AXA declines to appeal Wolseley Covid-19 BI judgment test case, leaving the hospitality sector hopeful of recovering their losses

AXA recently announced that it would not appeal the Commercial Court judgment handed down on 25 February 2022 in relation to the Corbin & King restaurant group v AXA. The court held that the Non-Damage Denial of Access (NDDOA) clause in AXA’s policy did in certain circumstances provide cover for losses where access to the insured premises was restricted or hindered due to Government action in response to the pandemic.

At the time of the judgment, Roger Franklin commented “This judgment is a very important step for Policyholders in their efforts to recover the losses they have suffered, and continue to suffer, as a result of Covid-19.  Those in the hospitality sector have been particularly hard hit, and this decision will be significant for many of them.”

The judgment may affect not only those restaurants, bars and cafes with similar NDDOA clauses in their business interruption insurance, but also other similar businesses that were forced to shut by the Government during the pandemic, including nightclubs, betting shops, hair salons, gyms and auction houses (a full list below).

What you should do now

If your business has suffered serious losses as a result of the Covid-19 pandemic and your claim was denied by your insurer, we can review the constituent elements of your NDDOA clauses in light of the judgment. In the first instance, please contact Roger Franklin or any member of our Insurance Litigation team and we can advise on your available options.

Edwin Coe LLP specialises in representing policyholders against insurers and acted for Corbin & King and its various subsidiaries in this matter.

 

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The affected businesses

1. Restaurants, including restaurants and dining rooms in hotels or members’ clubs.
2. (1) Cafes, including workplace canteens (subject to sub-paragraph (2)) but not including—
   (a) cafes or canteens at a hospital, care home or school;
   (b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
   (c) services providing food or drink to the homeless.
   (2) Workplace canteens may remain open where there is no practical alternative for staff at that workplace to obtain food.
3. Bars, including bars in hotels or members’ clubs.
4. Public houses.
5. Cinemas.
6. Theatres.
7. Nightclubs.
8. Bingo halls.
9. Concert halls.
10. Museums and galleries.
11. Casinos.
12. Betting shops.
13. Spas.
14. Nail, beauty, hair salons and barbers.
15. Massage parlours.
16. Tattoo and piercing parlours.
17. Skating rinks.
18. Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities.
19. Funfairs (whether outdoors or indoors).
20. Playgrounds, sports courts and outdoor gyms.
21. Outdoor markets (except for stalls selling food).
22. Car showrooms.
23. Auction Houses.

Source: Paragraph 52 [2020] EWHC 2448 (Comm)