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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 five live cases in that category. Several of these cases are at an early stage. The court will not publish details of the commencement or progress of such cases until there has been a public hearing in each case.

Two of the cases, CL-2020-000469, Parkdean Resorts v Axis (solicitors Taylor Wessing LLP for the Claimants and Clyde & Co for the Defendant) and CL-2021-000235 Corbin & King v Axa (solicitors Edwin Coe LLP for the Claimants, DAC Beachcroft for the Defendant), have progressed as far as a CMC.

In Parkdean Resorts v Axis, directions have been given leading up to a trial not before June 2022.  The issues in the case include questions as to the recoverability of what are called ‘tail losses’, ie losses which may be after the end of the period of interruption but said to be caused by the legacy of a prevention of access, and as to the treatment of so called ‘tail gains’, including in relation to increased demand and the VAT reduction initiative. There are also issues concerning a claim pursuant to s. 13A Insurance Act 2015.

In Corbin & King v Axa, directions have been given in relation to the claim. An order for expedition has not been granted, but the parties have been given leave, if appropriate, to canvass the position of other insureds and insurers and address further arguments as to whether this constitutes a suitable and useful ‘test case’. The main issues include 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.

The Court is also aware that in other cases there are issues as to aggregation of COVID-19 BI losses, and the application of policy limits on Business Interruption losses.

Other COVID-related cases

The Court has not hitherto been seeking to monitor in the same way cases involving COVID effects in the context of other insurances or other commercial contracts, though it is aware of a limited number of such cases. The Court is interested in users’ views as to whether it would be practicable and useful to seek to do so, and what further COVID-related cases are anticipated.

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.