Corbin & King Limited and subsidiaries (Corbin & King) were owners and operators of 12 well-known restaurants, cafes and other establishments in and around London, including The Wolseley and The Delaunay. On 7 February 2020, AXA Insurance issued to Corbin & King a Business Combined Insurance policy for the period 12 November 2019 to 11 November 2020 (the Policy).
The Policy contained a NDDA clause in the following terms:
“We will cover you for any loss insured by this second resulting from interruption or interference with the business where access to your premises is restricted or hindered for more than the franchise period 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.
1 The insurance provided by this cover shall only apply for the period starting with the restriction or hindrance and ending after 12 weeks during which time the results of the business are affected
2 Our liability for any one claim will not exceed the limit shown in your schedule.
We will not cover you where access to your premises is restricted or hindered as a result of:
1. Physical damage to property at your premises or elsewhere
2. Strikes, picketing labour disturbances or trade disputes
3. The condition of or the business conducted within your premises, or any other premises owned or occupied by you
4. Notifiable diseases as detailed in the Murder, suicide or disease cover
5. Actions where you have been given prior notice.”
Corbin & King claimed under the Policy for business interruption losses arising out of access to premises being restricted or hindered as a result of government regulations to combat COVID-19, which imposed the following ‘restrictions’:
- The first lockdown from 20 March 2020 until 4 July 2020 (the 21 and 26 March 2020 and 4 July 2020 Regulations).
- Early closing times of 10pm from 24 September 2020 (the 24 September 2020 Regulations).
- The second lockdown from 5 November 2020 to 2 December 2020 (the 5 November 2020 Regulations).
AXA Insurance denied cover, which led to proceedings being commenced in the English High Court that were expedited for determination in light of the fact that the issues would affect a range of other businesses.