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

Following the FCA test case (FCA v Arch [2020] EWHC Comm 2448, [2021] UKSC 1) 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 ten 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 (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. 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 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 case of Smart Medical Clinics Ltd v Chubb European Group, CL-2021-000472 (solicitors Freeths for the Claimant and Clyde & Co for the Defendant) has settled.

In the further case of Lumi Power Yoga Ltd v Covea, CL-2021-000727 (solicitors Fletcher Day for the Claimant, DAC Beachcroft for the Defendant) a trial of preliminary issues has been ordered and a hearing date listed for November 2022. The preliminary issues are: (i) as to what is meant by ‘the occurrence at the premises of any outbreak of human or infectious disease’; (ii) what was the contractually agreed test of causation; and (iii) how the indemnity period is to be calculated.

The case of Altrincham Association Football Club v AXA, CL-2021-000733 (solicitors Fletcher Day for the Claimant, DAC Beachcroft for the Defendant) involves some of the same issues. Directions have been given for a trial to commence not before 27 February 2023.

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.

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.