Helpfully the court also decided that these clauses were triggered from the point in time when there were cases of disease in the relevant policy area (the test generally being whether the cases were diagnosable, whether or not actually diagnosed).
This means proving cases in any given area should be far easier and there will be no need to evidence diagnosed cases within the specified distance of a business.
Insurers have conceded that evidence including NHS Deaths Data, ONS Deaths Data and reported cases of Covid-19 are, in principle, capable of demonstrating the presence of the notifiable disease.
This is an important practical concession over an issue that was very hard fought before trial. Whilst insurers did not suggest that absolute precision is required on evidence and proof, we will still have to monitor how this is implemented in practice through the claim handling process.
Prevention of access
The second type of clause considered was those that cover loss as a result of people not being able to access a business due to actions/advice/restrictions imposed by the authorities.
Typically this is to cover loss for more limited events such as the police cordoning off an area due to an event such as terrorism, a fire, or the risk of a collapsing building. The Court considered that these clauses were more restrictive.
For example, if they refer to closure due to an ‘incident’ that means a specific localised event, not an ongoing disease pandemic.
Some of these clauses also refer to advice of a local authority but some to restrictions imposed. Some restrictions were considered by the court to be advice (the ‘stay at home’ advice on 16, 20 and 23 March) whereas other restrictions were created by mandatory government regulations, such as the closure of shops.
The type of wording that an insured has will therefore matter very much when considering what denial of access cover they have.
Whether cover is available will depend on the precise terms of the policy and the application of the government advice or regulations to the insured’s particular business, such as whether their business was directly required to close or was affected by the more general ‘stay at home’ request.
For example if a restaurant had to close fully due to the regulations made on 26 March then cover may arise, but where a take away continued to offer some service then they might not qualify because access to premises was not in fact totally prevented.
