Bellini (N/E) Ltd v Brit UW Limited
[2024] EWCA Civ 435
Oaxaca Limited t/a Wahaca v QIC Europe Limited
19 February 2024
[2024] EWHC 394 (Comm)
High Court
Two restaurants sued their insurance company for losses during COVID-19 lockdowns. The judge said there were too many unanswered questions about the insurance policy and how much money the restaurants lost, so they couldn't get a quick ruling. However, the judge did allow them to appeal one part of the decision to a higher court. They also couldn't get an advance payment from the insurance company while the case is ongoing.
Key Facts
- •Two restaurant chains (Wahaca and Flat Iron) brought business interruption insurance claims against QIC Europe Limited due to COVID-19.
- •The claims focused on non-damage business interruption and denial of access clauses.
- •Both chains had policies with identical wording (Jelf/BPL/v4-2019).
- •The claims revolved around the interpretation of 'immediate vicinity' and 'danger' in the policy wording.
- •The Claimants sought summary judgment on the scope of cover and an interim payment.
Legal Principles
Summary judgment is granted only when there is no real prospect of success at trial and no compelling reason for it to go to trial.
White Book volume 1, page 675; Hewes v West Hertfordshire Hospitals NHS Trust [2018] EWHC 2715 (QB)
Interim payments are an exception to the rule that a defendant shouldn't pay until liability is established; strict conditions under CPR r 25.7 must be met.
Senior Courts Act 1981, s.32(5); CPR r 25.7
For an interim payment under CPR r 25.7(1)(c), the court must be satisfied, on the balance of probabilities, that the claimant would obtain judgment for a substantial amount of money at trial.
FII Group Litigation v Revenue and Customs Commissioners (No 2) [2012] EWCA Civ 57; Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408
The meaning of policy clauses, such as 'immediate vicinity' and 'danger', are determined by their precise wording, not impressionistically.
Policy wording in section 23
Causation in NDDA/DOA clauses considered in previous cases such as Corbin & King Ltd & Ors v AXA Insurance UK Plc [2022] EWHC 409 (Comm), Financial Conduct Authority v Arch Insurance (UK) Ltd [2020] EWHC 2448 (Comm) and [2021] UKSC 1
Previous Case Law
Outcomes
Summary judgment on the 'Coverage Issue' was refused.
The court found significant uncertainties regarding the meaning of 'immediate vicinity,' the definition of 'danger' (including the threat of COVID-19), and the extent of the Claimants' losses. The evidence provided was insufficient to determine the quantum of loss with any certainty.
Summary judgment was granted on the 'Construction Issue' (policy interpretation), with permission to appeal.
This was to allow the issue to be considered alongside similar cases before the Court of Appeal, improving efficiency.
The application for an interim payment was refused.
The court was not satisfied that the Claimants would succeed at trial and obtain a substantial amount of money, as required for an interim payment under CPR r 25.7(1)(c).
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