London International Exhibition Centre Plc v Allianz Insurance Plc & Ors

For business interruption cover requiring an occurrence, manifestation or suffering of a notifiable disease at insured premises, the parties may agree a causal test which does not require proof of but-for causation. Where the disease is capable of rapid and widespread transmission, the occurrence at the premises need only be one of multiple causes of closure, restrictions or resulting loss. The relevant authority need not have known of that particular occurrence or acted specifically upon it. An unqualified reference to a Public Authority may include national bodies, and Medical Officer of Health may include national medical advisers. A disease must be notifiable when it occurs at the premises. Suffering a disease does not require symptoms. All appeals and cross-appeals were dismissed.

These conjoined appeals arose from preliminary issue decisions in six expedited Covid-19 business interruption test cases. Jacobs J decided the preliminary issues in the Commercial Court: [2023] EWHC 1481 (Comm). The policies covered disease occurring, manifesting or being suffered at the insured premises. Several contained hybrid clauses requiring closure or restrictions, while the Hairlab policy contained pure disease cover.

The appeals concerned causation, whether the relevant authority needed knowledge of the disease at the premises, the meaning of Public Authority and Medical Officer of Health, the time at which Covid-19 had to be notifiable, and the meaning of disease suffered by a visitor or employee. The central question was whether the concurrent-causation reasoning in Financial Conduct Authority v Arch Insurance (UK) Ltd applied to at-the-premises clauses.

Disposition. All appeals and cross-appeals were dismissed.

1. Causation. The court began with the language, context and presumed common intentions under the policies, while treating the general causation principles stated in Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1 as authoritative. The relevant causal link is determined by construction of the policy. A conventional but-for test is not required where the wording and nature of the insured peril indicate otherwise.
2. Notifiable diseases are capable of rapid and widespread transmission. The parties must therefore have contemplated that restrictions would commonly respond to an outbreak as a whole, rather than only to disease at the particular premises. Under an at-the-premises clause, an occurrence at the premises is sufficient if it is one of multiple causes of closure or restrictions, or of the loss under pure disease cover. It need not be a necessary, sufficient or distinct effective cause. The authority need not have known of the specific occurrence or premises. The government response could properly be treated as a response to all cases, whether known or unknown.
3. Public Authority and Medical Officer of Health. In the Kaizen and Why Not policies, Public Authority was not confined to local authorities. It included national government and other public bodies. Medical Officer of Health was not a defined term and could not be restricted by historical functions of abolished local posts. Properly construed, it included the Chief Medical Officer, Deputy Chief Medical Officer and other medical officers advising public bodies. The reference contemplated advice or approval from someone with sufficient medical understanding of the disease, whether or not formally medically qualified.
4. Notifiability. Under the Hairlab pure disease clause and the first stage of the Kaizen hybrid clause, the disease had to be notifiable when it occurred at the premises. A person present before Covid-19 became notifiable could not establish the insured peril. The notification provisions did not alter that conclusion.
5. Mayfair. Suffered meant having the disease and did not require symptoms, manifestation or subjective discomfort. Restricting the covered person to a visitor or employee did not alter the concurrent-causation analysis. One qualifying occurrence could contribute to the national restrictions.

• Court of Appeal (Civil Division): appeals and cross-appeals dismissed; [2024] EWCA Civ 1026.
• High Court, Commercial Court: Jacobs J determined preliminary issues in the expedited test cases; [2023] EWHC 1481 (Comm).