Summary
In Covid-19 business interruption insurance claims, regulations made by central government under statutory powers constituted action by a “Statutory Authority”. A policy reference to “Limit” meant the defined “Limit of Indemnity”, ordinarily applying to any loss or series of losses arising from one occurrence rather than as an annual aggregate.
In a composite policy, the limit applied separately to each insured where the wording and separate insured interests supported that construction. Claims preparation costs could be recoverable separately where the policy imposed no applicable limit. Coronavirus Job Retention Scheme payments reduced relevant business costs and had to be credited under savings clauses where they were sufficiently connected with the insured composite peril.
A clause covering prevention by a “policing authority” required intervention by the police or a similar enforcing body, not merely compliance with government regulations.
Factual background
The judgment determined preliminary issues arising in seven related Commercial Court claims for business interruption insurance losses allegedly caused by Covid-19 restrictions. The claims concerned hotels, leisure venues, licensed premises, retail businesses, racecourses and entertainment venues.
The issues included whether government regulations constituted action by a statutory authority; whether replacement regulations created new restrictions; the construction and operation of policy limits in composite policies; departmental clauses, additional increased costs of working and claims preparation costs; credit for payments under the Coronavirus Job Retention Scheme; and the meaning of “incident” and “policing authority” in an Allianz denial-of-access clause.
Held
The court held that the Covid-19 restrictions relied upon by the Gatwick, Hollywood Bowl, Fullers and Starboard claimants resulted from action by a “Statutory Authority”. The expression covered an authority exercising powers derived from statute or statutory instrument. It was not confined to bodies created by statute or to local bodies similar to the police. The alternative “Police” limb did not apply because the police had not themselves forced the businesses to close.
The July 2020 regulations did not create new restrictions for Hollywood Bowl. There was a continuum of closure because its premises remained prohibited from opening.
Under the Liberty Mutual wordings, “Limit” in the schedule meant the defined “Limit of Indemnity”. The relevant limit was therefore the amount applicable to any loss or series of losses arising from any one occurrence. The policy did not impose an additional annual aggregate limit. The number of occurrences was reserved.
In a composite policy, the limit applied separately to each named insured where the insured interests were separate and the wording did not indicate a shared limit. This applied to Starboard, Liberty Retail and Bath Racecourse. The same reasoning supported a £2.5 million limit for each Bath Racecourse claimant under the amended denial-of-access clause.
The departmental clause concerned the calculation of gross profit. It did not create separate policy limits. It did not apply to businesses insured on a gross revenue basis, and separate hotels, pubs or bowling alleys were not ordinarily “departments”.
Liberty Retail could recover claims preparation costs under the general claims preparation clause. Because no applicable Section 2 limit was stated, the clause imposed no monetary limit, although prior consent remained necessary. Bath Racecourse claims preparation costs were separately limited to £50,000 for any one claim or series of claims arising from a single occurrence. Its additional increased cost of working cover did not increase the £2.5 million denial-of-access limit.
The court followed Stonegate on the effect of savings clauses. CJRS payments reduced the relevant employment costs. Causation was assessed by reference to the composite insured peril, not merely the criteria for receiving CJRS payments. The scheme was introduced as part of measures responding to the restrictions and the pandemic, so the payments were sufficiently and proximately connected with the insured peril.
Under clause S/30/1, a Covid-19 case was likely to endanger human life but was not, without more, an “incident”. The incident had to occur within one mile of the premises. “Policing authority” meant the police or a similar body whose function was to ensure that the law was obeyed and enforced. It did not include central government or the Secretary of State, and the prevention or hindrance had to be caused by that policing authority itself.
For the Allianz policy, the £500,000 limit applied per premises rather than per insured claimant. The words “in the aggregate during any one Period of Insurance” did not justify correcting the clause by adding “and” or otherwise converting it into an aggregate limit.
The court’s approach to earlier authorities
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Appeal route
- This judgment [2024] EWHC 124 (Comm) High Court (King's Bench Division)
- Appealed to[2025] EWCA Civ 153Outcomeappeals dismissed
- Appealed to[2026] UKSC 14Outcomeappeals dismissed unanimously
Key cases cited
16 authorities cited.
- The Financial Conduct Authority v Arch Insurance (UK) Ltd and others [2021] UKSC 1
- In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
- Various Eateries Trading Limited v Allianz Insurance Plc [2024] EWCA Civ 10
- Al Mana Lifestyle Trading LLC & Ors v United Fidelity Insurance Company PSC & Ors [2023] EWCA Civ 61
- PizzaExpress Group Limited & Ors. v Liberty Mutual Insurance Europe SE & Anor. [2023] EWHC 1269 (Comm)
- Palladian Partners LP & Ors v The Republic of Argentina & Anor [2023] EWHC 711 (Comm)
- London International Exhibition Centre PLC v Royal & Sun Alliance Insurance PLC and others [2023] EWHC 1481
- Stonegate Pub Company Limited v Amlin Corporate Member Limited & Ors. [2022] EWHC 2548 (Comm)
- Various Eateries Trading Limited v Allianz Insurance PLC [2022] EWHC 2549 (Comm)
- CORBIN & KING LIMITED v AXA INSURANCE UK PLC [2022] EWHC 409 (Comm)
- The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd & Ors [2020] EWHC 2448 (Comm)
- Hyper Trust Ltd v FBD Insurance plc [2023] IEHC 455
- LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC 17
- Brushfield Limited (t/a The Clarence Hotel) v AXA Insurance Designated Activity Company & Anr [2021] IEHC 263
- New Hampshire Insurance Co Ltd v MGN Ltd [1997] IRLR 24
- New Hampshire Insurance Co Ltd v MGN Ltd [1996] CLC 1692
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Cases citing this case
2 later cases · 2 positive
Most senior citing decisions:
- Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1419 (Comm) followed
- Oaxaca Limited t/a Wahaca v QIC Europe Limited [2024] EWHC 394 (Comm) applied
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