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 by Butcher J (with Cockerill J’s support).

It is currently aware of eleven 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.

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 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. 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 has been granted in relation to certain of the issues decided.

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 a number of cases will take place in the period 24 April to 7 May 2023. Those issues concern causation in the context of ‘at the premises’ cover. (For further details, see [2022] EWHC 3235 (Comm)). London Exhibition Centre is the lead case, and the other cases within the April/May 2023 hearing are 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, Leoghs 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 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 five-day hearing will take place in October 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 5 days will also encompass similar issues in other cases. A further ½ day case management conference in Gatwick (together with the Liberty Retail, Hollywood Bowl and PizzaExpress cases referred to below) will take place on 16 February 2022, at which the question of integrating issues in other cases into the October 2023 hearing will be addressed.

It is anticipated that Gatwick will be the lead case at the October 2023 hearing, and other cases which may be integrated are:

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);

PizzaExpress Group Ltd and others v Liberty Mutual Europe SE and another (see above)

The court will consider whether and how to integrate issues in these, or other, cases into the October 2023 hearing. Potentially interested parties to other proceedings may therefore attend the CMC on 17 February 2023. The parties in the Gatwick case have also been directed to notify other potentially interested parties of the 17 February 2023 CMC.

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 September 2023.

Other COVID-related cases

The Court is also managing, 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). A CMC was heard in this case at the end of January 2022. 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. Directions have been given for a trial not before early 2023.

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.

Italian Swaps cases

The Court is currently jointly case managing a number of cases dealing with swaps transactions entered into by an Italian region. There are other cases involving other regions and communes which raise similar issues. The Court is keen to ensure that such cases are identified to ensure the most efficient case management of this cohort of cases. A lead case determining a number of important issues was the subject of a judgment in Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm). A further judgment was handed down in Banca Intesa Sanpaolo SPA and Dexia Crediop SA v Comune Di Venezia [2022] EWHC 2586.

Russian Aircraft Leasing Claims

A number of actions have been begun in the Commercial Court involving claims on insurance policies brought by lessors of aircraft (and/or aircraft equipment, such as engines) in respect of the alleged loss of assets leased to Russian airlines since the Russian invasion of Ukraine earlier this year. A CMC in one such action has been fixed for March 2023. It appears likely that other such actions may soon be, but have not yet been, commenced. Mr Justice Butcher is the assigned judge for these cases. The Court wishes to understand the potential number of actions which may be involved; what, in broad terms, may be the issues; and whether there are any case management steps which should be taken in the light of the answers to those questions. To that end, the Court would be grateful if any persons or entities who are interested in participating in this process should make themselves, and the nature of their interest, known to the Commercial Court (comct.listing@justice.gov.uk) by 16 December 2022.