Dealing with the disputes of today and tomorrow

The Commercial Court continues to be at the forefront of developing commercial litigation. At the moment it frequently deals with disputes arising from such subjects as digital commerce and the COVID-19 pandemic.

Digital Commerce

The Court frequently engages with issues arising from digital commerce, including Smart Contracts and digital assets or currency and transactions involving NFTs (Non Fungible Tokens). The Court has addressed:

Test and grouped case (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 seven live cases in that category.  The court will not 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 (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 is not being 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.  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.  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 principal  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 principal issue in Stonegate v Amlin is  whether a sub-limit in respect of Additional Increased Cost of Working applies in the aggregate or to each Single Business Interruption Loss.

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 CCMC was heard in January 2022, and directions have been given for a trial of issues other than quantum.  The main issues include the extent to which access to the Claimant’s premises was restricted, whether members of the Claimant’s staff contracted COVID-19 at the Claimant’s premises, whether COVID-19 was a notifiable disease as defined in the policy, and whether for there to be cover under a ‘Restrictions on the use of the Premises’ clause discovery of the causative agent had to take place at the Premises.

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 four linked 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).