A High Court judge has said he wants to see some progress regarding the outstanding issue of the quantum of losses to be paid to publicans who successfully challenged FBD’s refusal to pay out on business disruption claims caused by Covid-19.
Mr Justice Denis McDonald found last year that a policy sold by FBD covered losses pubs sustained by having to close due to the pandemic.
His judgment, which affects claims made by some 1,000 Irish pubs and restaurants, was made in test actions brought by three Dublin bars: Aberken, trading as Sinnott’s bar; Hyper Trust Ltd, trading as the Leopardstown Inn; and Inn on Hibernian Way Ltd, trading as Lemon & Duke in Dublin. Leinster Overview Concepts Ltd, the owner of Sean’s Bar, which is based in Athlone, Co Westmeath, is the fourth party involved in the lead cases against FBD.
The judge has also delivered subsequent judgments clarifying certain issues between the parties involved.
However, the issue concerning what level of losses the publicans are entitled to be paid has yet to be resolved.
At the High Court on Thursday the judge urged the parties to take steps to resolve the outstanding issue of the quantum of the payout the pub owners should get from FBD.
The judge also said that he agreed with a suggestion by Declan McGrath SC for FBD that the best way to advance matters regarding quantum would be for the various sides’ experts to meet in the absence of solicitors and clients.
Counsel said the meeting of experts could set out which figures are agreed and which ones are in dispute.
Forensic accountants
While he was not going to attempt to micromanage, the judge said that a meeting of forensic accountants representing the various parties could help to being about a resolution in relation to the issue of the quantum of what the publicans should be paid.
The judge, noting that the proceedings have been going on for some time, said he was not making orders on how the sides should engage with each outside of the court nor trying to micromanage matters.
However, the judge said he wanted to see that progress is being made to resolve the issue of quantum when the matter returns before the court next month.
In his judgment last year Mr Justice McDonald 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 if there is an outbreak within the 25-mile radius and that outbreak is one of the causes of the closure.
The publicans challenged FBD’s refusal to indemnify them, as well as the insurer’s claim its policies did not cover the disruption caused by Covid-19.
They claimed that under their policies of insurance they were entitled to have their consequential losses covered by the insurer.
FBD claimed the policies contained a clause that states the pubs will be indemnified if their premises were closed by order of the local or government authority if there are “outbreaks of contagious or infectious diseases on the premises or within 25 miles of same”.
