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

This is a yet further trial of preliminary issues concerning cover for business interruption and interference (“BI”) losses suffered as a result of measures implemented during the COVID-19 pandemic. Since the decision of the Supreme Court in Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1, it feels as if there has been a never-ending procession of such issues coming before the English Courts; testament, no doubt, to the extent of the losses suffered, but perhaps also to the ingenuity of lawyers (on both sides).

In the present case, it is questionable whether this process of identifying and resolving further preliminary issues has really hastened final resolution of the claim. In some instances, the fact that other issues were not yet ripe for a decision made it slightly more difficult to answer the issues which were before me, or left me wondering whether my answer on a particular issue would really make any material difference to the outcome in the long run.

However, while there was inevitably a feeling of trepidation at being presented with a series of exam questions to answer, in the end most of them were presented for decision in a way which was manageable. I had no shortage of assistance from Counsel, who showed great patience with my questions.

I did not hear any live evidence, but instead was provided with an extensive set of agreed or assumed facts, in a document called “Statement of Agreed and Assumed Facts”. Where I have referred in this judgment to facts being agreed, I am referring to the contents of that document. It was common ground that, to the extent my answer to any issue depended on facts which lay outside the compass of that agreement (and where the agreed facts did not enable me to draw inferences), I would have to make that clear and the final resolution of that issue would have to wait for another day.