Stonegate v MS Amlin & Ors

Commercial Court Claim no. CL-2021-000161

Background

Fenchurch Law is representing Stonegate Pub Company Limited in its claim for Covid-19 business interruption losses against three insurers: MS Amlin, Zurich, and Liberty Mutual.

Stonegate owns and operates over 4,500 public houses, bars, restaurants and other hospitality businesses in the UK and, like all hospitality businesses, suffered interruption and interference to its business as a result of the emergence of the Covid-19 pandemic, and the government’s actions in response.

The three insurers in the case provided coverage for 760 of Stonegate’s establishments under a policy issued using the Marsh Resilience wording, which was one of the representative sample of wordings considered by the Court in the FCA test case. The test case confirmed that the Resilience wording was capable of responding to business interruption losses arising from the Covid-19 pandemic under three insuring clauses, and insurers have not challenged those findings. Coverage is therefore not in dispute.

The Issues in the Case

Stonegate’s case focuses on the limits of liability available to meet Stonegate’s losses, which itself turns on four issues of principle:

(i) Aggregation

The case will determine how Stonegate’s losses suffered at different locations, at different times, and in different ways are to be aggregated for the purposes of the relevant (sub)-limits of liability. Insurers contend that Stonegate’s losses are to be aggregated as one ‘Single Business Interruption Loss’, and that its claim for Business Interruption Loss is therefore subject to a single (sub)-limit of liability of £2.5m. Stonegate claims that it is entitled to claim multiple (sub)-limits of liability. The outcome of the issue will depend in part on the court’s determination of the meaning of the term “occurrence” in the context of Stonegate’s policy.

(ii) Causation of Post Policy Period Losses

The policy provides a Maximum Indemnity Period of 36 months. Stonegate, like all hospitality operators, continued to suffer loss after the expiry of its policy period. The case will determine the applicable indemnity period(s) to Stonegate’s claim, and specifically how long the indemnity period extends after the expiry of the policy period.

(iii) Additional Increased Costs of Working

In addition to cover for Business Interruption Loss, the policy provides cover for Additional Increased Costs of Working. The case will determine the limit of liability under this cover, and the nature of the costs that may be claimed.

(iv) Government Support

Insurers contend that as a matter of law and/or the proper construction and/or application of the policy, governmental support (including Coronavirus Job Retentions Scheme payments or “furlough” payments, and Business Rates Relief) is to be taken into account for the insurers’ benefit when calculating any Business Interruption Loss and/or other sums recoverable under the policy. Stonegate denies that insurers are entitled to make any deduction from its claim in respect of these kinds of governmental support.

The respective positions of the parties are set out in detail in the statements of case, which are documents of public record, and may be downloaded below:

Amended Particulars of Claim

Defence

Reply

Updates

Because of the relevance of these issues to many other policyholders with unresolved Covid-19 business interruption claims, including those insured under the Marsh Resilience wording as well as those under other policy wordings, Stonegate recognises that the outcome of the case is of significant interest to many market stakeholders.  Fenchurch Law will therefore share regular updates on the progress of the case.

Current Procedural Status

The case is currently listed for a Case Management Conference on 29 October. At that hearing, the Court will hear the parties’ proposals for the management of the case, and may give directions as to timetable, procedure and any other preliminary matters.

A further update will be posted sharing any Order granted by the Court following the CMC.