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

As I will explain, the Cs relied quite heavily (at least for the purposes of one issue) on an Excel spreadsheet (“the Spreadsheet”). I was told that the Spreadsheet related to the previous year of cover (i.e. 2019). The sheet which concerned BI cover contained some notes at the top of the page, including:

“Cover for Gross Revenue includes a 33.33% uplift, to allow for any unplanned increases…

It is noted that all tracks are to be insured for 12 month indemnity period as temporary marquees can be erected in the event that buildings are damaged. Alternatively fixtures can be ran at other courses…

The indemnity period should increase to a minimum of 36 months in respect of hotels, and perhaps 24 months for the golf courses…”.

There was then a series of line items, representing the various premises/facilities operated by the Cs, with (under a heading “2019 Declared Values”) a figure for “Estimates Gross Revenue” for most, and also a “Maximum Indemnity Period” (12, 24 or 36) specified for each. For the avoidance of doubt, for those among the Cs who operated multiple facilities, there were multiple line entries. So, for Lingfield, there was an entry for the racecourse (£6,424,164 / 12 months), an entry for the hotel (£4,893,431 / 36 months) and a partial entry for the golf course (blank / 12 months).

The part of the sheet which was headed “2020 Declared Values” was mostly incomplete, save that much of the “Maximum Indemnity Period” column had been completed. That column did not always match with the 2019 values, but did seem to be in line with the note above the table: i.e. 36 months for hotels and 24 months for golf courses.

It had been agreed between the parties that there was a spreadsheet for 2020, which they had not been able to find. They confirmed, however, that this missing document had formed part of the presentation of risk, on which each of the Cs (save the 5^th and 12^th Claimants) presented figures for estimated gross revenue “for each of their respective insured premises”. I understand that to mean that, as with the Spreadsheet, in this missing document, if one of the Cs operated both a racecourse and a golf course, the estimated gross revenue for each was given separately. This would then form part of the declaration by the Cs specifically referred to in the definition of “Estimated Gross Revenue” (see above). It seems that these values must then determine the sums insured (as set out above) for the different categories with different indemnity periods.

I note that the Court of Appeal, in the context of the appeal from the decision of Jacob J on the first preliminary issue trial, stated as follows (at [10]):

“The Bath Racecourse Bluefin wording under Risk Details Section 2 Business Interruption gave three sums insured for Estimated Gross Revenue with three different Maximum Indemnity Periods: £66,656,147 with a Maximum Indemnity Period of 12 months, £16,466,592 with a Maximum Indemnity Period of 24 months and £25,515,911 with a Maximum Indemnity Period of 36 months. These were different total or aggregate limits for respectively racetracks, golf courses and hotels”.

It would appear to follow that, for 2020 as for 2019, the estimated gross revenue for racecourses, golf courses and hotels must each have been declared separately, even if more than one type of facility was owned by a single claimant.

Mr Scorey was adamant, however, that I could not assume or infer that the missing spreadsheet from the risk presentation for 2020 was in the form of the Spreadsheet. He said I could assume nothing at all. That seemed a little unrealistic to me; it seems rather likely that the missing spreadsheet was an updated version of the Spreadsheet, with the “2020 Declared Values” completed. However, I understand and accept his submission that this is the hearing of preliminary issues and that I have not heard any factual evidence. It is not enough at this stage to say that something is likely, or more likely.