CL-2023-000064 - [2025] EWHC 1870 (Comm)

I do not agree with the U/Ws that the word “authority” is meaningless. In combination with “competent”, I would understand that word to refer a body (or person) with power and a role in the relevant context which goes beyond that of ordinary citizens; i.e. it means a party possessing the power to make decisions and enforce obedience or compliance. Context is important: at home, one might describe a parent as an authority figure; in the classroom, it might be a teacher.

The Cs are right to say that the use of this word in the context of denial of access distinguishes the actions of a protester blocking a road, from those of an “authority” such as the Highways Authority doing the same thing. This also seems to me to deal with the U/Ws’ assertion that a commercial party which held intellectual property rights over a play and could exercise a veto over whether it could be performed might qualify (contrast the power of the Lord Chamberlain until 1968 to prevent the staging of plays generally in the UK, which undoubtedly made him an “authority” in that context).

Unless the context demands, it does not seem to me that the word “authority” necessarily implies an “organ of the state” or anything of that kind. Some of the U/Ws’ submissions in this regard amounted to an attempt to read in the word “public” (or “statutory” – which was the word which was found in one of the other policies considered in the Gatwick Investment decision) to accompany “authority”. That being so, it is perhaps noteworthy that the parties have used the words “any public authority” (emphasis added) elsewhere in the Policy, such as in the cover for extinguishment expenses and fire brigade (“The insurance by each Item includes the costs charged by any public authority or emergency service …”). Points like this about consistency across a policy only have limited force in the context of insurance wordings, which are often rather cobbled together. But the observation highlights that the U/Ws do need to point to some reason for reading the word “authority” in that way in this provision, since the word “public” is not actually found there.

In the end, it seemed to me that the U/Ws’ first set of arguments all amount to different ways of contending for a noscitur a sociis or ejusdem generis construction. The problem for them is identifying any useful common genus or characteristic in this small sample of 3 examples.

The U/Ws focus on the powers of the three “bodies” identified in the list, but it seems to me that the powers available to the police are actually quite different in nature from those available to the Government, or indeed those of the British Army’s Logistics Corps (which is an example of a body that the U/Ws say would fall within this wording). For example, the police have powers of arrest, but the Government (i.e. the Prime Minister) does not. The Government has, in one sense, the power to impose fines (e.g. by passing laws or promulgating regulations – even if the actual imposition of those fines might be by the Courts or others). Whether the police can impose a fine might depend on what laws have been broken. Analysing the similarities and differences in this regard could quickly become quite complicated.

If one seeks to bridge the gap by saying that these bodies all have coercive powers going beyond those of ordinary citizens, it seems to me that the same could be said about the BHA or the GBGB. Indeed, save that the ultimate source of the ability to impose a fine might be said to be the territorial jurisdiction of a nation state, rather than agreement and membership, the manner in which the Government might take action to prevent access to a property, and the manner in which an authority like BHA might do so, are very similar. Each would probably promulgate a restriction and then impose fines or some equivalent punishment if there was a failure to comply.

I struggle to see how the “coercive” powers available to the police or the British Government can be said to be sufficiently different in nature from those available to the BHA or the GBGB as to enable me to place the former in the common genus and the latter outside of it. As I say, I accept that the source of those powers might be said to be different. But even looked at in that way, the difference between the power of a government to impose rules on those who choose to live within its borders and the power of an organisation to impose rules on those who choose to be members feels more like the subject matter of a political studies essay than a distinction that would be drawn by a reasonable policyholder seeking to understand when they would have cover.

As ever, context is all. For the reasons I have explained, I am doubtful as to whether the characteristics of the three entities which are specifically identified in limb (b) tell us what the parties meant by a “competent authority” here. Instead, it seems to me that one needs to look at the sphere in which the “authority” needs to be competent, namely taking action in response to danger or disturbance.

I do not accept the U/Ws’ contention that a reasonable policyholder would not have expected the BHA or the GBGB to take action by reference to a danger or disturbance up to a mile away from the course or track. Given their industry-wide role and the modern approach to health and safety (in which criticisms might subsequently be levelled at a body which had information about danger to the public, and the powers to avoid it, but had failed to act), it seems to me a reasonable policyholder might very well expect such bodies to react to news of an unexploded bomb, a riot or a wildfire, or other such danger, by cancelling races. It is dangerous to try to identify “paradigm” scenarios in which a particular type of cover might be expected to operate. That risks replacing the parties’ actual bargain with what the Court might expect them to have agreed: see Corbin & King Ltd v AXA Insurance UK plc [2022] EWHC 409 (Comm) (especially “we do not construe contractual provisions by reference to such paradigms”, per Cockerill J at [178]). But, in any event, I do not accept the premise underlying this submission, to the effect that one would not expect an industry body such as the BHA or GBGB (or the FA, or Golf England) to involve itself in safety matters in relation to the public events over which it had a supervisory role. That is exactly what I would expect, even if I would anticipate that the police or others might also become involved if they did not perceive the risk to have been sufficiently addressed. Indeed, the BHA would come to my mind as a relevant authority for the purposes of insurance of a racecourse long before the British Army’s Logistics Corps.

I should make clear that my expectation – as I seek to put myself in the position of the reasonable policyholder – is not premised upon a detailed understanding of the BHA or GBGB rules. It is only necessary to know (e.g. for the BHA) that (a) the membership of the BHA means signing up to rules which, in general terms, allow the BHA to cancel any race and (b) that the BHA perceives its role to be “to govern, regulate, promote, administer and organise horseracing in Great Britain in every way in which the Company shall think necessary and desirable”. Anyone who knows that – which must include any racecourse operator and any insurer who underwrites such operators – would anticipate that the BHA might use its powers to cancel races if it identified a threat to public safety if they were allowed to go ahead. In this modern world, it would be surprising if it were not to react in that way.

In my judgment, that is really the context in which the words “competent authority” fall to be construed. If someone had asked the reasonable policyholder who understood a little about the regulation of horse and greyhound racing, which authorities might issue instructions with which the Cs would have to comply restricting the use of the racecourses in the event of a danger to public safety being identified in the area, I am confident that the BHA and the GBGB would have been on the list. Indeed, I suspect that they would have been towards the top of that list.

I answer issue 2: “Yes”.