A High Court judge has expressed his disappointment that a further hearing is required to resolve outstanding issues between publicans and FBD insurance over the quantum of losses to be paid out for the disruption of business caused by Covid-19.

The remarks were made by Mr Justice Denis McDonald who was told that while some progress had been made, certain issues could not be agreed between the parties.

A further hearing before the High Court was needed to resolve these issues, the court heard.

The court was also told that the State may need to be included in the proceedings as one of the issues between the sides had to do with subsidies paid by the government during the lockdown.

Last year the judge ruled that a policy sold by FBD covered losses pubs sustained by having to close due to the pandemic.

The 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 other issues between the parties involved.

However, the court has heard issues concern the amount of losses the publicans are entitled to be paid has be resolved.

When the matter was last before the judge, he urged the parties to work together to try and resolve the issues between them.

On Thursday when the matter returned before the court the judge was informed by counsel for the parties that despite the fact the progress had been made in certain areas, it had not been possible to reach agreement on all the outstanding issues.

The judge said he was “disappointed’ that further court time was required and as he had hoped that the court’s previous decisions would have resolved such matters.

The judge added that recent correspondence between the parties on these issues that had been put before the court was “very disappointing” and “not very helpful at all”.

He said that he had to stop reading the correspondence after a certain point.

He again urged the sides to co-operate on matters.

The judge also noted that one of the issues that remains live in the long running proceedings concerns subsidies paid to publicans by the government during the pandemic.

It may be necessary to add the state to the proceedings, the judge was told.

The judge adjourned the action to a date in May, when he hoped to be able to know if the case can be heard before the summer recess commences in August, and how long the proceedings would take to hear.

The judge said he wants the parties to inform the court in precise detail what needs to be resolved by him.

He agreed that the matter should be dealt with as soon as possible.

Legal submissions

The judge added that while he was not ruling it out completely, he was not inclined to hear any further evidence from the parties, and that the hearing, when it is fixed, should proceed by way of legal submissions.

He also agreed with the parties that the matter needed to be heard as soon as possible.

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

He said that 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 FBDs 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”.