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

It is probably easiest to introduce the issues which I was asked to decide by explaining briefly how the parties have reached the present stage in their dispute. I will have to descend further into some of the details as I work through the disputed issues, but for the most part what I say below will suffice.

The Claimants (“the Cs”) are all within the ‘Arena Racing’ group. At the relevant time, they operated racecourses, greyhound tracks, golf clubs, hotels, and a pub at various locations in England and Wales. The Cs provided me with lists of the different facilities (to use a neutral word) which they operated. Most of the Cs have a single facility: so, for example, Bath Racecourse Company Limited operates Bath Racecourse. But some also have a hotel, and perhaps even a golf course as well. Lingfield Park Limited. operates Lingfield Park racecourse, Lingfield Park golf club and the Lingfield Park Marriott hotel.

Two of the Cs (the 21^st and 22^nd Claimants) did not have physical facilities of that kind. Instead, I understand that one of them provided services (stalls, equipment, security and presentation screens) to others of the Cs, and the other managed and exploited media rights (i.e. broadcasting races to betting shops via a TV channel).

As many will recall, on 16 March 2020, the Prime Minister gave instructions that people should stop non-essential contact, stop all unnecessary travel, avoid public venues, and start working from home where possible. A similar statement was made by the Welsh First Minister on 17 March 2020.

On 18 March 2020, the British Horseracing Authority (“BHA”) and the Greyhound Board of Great Britain (“GBGB”) gave instructions that, respectively, horseracing should be suspended in England and Wales, and that greyhound racing should be moved behind closed doors (i.e. without spectators at the venue).

On 20 March 2020, the Prime Minister and the Welsh First Minister gave instructions that public venues including pubs should close that night. Those instructions were implemented by regulations (Footnote: ¹) the next day, which also required (for example) the closure of bars in hotels.

On 23 March 2020, the Prime Minister announced the first nationwide “lockdown”. The Welsh First Minister made a similar statement the same day. Following that announcement, England Golf confirmed the closure of golf clubs (the same day) and the GBGB gave instructions to suspend all greyhound racing (the next day). Hotels were also closed, subject to limited exceptions. That first lockdown was implemented by regulations on 26 March 2020. (Footnote: ²)

The measures adopted at the start of the first lockdown were relaxed in certain respects over time. Relevantly for present purposes: (1) golf courses were permitted to re-open, but still subject to a number of restrictions, from 13 May 2020; (2) horse and greyhound racing in England recommenced behind closed doors on 1 June 2020; and (3) horse racing in Wales recommenced behind closed doors on 15 June 2020.

On 4 July 2020, the first lockdown was brought to an end. The Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020 permitted pubs, bars, and restaurants to serve food and drink for consumption on the premises. Hotels could provide accommodation to all and gatherings of up to thirty people were permitted, although the Government was still recommending that people avoid gatherings larger than six.

On 14 September 2020, the “rule of six” was enacted by the UK Government and announced the same day. The rule of six prohibited any gathering of more than (i) six people (from any number of households), (ii) one household (which may include more than six people), or (iii) two linked households (which again may include more than six people), unless a valid exemption applied.

On 24 September 2020, the Health Protection (Coronavirus, Restrictions) (No 2) (England) (Amendment) (No 5) Regulations 2020 came into force, permitting outdoor sports gatherings (without spectators) and introducing restricted hours for trading of restaurants, bars and pubs (prohibiting the service for food and drink for consumption on the premises between the hours of 22:00 and 05:00) and requiring that customers remained seated whilst consuming food or drink on the premises.

On 14 October 2020, the regime was changed again, with a three-tier regional system introduced, with different tiers containing different restrictions for different types of venue. (Footnote: ³)

On 31 October 2020, the Prime Minister announced a second lockdown which was implemented by regulations on 5 November 2020. This came to an end on 2 December 2020 and was replaced with another three-tier regional system of restrictions. (Footnote: ⁴) On 20 December 2020, a fourth tier was added. (Footnote: ⁵)

There was a third lockdown in early 2021, but that falls outside the policy period and is not important for present purposes.

The Cs had a Material Damage and Business Interruption Policy (“the Policy”) underwritten by the Defendants (“the U/Ws”) for the period 1st January 2020 to 31st December 2020. The Policy included business interruption (“BI”) cover, which had an extension for denial of access (limited to £2.5m any one loss). The Cs alleged that this extended cover was engaged when lockdown and other measures were put in place as a result of COVID-19. Indeed, a claim was apparently notified on 18 March 2020, when instructions were given by the BHA and the GBGB respectively (as described above).

The U/Ws accepted at an early stage that there was some coverage for these BI losses, but took various points about the application of the limits and the quantification of loss.

The Cs commenced the present proceedings and immediately sought to participate in a trial of preliminary issues which was heard by Jacobs J in October and November 2023. The judgment following that first preliminary issue trial is better known as Gatwick Investment Ltd v Liberty Mutual Insurance Europe SE [2024] EWHC 124 (Comm) and involved overlapping issues in other COVID-19 BI insurance claims.

Jacobs J held (among lots of other findings that are less relevant for present purposes) that (i) each of the Cs could claim BI losses under the denial of access extension, with their own £2.5m limit (i.e., for separate limits for each of the Cs) for “any one loss”; (ii) further limits applied for claims preparation costs but not additional increased cost of working; and (iii) credit should be given by the Cs for payments they received as a result of the Coronavirus Job Retention Scheme (i.e. “furlough” payments) under the savings clause in the Policy.

Jacobs J’s decision was appealed by both the U/Ws and the Cs respectively. Those appeals were dismissed by the Court of Appeal: see [2025] EWCA Civ 153. I am told that permission to appeal on the furlough payments issue has been given by the Supreme Court by order dated 1 June 2025.

That left a number of further issues about the operation of the peril and the application of limits, some of which appeared to have factual content. Several of those issues were resolved by agreement. For example, the U/Ws acknowledged that there would have been cases of COVID-19 within a mile of each of the Cs’ premises at all material times, for the purposes of triggering limb (b) of the denial of access extension. The parties also agreed that certain quantum aspects (issues 12-14 and 16 on the Agreed List of Issues) needed to be the subject of loss adjustment before they could sensibly be put before the Court.

On 4 July 2024, Butcher J made an order by consent that there should be a trial of issues 2, 7-9 and 11 on the Agreed List of Issues. Since that order, some further agreements have been reached between the parties, disposing of issues 7 and 9.