As the Bank of England continues to combat rising prices, interest rates have steadily increased. On 3 February 2023, the Bank of England Monetary Policy Committee voted to increase the base rate from 3.5% to 4%. This is the tenth time the Bank of England will increase the benchmark fee since December 2021. The base rate is also at its highest since 2008.

Base rates are the interest rate that the Bank of England sets for loans to other banks. This rate serves as a standard for interest rates in general. As such, it will also impact customers’ buying habits, business activities, and late payment interest.

This article discusses the reason for the UK’s rising interest rates and how it affects late payment/debt recovery for businesses. It will also address debt recovery Solicitors’ roles in ensuring businesses recover their monies regardless of interest rate hikes.

Why Have Interest Rates Gone Up?

As mentioned, the Bank of England has increased interest rates (bank or base rates) from 0.1% to 4% since December 2021. This is in response to the alarming high inflation rates that have ravaged the country’s economic climate. As a result, the cost of borrowing increased for many individuals and businesses. However, the increasing interest rate is the most effective method the Bank of England can employ to reduce soaring prices.

For an economy to be healthy, inflation rates must remain low and stable to ensure monetary value remains constant. The Bank of England is responsible for keeping the inflation rates at a maximum of 2%.

As the Bank of England increases interest rates, people will have less borrowing power and be motivated to save. This means they’ll also spend less, resulting in low demand for goods and services. With declining demand comes a reduction in product prices.

How High Could Interest Rates Go?

No one, not even the Bank of England, can predict with 100% accuracy how high the interest rates can rise. It depends on the economy and inflation rates in the next few years. However, one thing is sure — the Bank of England will continue reviewing its monetary policies to curb inflation. If this means a continuous increase in bank rates, they’ll have no option but to explore that route.

The Bank of England reviews the economy and decides on interest rate increases every six weeks. So, they will likely make the next decision on interest rates on Thursday, 23 March 2023.

However, analysts believe interest rates may peak at 4.5% . While that’ll be a new peak, it’s a significant fall from the over 6% interest rate predicted some weeks back.

What’s the Interest on Late Commercial Payments by Debtors?

Late payment is one of the major concerns businesses face in the UK. According to the Credit Protection Association, half of SMEs suffer late payments. As a result, these affected SMEs are at high risk of business failure due to limited cash flow.

Fortunately, the government stepped in to solve this problem by introducing the Late Payment of Commercial Debts (Interest) Act 1998. The purpose of this Act is to discourage late payments and ensure that creditors receive compensation for them.

This act stipulates the rate of interest businesses may demand from debtors that are late on their payments. The interest rate is 8% above the Bank of England base rate. This interest starts counting from the day the debt becomes due.

How the Rise in Interest Rates Affect Debt Recovery

An increase in the Bank of England’s interest rates directly affects contractual and late payment interest rates against debt owed. However, the Late Payment of Commercial Debts (Interest) Act freezes interest at the rates that are in place on 31 December and 30 June. Therefore, despite interest rates going up to 4%, the Late Payment Act will apply the rate as of 31 December 2022 which was 3.5%. However, this base rate is added to a statutory 8% per annum meaning that creditors claiming under the Late Payment Act can claim interest of 11.5% per annum on debts that become due between 31 December 2022 – 30 June 2023.

For example, if a debtor owes £1,000 with the current bank rate of 3.5%, the annual statutory interest on this would be £115 (1,000 x 0.115=£115). So to get the daily interest, you’ll have to divide £115 by 365 days. This will amount to 31p per day.

Why Do You Need Debt Recovery Solicitors?

As inflation and interest rates rise, People might be compelled to use more of their income for non-discretionary purchases. Unfortunately, this means they’ll have less money to pay debts and are bound to default on their responsibilities. That’s bad news for cash flow needed to sustain your business.

Recovering money from debtors in these trying times has undoubtedly become a daunting task. As such, you may require the services of an expert (debt recovery Solicitor) to do the work for you.

From sending demand letters to commencing court action and everything in between, we’ll ensure payment is forthcoming as soon as possible. In addition, debt recovery Solicitors will provide you with quality advice and guidance when necessary.

Do you need help from Lovetts Solicitors? Sign up for free today.

On 2 November 2022 the Court of Appeal heard a case concerning a claim for flight compensation that had been wrongly denied in the lower Courts. Lovetts successfully represented the passengers in seeking to overturn the decision of two earlier courts.

The case of Dore & anr v EasyJet Airline Company Ltd [2022] EWCA Civ 1553 stemmed from a delayed flight on 1 June 2019, where two passengers had booked a flight operated by easyJet. The flight was delayed by 7 hours meaning the passengers were each entitled to compensation of 250 € each.

EasyJet provide an online customer portal designed to allow its customers to submit claims for compensation. In this case, the passengers’ request for compensation was submitted through easyJet’s portal (despite having already having received a request for compensation from Lovetts on behalf of the passengers) by a flight compensation company. Following the request for compensation being submitted the airlines portal, easyJet responded by email and claimed the passengers’ details could not be found and the request for compensation was refused.

Court proceedings were subsequently issued and easyJet filed a defence, claiming the passengers had not submitted a claim via their online portal and had not complied with their terms and conditions, this was incorrect.

The first hearing was held at Luton County Court. At the hearing, easyJet changed their position and conceded that a submission via the portal did occur but the data submitted was probably wrong. They did not disclose the data received nor did they say what data was wrong.  Despite this Deputy District Judge Abrahams dismissed the Claimants claim and held that it was likely easyJet had not received sufficient information to process the claim.

The decision of the first instance judge was appealed. At Oxford County Court HHJ Clarke dismissed the appeal on the basis that the burden of proof remains with the Claimant and despite the airline holding the data and failing to disclose what they had received, HHJ Clarke held that the passengers could have taken a screenshot, photograph or printed evidence of the claim being submitted through easyJet’s portal, to evidence that a claim had been submitted.

The decision of HHJ Clarke would have had serious repercussions for all consumers that complete forms and/or place orders/make bookings online. It would have placed an unreasonable burden on consumers to screen shot everything they do online and accordingly it should be deemed a material obstacle. As a result, an appeal was made to the Court of Appeal on the grounds that the decision in the first appeal was wrong and/or unjust due to serious procedural irregularity. Additionally, the decision raised an important point of principle that warranted consideration by the Court of Appeal.

In addition, the Appeal would consider whether the passengers had complied with easyJet’s terms and conditions in submitting a claim directly to easyJet and allowing 28 days to respond, before engaging a third party (Lovetts) to submit a claim on their behalf.

The case of Dore and anr v easyJet Airline Company Ltd was heard in November 2022 by Lord Justice Males, Lord Justice Birss and Lord Justice Snowden.

The Terms and Conditions

The first error arose from the fact that easyJet claimed their terms and conditions had not been complied with. This was incorrect because they were relying on terms that did not apply to the passengers. The terms easyJet had relied on at the first hearing, were terms that had not been incorporated at the time the passengers made the booking.

The Court of Appeal correctly identified that when the passengers booked their tickets, easyJet’s terms and conditions at the time of booking were different to the terms and conditions which were before the judge in the first instance.

Can you instruct someone else to request compensation on your behalf before instructing solicitors to issued court proceedings?

In the present case, the Court of Appeal also briefly considered whether a third party flight compensation company could submit a claim through easyJet’s portal on behalf of the passenger.

Little thought was needed, as it had recently been determined in Bott & Co v Ryanair DAC [2019] EWCA Civ 143 (“Bott”) that a third party could submit a claim on behalf of the passenger. In the present case, the Court of Appeal reaffirmed the earlier finding stating

“even if the matter was free from authority, I would hold that the passengers are entitled to have someone else access the online portal on their behalf and thereby make a claim in their name. The other person could be a friend of family member, or it could be a claims handling company or solicitor engaged for that purpose”.

The Court of Appeal noted that it was irrelevant if an airline preferred its customers not to use a claims handling company on its behalf, passengers are allowed to do so.

The appeal and an issue of public policy

The Appeal Judges unanimously agreed that easyJet had placed a material obstacle in the way of the passengers, by requiring evidence that a claim had been submitted through its portal, when the passengers had no way printing or returning to their submission once it had been sent.

Such a requirement was clearly not in the interest of public policy. It prevented passengers from claiming compensation, which they are entitled to when a flight has been delayed or cancelled.

The system

It was also highlighted that a system such as the one provided by easyJet, which produced automated response emails which do not allow a user to see what data had been recorded as entered (so as to facilitate the correction of errors), risk itself amounting to a material obstacle. The Court highlighted that such a system should provide an accessible record of data entered to assist passengers correct any input errors and make their claim for compensation. EasyJet’s system did not do this. It presented a material obstacle to the passengers obtaining compensation.

Lord Justice Males set out a 4 part test for an online system to achieve the objectives of enabling passengers to claim compensation without difficulty and to receive payment with incurring legal fees or paying claims companies, without putting a material obstacle in the way:

1. The airline’s terms and conditions must make clear to the passenger that the use of the system must be compulsory and must be used before court proceedings are commenced.

2. The passenger should have the ability to save the claim which is submitted and should be strongly advised to do so in case of any issue arising.

3. If it is the case the claim can only be processed if some or all of the claim details are correctly entered on the online form which is submitted and that an error in one or more fields will lead to the claim being rejected, that must be explained to the passenger.

4. If a claim is rejected on the ground the claim details have not been entered correctly, the automated response sent by the airline must make this clear.

The Outcome

Lovetts was successful and the Appeal was granted. Not only did this success protect passengers right by reaffirming the decision in Bott and Co that a flight compensation company could assist a passenger claiming compensation, it also protected all consumers from the burden of having to screen shot everything they do online.

LJ Males in his Judgment stated:

“Its (easyJet) computer knows which flights have been subject to delay and knows the identities of the passengers on those flights. Although there was no evidence about this, it ought not to be difficult for it to contact passengers (or at any rate, those who have made the booking for passengers) who are entitled to compensation, but no doubt it suits EasyJet that a certain percentage of passengers will never bother to claim. So although EasyJet is not required to contact passengers in this way, in a sense any costs incurred in handling the claims of those passengers who do claim can be set against the savings achieved as a result of deciding not to pay compensation unless a claim is made.”

LJ Males correctly identified that airlines save money by not paying out compensation to passengers that do not make claims. Even for passengers who do make claims, airlines make it manifestly difficult in the hope they will drop their claim.  That is why Lovetts Solicitors and other flight compensation companies assist passengers by recovering flight compensation rightly due to them.

Lovetts are delighted that the claimants obtained the correct outcome and that justice has been served.

(1) Stonegate Pub Co v MS Amlin and Others                    

(2) Various Eateries Trading v Allianz            

(3) Greggs v Zurich

(2022, Commercial Court)     

The Commercial Court has given judgment in three cases raising similar issues as to how business interruption (‘BI’) insurance operates in the context of the covid 19 pandemic and the government’s and the public’s reaction thereto.  The actions are not consolidated, but, with the parties’ agreement, the judgments take account of issues arising across the three sets of proceedings. 

The three claimants in these cases took out BI insurance on the same standard form of policy wording (known as the Marsh Resilience form) and are claiming from their insurers in respect of BI losses sustained at their respective pubs, bars and other locations across the UK.  The judgments will be significant for insurers and insureds who still have covid-related BI claims to resolve.

The judgments lay down general principles, as the first stage in determining how much each insured can claim, particularly in relation to how retentions and limits apply to covid-related losses. 

Essential to the court’s judgments is the distinction drawn between (1) a ‘covered event’, being an event covered under the insurance which gives rise to a claim under the policy, (2) the issue of whether the insured‘s BI loss was caused by a covered event and (3) the aggregation of losses, and imposition of a monetary limit per occurrence as provided for under the insurance, where individual covered events are connected by a ‘single occurrence’. (The insureds contend for the maximum number of occurrences and the insurers contend for the minimum.)

 The main findings of the court are set out below, by reference to the Stonegate judgment which is the fuller of the three, cross-referring to the other judgments for specific points. 

What are the ‘covered events’ in covid-related BI losses?

Cover for Notifiable Diseases and Other Incidents – Each of the three insureds had cover for BI loss where any of the diseases listed in its policy, or another disease which came to be classified as a notifiable disease under the health regulations, was discovered at any of its insured locations or occurred within the vicinity of an insured location, during the period of insurance. The term ‘vicinity’ was defined in the policy.

The disease section of cover extended to ‘Enforced Closure’.  This gave cover for BI loss resulting from the enforced closure of an insured location by a governmental or other relevant authority, for health reasons.

Covid 19 was made a Notifiable Disease in early 2020.

In the Various Eateries case, the insurers’ primary argument was that this section was expressed to cover the discovery or occurrence of the disease within the vicinity, and accordingly the state of affairs constituted by the presence of the disease in the vicinity should be regarded as the covered event. 

Meanwhile, in the Greggs case, the insurers argued that the effect of the policy was to provide an indemnity where the insured’s business was interrupted as whole, and therefore that the disease clause should be regarded as triggered by the spread of the pandemic.

However, the court, applying the analysis made in the test case of FCA v Arch decided by the Supreme Court in late 2020, held that each individual case of covid which was either (a) discovered at an insured location or (b) occurred within the vicinity of an insured location, was a covered event under the Notifiable Disease section, equally effective with every other such case in causing the governmental action and public response thereto that gave rise to BI loss.

Turning to the Enforced Closure section, the court held that each actual closure of all or part of an insured location under the relevant compulsion or instruction was a covered event and trigger of coverage.

Cover for Prevention of Access (Non Damage) – Each of the three insureds also had cover for BI loss resulting from the actions or advice of the police, or another relevant authority, in the vicinity of an insured location which prevented or hindered the use of, or access to, an insured location. It is to be noted that this did not require that the official action should be due to an emergency or danger in the vicinity.

The court held that, under this section, it is the action of the relevant authority, if this prevents or hinders the use of, or access to, one or more insured locations, which is the covered event.  The number of covered events is the number of actions and advices (excluding reiterations of the same action or advice), rather than the number of insured locations to which the actions or advices relate.

When are covid-related BI losses arising out of covered events aggregated as a single occurrence?

In respect of BI loss resulting from Notifiable Diseases and Enforced Closure, the policy specified a retention of £100,000 and a limit of liability of £2.5m, any one single business interruption loss (‘SBIL’).

In respect of BI loss resulting from Prevention of Access, the policy specified a retention of £100,000 and a limit of liability of £1m, any one SBIL.

A SBIL was defined, relevantly, as,

‘all Business Interruption Loss and Business Interruption Costs & Expenses … that arise from, are attributable to or are in connection with a single occurrence‘.

The policy thereby included aggregation wording, providing that individual covered events causing BI loss should be aggregated as a single occurrence, with one retention and one policy limit, in a case where the events were connected by a unitary and identifiable occurrence.

The court held that, in order for there to be a unifying ‘occurrence’, it is necessary to identify something that occurs at a particular time and place, in a particular way.  The policy contained the usual requirement for a covered event to be the proximate cause of BI loss.  However, as to the degree of connection required between the unifying occurrence and the individual BI losses, the court held that the words quoted above require only relatively weak causal linkage.  Wording of this type does not, for example, require that the unifying occurrence itself should be the proximate, sole or main cause of the loss.  Further, the policy wording clearly contemplated that losses could be aggregated more widely than on a per premises basis.  However, in order to be relevant for the purposes of the aggregating provision, the unifying occurrence must not be too remote, geographically or temporally.

As to the relevant time for determining whether losses arise from a single occurrence, given that one of the primary functions of BI insurance is to provide the insured with funds during the interruption, the court held that the relevant point is the earliest time after commencement of loss at which a reasonable person in the position of the insured (also referred to as an informed observer)  would seek to decide whether there was one relevant occurrence. This will be a relatively short period after loss starts to be sustained. The determination proceeds on the basis of the best material that would have been known to the informed observer at that juncture.

The insurers proposed various set of circumstances as unifying occurrences in the case of covid-related BI losses.  Taking into account the matters in the preceding two paragraphs, the court found as follows.

The first development of the virus, or subsequent specific mutations of the virus (‘the virology options’) – These were rejected as candidates for the unifying occurrence because events of this type were too remote, but also too uncertain.  Further, the informed observer would not have been aware of matters of such highly specialist knowledge at the time for making the determination.

The first transfer of the virus to a human or the outbreak of covid in Wuhan – These were rejected because the initial transfer of the virus to a human was too remote.  Meanwhile, an outbreak did not qualify as a single occurrence and was also too remote.

The tipping point at which the pandemic became inevitable – This was rejected because the relevant definitions, and assumptions as to possible outcomes in terms of counter-measures and other actions that could have been taken at any given point, prevented the court from identifying an occurrence of this type with sufficient certainty.

Any one single case of covid within the vicinity – The court held that an individual case of covid could not be used as the unifying occurrence with which the insured’s losses from other single cases, being covered events, were connected, because no individual case had more significance as a unifying factor than any other.  It was only by reason of there being very many such losses, each equally effective, that individual cases had the relevant causative effect.

The government’s response – The court did not accept the argument put forward in the Greggs action that the government’s  co-ordinated response to the pandemic between March and December 2020 was a single occurrence, because as a matter of fact there was no such co-ordinated response across the four nations of the UK, while the purpose of governmental action varied over the period.

However, the court did accept the general submission made by the insurers that a governmental measure which sought to contain the spread of covid and did so in ways which affected the insured’s business constituted a unifying occurrence falling within the terms of the insurance.

Thus, the decision taken at a meeting in the Cabinet Office Briefing Room (‘COBR’) on 16 March 2020, that the public should be advised to avoid pubs, restaurants and clubs, was a unifying occurrence. Alternatively, there were three relevant occurrences, in the form of the announcements of the new advice to the public by the Prime Minister on 16 March 2020 and by the First Ministers of Wales and Scotland, the following day. An informed observer would have regarded the decision of the three governments as a unitary matter which would have an effect on its business throughout the country.

Again accepting the insurers’ submission, the  court held further that the government’s instructions given on 20 March 2020 to all pubs, bars and restaurants to close and not reopen the following day was a single occurrence, or alternatively three occurrences, for England, Scotland and Wales respectively.

Further points made in the judgments included the following.

Possibility of further unifying occurrences – It was the insurers who had proposed the occurrences of 16 and 20 March 2020 as unifying occurrences with which individual covered events were connected.  The court had reservations as to whether these were the only circumstances which could be characterised as unifying ‘occurrences’ in that period.  Thus, it was possible that the announcement of the lockdown on 23 March 2020 was a further occurrence.

However, the review and renewal of the 26 March 2020 regulations in April, May and June 2020 would not be regarded as separate occurrences.

Effect on the recoverability of BI loss in the indemnity period, given that the pandemic was continuing –  It would be for the insured to establish that all its BI loss in the indemnity period was caused by covered events occurring in the period of insurance, rather than caused by cases of the disease occurring after the period of insurance. Cases of disease in the vicinity after the end of the policy period  could not simply be regarded as the playing-out of the effect of the covered events.

Related actions – (per the judgment in the Greggs case) The BI losses that flowed from a decision to close the whole of a business even though the insured was only required by regulation to close part of the business, could be losses connected with a single occurrence in the form of a governmental measure directed at containing the spread of covid.

When the insured must give credit for Government support – Such support, in the form of business rate relief and grants under the Coronavirus Job Retention Scheme (i.e. furlough payments), would as a matter of general principle reduce the amount of BI loss payable to the extent that such support reduced expenditure payable by the insured out of turnover, albeit that this would depend on the wording of any applicable savings clause in individual policies.

For further information, please contact Wendy Miles, Chris Earl or William Sturge at Lovetts.

                                                                                                                                       

The Insolvency Service have recently announced that the Insolvency deposit payable when creditors issue a bankruptcy and winding up petition will increase from 1st November 2022.

The increase to the deposit fees are detailed below:

Current Fee Fee from 1 November 2022
Bankruptcy petition deposit £990 £1,500
Winding Up petition deposit £1,600 £2,600

It should be noted that the increases only apply to the deposit, so the Court fee payable (in addition to the deposit) will remain the same at £302. This means the total disbursements payable when issuing a bankruptcy petition will be £1,802 and for a winding up petition it will be £2,902.

The Insolvency Service have justified the deposit increase by stating that deposit fees have not changed since April 2016 and Insolvency case numbers have fallen to a historically low level. This latter reason is slightly misleading because there was a moratorium on almost all creditor winding up petitions during the pandemic due to the Corporate Insolvency and Governance Act 2020.

In order to issue a winding up petition, a creditor must demonstrate that the debtor is insolvent – i.e they are unable to pay their debts on demand. This can be done in a number of ways, but we would recommend sending a draft winding up petition. A draft winding up petition is the process of creating a copy of the petition but the creditor holds off on sending it immediately to the Court. Instead it is sent only to the debtor with an accompanying letter warning them that if they do not settle the debt within a set time period (usually seven days) then the petition will be submitted at Court.

The benefits of issuing a draft winding up petition are as follows:

1. Debtors are often motivated to avoid Court proceedings and the liquidation process, and Lovetts have found that 81% of draft winding up petitions result in full payment of the debt.

2. A draft winding up petition does not adversely affect the debtor’s credit rating so can be seen as a ‘softer’ initial option that incentivises the debtor to pay before their credit rating is affected.

3. Issuing a draft winding up petition avoids Creditors having to immediately pay significant disbursements detailed above.

If you issue a full winding up petition, your costs can be recovered from the debtor in the event they make payment prior to the hearing. The petitioning creditor is also entitled to a refund of the deposit that they paid.

If you have concerns or you are seeking to take robust action in the form of insolvency action, contact us today.

Spire Healthcare Limited v  RSA [2022] EWCA Civ 17

Insurance policies commonly contain an aggregation clause, providing that two or more claims are to be treated as a single loss for the purpose of the deductible and policy limit where they are linked by a contractually-defined unifying factor.  Such clauses can have a major impact on the amount recoverable.

The issue in this case was whether losses must be aggregated when they arose from two very different  types of breach of professional duty by a single individual.

The Facts

Mr Paterson was a consultant surgeon at hospitals managed by Spire for some years, until he was suspended from practice by the General Medical Council.

A number of former patients, both private and NHS, who had been medically required to undergo mastectomies, claimed that Mr Paterson failed to remove all breast tissue, thereby exposing them to an unnecessary risk of recurrence and metastasis.  Mr Paterson’s motive for this practice of performing sub-total mastectomies, or “STMs”, was never adequately explained, although he may have regarded it as “cleavage sparing”.  The psychological and sometimes also the physical effects on the claimants were profoundly damaging.

Meanwhile, it was found, in relation to a second group consisting mainly of private patients, that Mr Paterson had falsely reported pathology test results as indicative of the presence of cancer and then carried out unnecessary surgical procedures on the patients concerned.  His motivation here appeared to have been financial gain.  The victims of this practice suffered assault and mental distress as well as economic loss.

In all, some 750 former patients made claims against Mr Paterson, Spire and the Foundation Trust that employed him for NHS work. The claims were managed in the form of group litigation, which was settled when a compensation fund was set up for the victims.  Spire’s outlay by way of defence costs and contribution to the fund was over £37m. 

The Insurance Cover

Spire had a combined liability insurance policy with Royal & Sun Alliance, covering its legal liability for accidental injuries arising out of medical negligence at its hospitals.  The policy provided that,

“The total amount payable by [the Insurer] in respect of all damages costs and expenses, arising out of all claims during any Period of Insurance consequent on or attributable to one source or original cause irrespective of the number of Persons Entitled to Indemnity having a claim under the Policy consequent on or attributable to that one source or original cause shall not exceed the Limit of Indemnity stated in the Schedule.” (Our underlining)

The limit of indemnity stated in the policy schedule was £10m and the policy was subject to an overall limit of £20m.

Whatever Mr Paterson’s motives may have been in carrying out the procedures, it was common ground that the injuries to patients were accidental from the perspective of Spire.   The sole issue before the Court of Appeal was whether the insurer could aggregate all the underlying claims together and rely on the limit of indemnity per loss of £10m, or whether there had been two originating causes of the losses and Spire could recover up to the overall policy limit of £20m.

The Decision

It is well established that clauses specifying that losses are to be aggregated where they are attributable to one original cause require the widest possible search to be made for a unifying factor in the history of the claims in question.  The original cause does not itself have to be an insured risk under the policy and it need not be the sole cause, but there must be a causative link between the original cause and the loss.  Moreover, the “original cause” as identified must not be expressed in such general terms that it fails to make clear the causal link between the original cause and the claim.

In Cultural Foundation v Beazley (2018) the Commercial Court had held that a claim against an architect for negligently designing defective structural engineering did not arise from the same original cause as a claim for failing to include in its designs detail and provision for the efficient execution of the project, which impacted only on cost. The two claims could not both be characterised in general terms along the lines of “poor initial design” since this was not useful in the context of searching for an effective original cause.

In the present case, the Commercial Court adopted the same approach, by focusing on Mr Paterson’s differing motivation: for Group 1, the original cause of the claims was Mr Paterson’s wrongful adoption of the practice of carrying out STMs; for Group 2, the original cause of the claims was Mr Paterson’s dishonest practice of  misrepresenting the need for  surgery.  Therefore, Spire was entitled to claim for two full losses, i.e. for £20m.

Decision of the Court of Appeal (CA)

However, the Court of Appeal analysed the matter from the perspective of how the claim was covered under Spire’s insurance.  The insurance did not cover any responsibility Spire might have for the negligence of surgeons or consultants.  Therefore, Spire’s ability to claim under the insurance depended on establishing its own negligence or the negligence of employed persons other than Mr Paterson.  This it did by persuading the insurers that (a) it was liable for the acts and omissions of one of its employees who facilitated and failed to report Mr Paterson’s conduct, (b) it had failed to investigate Mr Paterson’s conduct and take action and (c) it had breached an implied term to provide services to patients with reasonable skill and care. 

Based on this analysis and the caselaw requiring the widest possible search to be made for a unifying factor, the CA held that the Commercial Court’s decision had been wrong because the fact that Mr Paterson may have had differing motives in carrying out the injurious acts, and the fact that the claimants were in groups, had no bearing on Spire’s liability for the injuries sustained in consequence of the surgery that was carried out.  The CA held that the claims against Spire were all attributable to one original cause, namely Mr Paterson’s conduct in disregarding the welfare of his patients and performing operations on them without their informed consent. Therefore, Spire was only entitled to recover for one loss, up to the per loss limit of £10m.

For further information, please contact Wendy Miles, Chris Earl or William Sturge at Lovetts.

The risk of loss arising out of data breaches or cyber crime is now widely appreciated.  Such events are increasingly common.  Well-known recent examples include where:

‘Silent’ cyber coverage – The UK regulator has been seeking for some years to steer insurers away from unwittingly providing  ‘silent’ cyber coverage, that is, where the insured is able to argue that, although cover for cyber risks is not expressly referred to, the wording of a general insurance policy is sufficiently wide to cover such losses.  The consequence is that it has to be sensible to consider buying specific cyber insurance.

Points to look for when taking out insurance covering against cyber risks – Essentially, cyber insurance should provide cover against risks associated with data protection, information privacy, information governance and internet-based risks.

Crisis management – The cyber loss of greatest concern to many insureds is that arising from a breach of data protection obligations, whether this results from operator error, the deliberate act of a disaffected employee or the criminal activity of a third party.  A comprehensive cyber insurance will cover all three possibilities.

If such an incident occurs, the organisation affected may wish to have cover for retaining a specialist data breach response team to manage the problem and lead the response. The main areas that need to be covered are regulatory compliance, containment of the problem, protecting, securing and restoring the computer system, retrieving personal data, conducting a forensic investigation into the network failure, securing evidence, protecting the brand, notifying third parties whose data has been affected and dealing with the regulator over the incident and any penalties that may be threatened.

No doubt it is sensible to agree with the insurers a panel from which specialist advisers can be retained, in the knowledge of their charges and depending on the severity of the incident and availability.

The insurers’ agreement will normally be required before such advisers are instructed.  However, to cater for an urgent incident occurring when the insurers’ representatives cannot be contacted, the policy should allow the insured to incur emergency costs, up to a stated percentage of policy limits.

It is also necessary to clarify whether the cover is limited to restoring and replacing programs as they were at the time of the incident or whether it extends to replacing the system so that it complies with the latest standards of technical and resilient security, albeit for an equivalent computer device.

Ransoms and fines – The insured may wish the insurance to extend to cover any fines imposed by the authorities, to the extent that it is permissible to insure against such penalties. 

For cases of extortion, the insured will no doubt wish to have cover for the charges of specialist advisers to guide the parties as to credibility of the threat, the position on sanctions, the best way to resolve or mitigate the loss and to conduct any negotiations with the criminals.

However, the policy will probably reserve to the insurers the decision whether to pay the criminals’ demands.  If the decision was not to pay the ransom, and the criminals then took the threatened action, the insured could thereby find itself incurring substantial expense in defending claims, paying damages, dealing with the regulator and rebuilding the business.  Here, it may be worth taking out legal expense insurance against the need to pursue the insurer for its decision not to provide the policy benefit.

Defence of third party claims and regulatory investigations – The insured may wish the cover for defence costs to be available from the date of notifying the insurers of circumstances which may reasonably be expected to give rise to a claim, rather than from the date of any subsequent proceeding, particularly since the skilful handling of a matter at an early stage may lead to the matter never getting as far as proceedings.

Business interruption loss – It is possible to obtain business interruption cover for cyber risks even if there is no interruption to, or degradation of, the insured’s system.  This would be particularly helpful for the  insured for breaches relating to third party personal information, since such events could very well expose the Insured to prolonged reputational damage or a downturn in sales even where there was never any interruption to the insured’s processes.

Whether the policy should indemnify the insured for loss of gross profit or alternatively for loss of turnover is likely to depend on the nature of its business and the premium the insured is willing to pay.  Where cover is on a loss of gross profit basis, the issue for the insured would be how it would fund its fixed costs in the event of a prolonged loss of turnover.

Exclusions based on failure to maintain required security practices – Clauses in a policy wording that impose a general requirement to take reasonable precautions have been construed only to relieve insurers of liability where the loss is caused by actual recklessness on the part of the insured. The rationale for this is said to be that, unless some restriction is placed on such clauses, the insurers would be able to escape having to pay a claim whenever they can establish negligence on the part of the insured, which will usually be the very conduct that the policy is desired to cover.  

However, clauses excluding cover if specific security practices are not followed may be upheld as drafted, particularly if the court considers such clauses to define the scope of cover.

The proposal, assessing the underwriting risk and premium rates – Specialist organisations monitor the internet, including dark web forums and markets, for new strains of malware and criminal techniques.  Subject to considerations of confidentiality, the information thus obtained is capable of being used during the period of an insurance to strengthen the security of an insured’s network and its products. Use of this type of analysis could enable the insured to negotiate a lower premium.

For further information, please contact Wendy Miles, Chris Earl or William Sturge at Lovetts.

On 31st January 2022, the Government published a consultation paper that proposed to weaken passenger rights and slash flight compensation amounts. Accordingly, Lovetts Solicitors, one of the leading law firms in the field of flight compensation claims, has appeared as signatory to a letter Which? sent to the Government opposing these plans

It is of deep concern that the Government is bowing to pressure from airlines to weaken passenger rights, amid some of the worst disruption seen at airports across the UK in years.

In recent weeks hundreds of flights have been cancelled and thousands of travellers have been affected by chaotic conditions as airlines and airports have struggled with staff shortages.

Under current legislation, passengers are able to claim between £220 – £520 in compensation for these delays and cancellations, going some way towards covering the additional costs incurred by passengers and reflecting the inconvenience caused. However, the Government are currently proposing to slash this to an average of £16 – £65. The upsetting scenes at UK airports have shown why passenger rights must be strengthened not weakened.

In an impact assessment, the government admitted the plan came after lobbying from low-cost airlines, which claimed compensation fees amount to up to three per cent of their annual turnover. However, there was no evidence produced to back up these claims. The impact assessment calculates total compensation amounting to £10.6 million of compensation paid out of a possible £16.3 million each year. An example would be to compare this to the turnover of easyJet up to 30th September 2019 which was £6.3 billion. Even if easyJet were liable for all compensation (which it wouldn’t be) and paid 100% of £16.3 million to passengers, it would only amount to less than 0.3% of turnover.

Prior to sending the letter, Which? challenged seven airlines to a right of reply – BA, EasyJet, Jet2, Ryanair, TUI, Virgin Atlantic and Wizz Air – asking them to provide information about flights potentially affected by compensation and the amounts they have paid out in recent years. However, none would reveal how much they pay out to passengers, with some citing commercial sensitivity.

Despite the lack of evidence, the Government proposes to save airlines at least £4.7 million a year to the detriment of passengers under these proposals.

In order to protect consumers, Which? wrote to Transport Secretary Grant Shapps with Lovetts Solicitors and other travel industry leaders as signatories. The letter urges him to abandon the proposed reforms. A copy of the full letter and signatories is detailed below:

Dear Secretary of State,

We write as consumer groups and businesses looking to work with your Department and regulators to build the travel industry back better post-pandemic; and enhance consumer protections at a time when budgets are tighter and many are planning to travel for the first time since the pandemic began.

We recognise the immense task you face working with regulators and industry to get the travel industry back on its feet. However, if the sector is to fully recover, the serious limitations and inconsistencies of the current regulatory and enforcement framework need to be addressed as part of your department’s long-term vision, helping rebuild consumer and business confidence. In order to create a well functioning and competitive market, it is essential that travellers can book with confidence, are protected when things go wrong, and have high levels of trust in the regulators and businesses that serve them.

We therefore warmly welcome the fact that your department has consulted on how consumer protections can be improved, including increasing the powers of the Civil Aviation Authority (CAA) and mandating alternative dispute resolution (ADR) in the aviation sector. We agree these reforms are needed and vital for building consumer protection and trust.

However we are of the view that other proposed reforms do not demonstrate a complete understanding of how the sector works and what consumers need. The DfT proposals on compensation, as also set out in the Aviation Consumer Policy Reform consultation, would in our view be a retrograde step. We are concerned that overall the proposals will leave most consumers whose flights are delayed worse off compared to the current compensation regime; and crucially, they will significantly weaken the financial deterrent which is currently a key aspect of the legislation to prevent airlines from delaying, cancelling or overbooking flights for commercial reasons.

We believe that it is imperative that consumers are offered the right protection that firstly ensures any disruption, inconveniences or losses they experience are minimised, and secondly, ensures that they are appropriately compensated when these do occur. The hollowing out or abandoning of the safeguards contained within the EC261 compensation regime would be a retrograde step, one that will lead to a further degradation in trust in airlines and hamper the recovery of the wider travel industry. We therefore urge you to urgently re-think these plans to change compensation rules under EC261, as presented in the consultation.

For businesses and consumers, it is vital to have a clear strategy from the Government that takes into account the views of businesses and consumer groups operating in the sector. We urge you and your department to work closely with other departments such as BEIS and regulators like the CAA and CMA, to design a joined-up strategy; ensuring any future reforms of consumer rights in travel, including potential review of the Package Travel Regulations, create a coherent and comprehensible set of protections for consumers.

We look forward to working with you to rebuild the travel industry and consumer confidence in it, and are determined to support the delivery of this. By working together we are confident that we can create a travel market that works for both businesses and consumers.

We look forward to hearing your response.

Michael Higgins, Managing Director of Lovetts Solicitors says

“As we have seen recently, cancellations and significant flight delays cause considerable distress to passengers and results in them often losing time on holiday and creating memories with their families. £16 would not sufficiently compensate them for that distress.

If compensation is reduced, airlines will be able return to the days of making commercial decisions to delay and cancel flights that aren’t full to capacity to maximise sales and profits to the detriment of consumers. This would damage the UK’s reputation with passengers across the world.

Airlines are not significantly impacted by the current flight compensation regulations. If all claims were paid out, which they are not, it would only equate to the equivalent of 85p per flight ticket.

Lovetts Solicitors are proud to be a signatory to the letter Which? sent to the Government and we will do everything we can to protect consumer rights in respect of flight compensation.”

In light of the above, Which? and Lovetts Solicitors will continue to campaign on behalf of consumers to ensure that their rights are protected in respect of flight compensation.

Notes to editors 

Lovetts Solicitors are a specialist debt recovery law firm based in Guildford, Surrey that has been operating since 1994. It is one of the leading law firms in the field of flight compensation claims. If further comment is required, please contact Michael Higgins, Managing Director of Lovetts Solicitors by calling 01483 457500 or emailing [email protected]

A full list of signatories to the letter were:

Rocio Concha

Director of Policy and Advocacy

Which?

Sam Seward

Managing Director

Exodus Travel

Jean-Phillipe Monod

SVP Global Government & Corporate Affairs

Expedia Group

Michael Edwards

Managing Director

Explore 

David Harrington

Chief Executive Officer

HF Holidays

Joe Ponte

Chief Executive Officer

Hotelplan UK

John Mansell

Chief Operating Officer

Inghams Esprit and Santa’s Lapland

Emma Gray

Managing Director

Inntravel

Michael Higgins

Managing Director – Solicitor

Lovetts Solicitors

Simon Cooper

Chief Executive Officer

On the Beach Group plc

Commercial Rent (Coronavirus) Act 2022

Under the Commercial Rent (Coronavirus) Act 2022, which came into force on 24 March 2022, a statutory arbitration regime has been introduced for resolving disputes relating to arrears of rent owed by businesses required to close for a period during the pandemic, this now being known as the period of ‘protected rent’. 

The pre-existing moratorium on landlords’ remedies for rent arrears due under business tenancies has been lifted.  However, the Act introduces a fresh six month moratorium from 24 March 2022 in respect of protected rent arrears.

The new procedure provides a means of resolving disputes over protected rent arrears by reference to who, as between the landlord and the tenant, is most able to ‘take the hit’.  The procedure may well result in arrears of rent being wholly or partly written off, or becoming payable only over time.  That said, there are constraints and limits on the new procedure which can protect the position of landlords.

How the statutory arbitration regime works

The Act requires the parties to go through a compulsory pre-arbitration stage, following which either the landlord or the tenant may invoke the arbitration procedure.  This type of arbitration must be commenced within six months of the coming into force of the Act, i.e. by 23 September 2022.

Protected rent –  If the dispute does proceed to arbitration, the statutory regime provided for under the Act is confined to arrears of protected rent, that is rent due in respect of a specific period, relating to the period of mandatory closure of businesses by the authorities.  For premises in England, the period is 21 March 2020 to 18 July 2021.  For premises in Wales, the period is slightly different.

The viability principle – In order to proceed with the arbitration, the arbitrator must establish that the tenant’s business is viable or would become viable if the tenant was given any kind of relief from payment. 

The affordability principle – The procedure requires the party commencing the arbitration to submit formal proposals for payment, accompanied by evidence as to its financial position.  The idea here is to establish why the tenant cannot pay the full amount, but can pay the amount proposed. The respondent party may also submit proposals and evidence.  The parties may subsequently submit final proposals.  Certain contingencies, such as the possibility of borrowing or re-structuring a business, must be disregarded.

The award –  The arbitrator decides the matter by applying certain principles, the first of which is that awards should be aimed at preserving or restoring the viability of a tenant’s business, so far as is consistent with preserving the landlord’s solvency. 

A second principle is that tenants should be required to pay protected rent in full and without delay.  This means that tenants who can pay the protected rent should do so.

If the arbitrator permits the tenant to pay arrears of protected rent by instalment, the repayment period cannot extend beyond 24 months from the date of the award.

The general effect of this statutory regime is that, in appropriate circumstances, tenants may be given relief from paying arrears of protected rent, their entitlement to such an outcome depending on their and their landlord’s respective financial positions.

The award takes effect as if it alters the terms of the tenancy in respect of the protected rent. Therefore, tenants and other persons such as a guarantor or a former tenant will not be in breach of covenant and so at risk of forfeiture for failure to pay the rent if the tenant complies with the award.

Confidentiality – It is clear that an arbitration of this type could result in the disclosure to the arbitrator and the other party of confidential information.  By contrast, arbitrators are required to publish their awards which must set out their reasoning.  The Act requires arbitrators not to include confidential information; that is, commercial information the disclosure of which might significantly harm the legitimate business interests of the person to whom it relates, or information relating to the private affairs of an individual the disclosure of which might significantly harm that individual’s interests.

Fees – The party instituting the arbitration is required to pay the arbitration fees in advance.  The general rule is that, at the time of making the award, these will be allocated 50/50 between the parties.   However, the arbitrator has a discretion as to the allocation of arbitration fees and, if he or she exercises that discretion, can also vary the general rule that each party will bear its own costs of the arbitration.

Choice of arbitrator – Under this type of arbitration, the parties do not have the ability to appoint a chosen individual as arbitrator.  Arbitrators are appointed by applying to one or other of seven arbitration bodies approved by the Secretary of State for Business, Energy and Industrial Strategy, amongst these bodies being the Chartered Institute of Arbitrators and the Royal Institute of Chartered Surveyors.

These bodies, supervised by the Secretary of State, may in a particular case appoint a single arbitrator or a panel of arbitrators, who must as usual act impartially and independently from the parties.  Arbitrators must also be qualified to conduct the arbitration and must in fact conduct the arbitration in a proper manner.

For further information, please contact Michael Higgins, Wendy Miles, Chris Earl or William Sturge at Lovetts

Philipp v Barclays Bank, The Consumer Association intervening (Ct of Appeal, 2022)

Summary

‘Authorised push payment‘ (‘APP’) fraud, as it is known, is the situation where the victim is deceived into transferring money away to an account controlled by a fraudster.  It is one of the biggest types of fraud reported by the UK banking and financial services sector.

Various voluntary codes of practice (notably the 2017 BSI Code of Practice and the CRM Code introduced in 2019) have been developed within the financial services industry to compensate customers, albeit subject to their terms and conditions.

Meanwhile, victims of APP fraud should be assisted by the recent case of Philipp v Barclays Bank, in which the Court of Appeal has clarified that the circumstances where customers are owed a legal duty of care are wider than many previously understood.  As one of the barristers said in another recent case, it is sound policy that, in the fight to combat fraud, banks with reasonable grounds for believing that a payment instruction is an attempt to misappropriate funds should not sit back and do nothing.

Case note

Mrs Philipp was a music teacher and her husband a retired physician.  A fraudster tricked them into believing that they were cooperating with the Financial Conduct Authority, the National Crime Agency and the Fraud Department of HSBC.  The fraudster persuaded the couple to transfer in excess of £700,000, being the bulk of their life savings, into Mrs Philipp’s account at Barclays and thence to accounts in the United Arab Emirates.  By the time the fraud was discovered, the money had gone.

There was a dispute as to whether the bank had asked any safeguarding questions or given any scam warnings.

Mrs Philipp brought an action against the bank for breach of a duty of care, which duty was to be implied into her contract with the bank under the common law, or pursuant to section 13 of the Supply of Goods and Services Act 1982.  The duty was characterised as a duty to observe reasonable care and skill in executing her instructions.  Mrs Philipp’s case was that the bank ought to have had in place policies and procedures to detect and prevent potential APP fraud and reclaim monies subject to it.

The bank’s case was that it did not owe such a duty. The bank also took a point on causation, arguing that Mrs Philipp and her husband had been so thoroughly deceived that they did not trust the police or the bank and were lying to the bank about the purpose of the transfer.  Thus, even if the bank had delayed the transaction, asked questions to get to the bottom of what was going on, arranged for Dr and Mrs Philipp to meet the police and then given warnings,  Mrs Philipp would have gone ahead anyway.

The bank applied for ‘summary judgment’, that is, to strike out Mrs Philipp’s claim on the basis that the court could decide without a trial that there was no duty of care in these circumstances. 

The Commercial Court agreed with the bank and struck out the action.   

Mrs Philipp appealed. The Consumers’ Association (Which?) was then granted permission to intervene, supporting the appeal and contending that the court should recognise a duty of care in the circumstances.

The leading case in this area of the law is Barclays Bank v Quincecare (1992).  In that case, a dishonest company chairman gave payment instructions resulting in the misappropriation of funds from his company.  The court held that the bank would be liable to compensate Quincecare if it executed an instruction to pay out funds knowing it to be dishonestly given, or shut its eyes to the obvious fact of the dishonesty, or acted recklessly in failing to make such enquiries as an honest and reasonable bank would make; and the bank should refrain from executing an order if and for so long as it was put on enquiry by having reasonable grounds for believing that the order was an attempt to misappropriate funds. In such cases it is not the original dishonesty, but the bank’s subsequent negligence in dealing with the payment order that is to be regarded as causing the loss.

Applying the duty of care identified in Quincecare to the present case, the Court of Appeal held that the existence of this duty is not confined to ‘internal frauds’ by employees against their company, or to cases where it can be said that in truth the actual customer never gave a payment instruction.  The correct analysis is that a bank is under a primary duty to execute orders promptly.  However, the bank has another duty which operates in tension with that primary duty, to use reasonable skill and care in executing the customer’s orders.  If the bank is actually aware that a payment instruction is an attempt to misappropriate funds, it will very probably be liable if it simply pays out.  If the bank’s state of knowledge as to the dishonesty or otherwise of the order is less clear than that, the bank is required to refrain from executing the order if and for so long as the circumstances would put an ordinary prudent banker on enquiry.  The circumstances in question would be the existence of reasonable grounds for believing that the order is an attempt to misappropriate funds.  The standard of conduct required of the bank is that of the law of negligence.

The Court of Appeal therefore held that a relevant duty of care could arise in the case of customers who are the unwitting victims of APP fraud themselves instructing their bank to make a payment, provided the circumstances are such that the bank is on enquiry that executing the order would result in the customer’s funds being misappropriated. 

The court went on to hold that the right occasion to decide whether such a duty arose in the present case was at a trial. 

The bank had argued that the duty of care contended for would have been unworkable and onerous in practice.  However, the court considered that there was ample evidence that this was not the case and that the proper place to resolve this issue too was at a trial.

Accordingly, the order to strike out which the bank had obtained was set aside.  The parties could now pursue the resolution of their dispute on the basis that the law recognises that banks can indeed owe a duty of care to the victims of APP fraud.

For further information, please contact Wendy Miles, Chris Earl or William Sturge at Lovetts.

Corbin & King and Others v AXA Insurance (2022, Commercial Court)

Summary

Contrary to two previous court decisions, although a NDDA clause was held to provide cover for localised occurrences interfering with a business, in light of the Supreme Court decision in FCA v Arch, the clause was held to provide broader cover than that in the case of disease occurring more widely.  Covid-19 was thus held to fall within the phrase ‘a danger or disturbance at your premises or within a 1 mile radius of your premises’ in a Denial of Access BI cover.  The court held that cases of the disease within the radius constituted a danger and, coupled with other uninsured but not excluded danger constituted by the disease outside the radius, had led to regulations which caused the closure of the insured businesses and the business interruption loss.

Case note

A combined business insurance policy, including cover for property damage and  business interruption, was issued to Corbin & King restaurants and other establishments for the period of one year from November 2019.

Access to certain of the insureds’ premises was subsequently restricted or hindered as a result of government regulations imposed in response to the covid-19 pandemic, first by a period of forced closure, then by an enforced closing time and after that by a further period of forced closure.

The insureds submitted claims under a clause in the Business Interruption section of the policy in the following terms:

“Denial of access (non-damage) cover

We will cover you for any loss insured by this section resulting from interruption or interference with the business where access to your business is restricted or hindered for more than the franchise period [2 hours] shown in your schedule arising directly from:

  1. the actions taken by the police or any other statutory body in response to a danger or disturbance at your premises or within a 1 mile radius of your premises.
  2. the unlawful occupation of your premises by third parties

Provided that …

We will not cover you where access to your premises is restricted or hindered as a result of  … (4) notifiable diseases as detailed in the Murder, suicide or disease cover …”

The insureds contended that they had coverage because there were cases, or the threat of cases, of covid-19 within a one mile radius of each of their premises and this, combined with cases elsewhere in the UK, was an effective cause of the making of the regulations which led to the restriction of access to each of the premises.

By contrast, AXA contended that the cover provided by a NDDA clause is qualitatively different from that provided by a disease clause.  The NDDA clause only provides a narrow form of cover in respect of ‘a danger or disturbance’ specific to the locality of the insureds’ premises, as opposed to a nationwide state of affairs.  The paradigm type of incident covered is a nearby structure at risk of collapse.  AXA argued that the insureds could only recover if they could demonstrate that it was the presence of the risk of covid-19 at the insureds’ premises or within a one mile radius, as opposed to the country as a whole, which led to the regulations.

The decision

In preferring the insureds’ argument, Mrs Justice Cockerill held that this clause provides a localised cover, but one which is capable of extending to disease occurring widely.

The judge began by considering  whether she was bound by the findings of the Divisional Court in FCA v Arch, which had not been appealed on this point, that clauses similar to the one in the present case, covering dangers within a specified radius, had a narrow, localised focus and did not indemnify the insured against business interruption losses caused by regulations introduced to cover the pandemic as a whole.  She held that she was not so bound.  This was because the wordings considered by the Divisional Court were sufficiently different for her to proceed from first principles. 

Further, in FCA v Arch the argument in the Divisional Court had proceeded on the assumption that such clauses contained a  “but for” test of causation, i.e. in order for there to be coverage, the position had to be that, but for the occurrence of the insured peril, the insured’s business would not have been interrupted.  That reasoning could not stand given that, on appeal, the Supreme Court had ‘moved the goalposts’ by finding that a broader test of causation applied generally in the case of disease, such that cases of covid-19 occurring within the radius were a concurrent cause of the restrictions along with all the other cases outside the radius.  In coming to her conclusion, the judge noted that Lord Mance, a member of the Supreme Court but on this occasion sitting as a sole arbitrator, had come to a conclusion similar to hers in September 2021 in ‘The China Taiping Arbitration’.

From that point, Cockerill J found that:

Insurer, Axa, has said it does not intend to challenge the court of appeal judgment.

For further information on business interruption insurance, please contact William Sturge at Lovetts. by email [email protected] or by telephone on 01483 457500.