FBD costs hearing in July must finish within two weeks

A July hearing to determine the amount of losses incurred by four publicans, who won test actions over FBD's failure to pay out on business disruption claims caused by Covid-19, must finish within the allotted two weeks, a High Court judge has said.

Mr Justice McDonald said on Wednesday it would not be possible to extend the hearing into August, due to a lack of judicial resources,

He also criticised "unhelpful" and "counterproductive" correspondence concerning legal costs issues between solicitors for two of the publicans in the case, Aberken and Hyper Trust, and FBD.

Such exchanges should be conducted in a professional and business-like manner, he said.

The content of the correspondence was not outlined in court but counsel for the parties said they would take the judge’s comments on board.

The test actions were taken by three Dublin bars: Aberken, trading as Sinnotts Bar; Hyper Trust Ltd, trading as ‘The Leopardstown Inn’, and ‘Inn on Hibernian Way’ Ltd, trading as Lemon & Duke in Dublin. The fourth action was by Leinster Overview Concepts Ltd, owner of Sean’s Bar, based in Athlone, Co Westmeath.

In his decision on liability issues earlier this year, which affects similar claims by some 1,000 Irish pubs and restaurants, the judge found a policy sold by FBD covered losses that pubs sustained by having to close due to the pandemic.

When the matter returned before him on Wednesday, he was told the consequent hearing to determine the amount of losses, will commence on July 6th. He warned, due to demand on the High Court’s Commercial Court list, he will only be available to hear the matter for two weeks.

Progress

The court also heard progress was being made between the parties on a variety of issues arising out of the proceedings, including final orders from previous judgments in the litigation, costs and issues relating to the quantum hearing.

In his February judgment, the judge disagreed with FBD’s interpretation of its business disruption policy regarding Covid-19.

He said cover is not lost where the closure is prompted by nationwide outbreaks of disease provided there is an outbreak within a 25-mile radius and that outbreak is one of the causes of the closure.

In a subsequent judgment, the judge ruled on what interpretation should be applied to the term ‘closure’ within FBD’s Public House Policy of insurance, which is relevant to quantifying the losses.

He found “closure” is not confined to a total shutdown of the insured properties premises, but extends to a closure of part of the premises.

He also ruled the pubs are entitled to their legal costs, but not on the highest scale as they had sought. That ruling was subject to any position taken by the Central Bank, he added.

The Central Bank recently informed the parties that it expects FBD to pay all “reasonable costs” incurred by the publicans.