence” policy limits to the sub-limits in the policy, was heard in PizzaExpress on 19 May 2023. Judgment was given on 26 May 2023: [2023] EWHC 1269 (Comm) (external link). Permission to appeal was refused by the Court of Appeal. The case subsequently settled.
Oaxaca / Flat Iron
A CMC took place on 11 October 2023 in Oaxaca Limited trading as Wahaca v. QIC Europe Limited; CL-2023-000284 and Flat Iron Steak Limited v QIC Europe Ltd; CL-2023-000349. The hearing was also attended by the intended Claimant in The Fulham Shore Limited v QIC Europe Limited. The Oaxaca and Flat Iron cases raise a number of similar issues on the policy wording of QIC, as well as quantum issues. Some liability issues were the subject of a summary judgment and interim payment application by Oaxaca heard in February 2024: [2024] EWHC 394 (Comm) (Cockerill J). Summary judgment was granted in relation to certain construction issues, and permission to appeal on those issues was also granted. The application for an interim payment failed. Directions have also been given for the trial of the remaining issues including quantum.
Arsenal Football Club and others
A CMC took place on 12 October 2023. The case is brought by a number of Premier League football clubs and raises a variety of issues, including policy limits. Directions were given for the trial of liability issues and this will to take place in January/February 2025.
Alison Toulson (trading as Kaleidoscope) and 90 other claimants v American International Group UK Ltd
A CMC took place in April 2024 in CL-2023-000649 (solicitors Barings Law for the Claimant and Kennedy’s Law LLP for the Defendant). The proceedings are brought collectively by a large number of small business owners on policy wording emanating from a broker, Morgan Richardson. The court understands that there are another approximately 50 policyholders (represented by solicitors RLK and Hugh James) who have policies issued by the same insurer (AIG) with similar wordings.
By agreement in the Alison Toulson case, the court ordered a 2-day hearing of preliminary issues of policy construction. This will take place in December 2024. The issues include: (i) whether the words “action by the Police or local, civil or military authority” in the cover encompass action by the UK, Scotland, Welsh and Northern Irish Governments; (ii) whether the words “danger or disturbance in the vicinity of the Premises” in the cover encompass the risk of COVID-19 occurring within the vicinity of the relevant Premises; and (iii) what is the significance of the references to “Bomb Hoax” and “Bomb scare” in the cover.
Midlands Components Ltd v QBE UK Ltd
A CMC took place in May 2024 in CL-2023-000070 (solicitors Barings Law for the Claimant and Clyde and Co LLP for the Defendant), and directions were given for trial. The case raises a question of causation where there is more than one loss during the period of insurance. The Defendant insurer contends that the policy may respond to more than one occurrence of loss during the period of insurance, provided that each such occurrence of loss was the identifiable effect of at least one manifestation of COVID-19 within 25 miles of the insured premises and where that effect was separate and distinguishable from the effect of other manifestations of COVID-19 within 25 miles of the insured premises that had already given rise to an insured loss under the policy.
Simpsons (Preston)
A case involving a business interruption cover under a Motor Trade Policy (Simpsons (Preston) Ltd v MS Amlin, CC-2021-MAN-000079; Brabners LLP for the Claimants and DAC Beachcroft for the Defendant) has been commenced in the Manchester CCC. It will be managed there, but in conjunction with this COVID-19 Business Interruption sub-list. A trial has been fixed for June 2024.
Other COVID-related cases
The following further judgments have been given in 2024 in Covid-19 related cases: Unipolsai Assicurazione SpA v Covea Insurance Plc [2024] EWHC 253 (Comm) (Foxton J) (reinsurance arbitration appeals); and Bellini (N/E) Ltd v Brit UW Ltd [2024] EWCA Civ 435 (policy provided no cover for Covid in the absence of physical damage to property).
The Court has managed, as part of the COVID-19 sub-list a further insurance (though not BII) case, namely World Challenge Expeditions v Zurich, CL-2021-000322 (solicitors Fenchurch Law for the Claimant and Clyde & Co for the Defendant). The insurance at issue is a Corporate Personal Accident and Business Travel insurance and involves a claim in respect of the refund of deposits by the Claimant to customers who cancelled trips due to the pandemic. Issues include the construction of the insuring clause, as to whether there are relevant estoppels, and as to the application of an Event Limit clause. Judgment was given by Dias J in July 2023 [2023] EWHC 1696 (Comm).
The Court encourages parties to other cases involving COVID-related issues (including s. 13A Insurance Act) to identify them to Commercial Court Listing, for the Court to consider whether any further coordinated case management is appropriate.