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

The Cs make much of the fact that the parties did not impose any aggregation wording for the Denial of Access Cover limit. A limit on an insurance indemnity that applies “any one loss” is not aggregation of losses: it is the absence of such aggregation. It is not open to an insurer to say, on this wording, that a series of losses ought to be combined under a single limit because they share an originating cause or because there is a degree of unity as to locality, time and agency of the losses.

Each £2.5m “any one loss” limit envisages an entitlement to a further limit on each occasion that the denial of access extension was “triggered” and caused loss, meaning each occasion on which there was a fresh insured peril which had a material effect on the relevant insured’s financial performance.

Where revenue was generated from hosting scheduled horse and greyhound races, the Cs submit that the limit applies separately for each race that was cancelled, or hosted without spectators or with limited spectators. The logic for that submission is that the loss under the Policy is the “interruption of or interference with The Business carried on by The Insured at The Premises”, as made clear in the insuring clause. The Cs argue that this means that the concern is with identifying ‘triggers’ for cover and, if so, how many. By a ‘trigger’, the Cs say that they mean “the matter or matters which give rise to a right to claim under a policy”.

An action by a competent authority is not itself a loss, unless it in fact interrupts or interferes with the Business at the Premises by preventing or hindering the use of the Premises. Accordingly, the Cs say, each scheduled race that was cancelled, or required to be conducted behind closed doors, was its own loss for the purposes of the denial of access extension. By way of corollary, when there were no races, there was no BI loss. The right to claim arose not upon the instruction being given by the authority, but when the first race would have happened, but could not. The Cs say that the U/Ws’ approach involves treating the Government or other authority action as itself being the loss, and amalgamating all races and interruptions into one loss (in effect bringing in occurrence-based aggregation by the back door).

Alternatively, and, in any case, for the other types of facility (i.e. golf courses, hotels and a pub), the Cs argue that there was a fresh trigger of the cover, and hence a further loss, each time materially different restrictions on premises were imposed; i.e. each materially different restriction amounted to a separate trigger, a new interference, and a new loss. The Cs observe that pubs and restaurants etc. did not depend upon the hosting of scheduled events on fixed days in the year, so they accept that nothing equivalent to the “per affected race” approach should apply to them.