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

As set out above, it is no longer disputed that the “any one loss” limit applies per claimant by reason of the Policy’s composite nature: see Gatwick Investment in the Court of Appeal and especially Flaux C’s analysis at [165]-[167].

The remaining issues concern how that “any one loss” limit operates at a more practical level, having regard to the way in which the different Government, BHA and GBGB measures affected the different facilities operated by the Cs. Specifically, issue 8 asks:

“Is a separate limit under the Denial of Access Cover available for each Claimant individually:

(1)

Per relevant measure or action;

(2)

Per Premises; and/or

(3)

Per Affected Race.”

Issue 8A is:

“8A. As to issue 8(1), what were the relevant measures or actions. In particular:

(1)

Are the relevant measures or actions, as the Claimants say, some or all of the measures or actions identified in sections C2 to C4 and relied on in section C5 and Appendices 2 and 2B of the Amended Particulars of Claim; or

(2)

Are the relevant measures or actions limited, as the Defendants say, to (a) the 21 March Regulations (alternatively the Prime Minister’s announcement of 20 March 2020); (b) the 26 March Regulations (alternatively the Prime Minister's announcement of 23 March 2020); and (c) the 5 November Regulations?”

Although the parties approached the issues in a very different way, it seemed in the end to be agreed that there is an individual “loss” each time the operation of an insured peril caused an insured a “Reduction in Gross Revenue … during the Indemnity Period”. It will be noted that both parties focussed much of their submissions on when the denial of access extension was triggered (i.e. when there was what might be called a “trigger event” for the purposes of that cover). In my judgment, they were right to do so.

Accordingly, the differences between them can be grouped under 3 main heads: