Two Dublin pub owners that successfully challenged FBD’s failure to pay out on business disruption claims caused by Covid-19 have “substantially settled” most of their outstanding legal issues against the insurer, the High Court has heard.
The remaining issues between the insurers and Dublin bar owners Aberken, trading as Sinnott’s Bar; Hyper Trust Ltd, trading as The Leopardstown Inn, which were two of four parties that took test actions against FBD, largely revolve around the quantum of losses that are to be paid to the publicans.
Michael Cush SC for the two publicans told Mr Justice Denis McDonald on Thursday that following lengthy and detailed out-of-court discussions the insurers and his clients had “substantially settled” most of what remains between them.
Certain things, counsel added, did need to be finalised and he asked the court to adjourn the case to Friday morning.
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Counsel said that both sides were also asking the judge to clarify and, if needs be, to make certain declarations on certain legal principles contained in any final settlement agreement put before the court by the parties.
Counsel, appearing with James Doherty SC, said the court was being asked to do this because the outcome of any settlement concerning the quantification of losses was highly relevant to the hundreds of other pubs and restaurants that were in the same position as his clients regarding the business disruption claims.
Declan McGrath SC, for FBD, told the court that his side required the court to clarify certain aspects of the agreement with the two, due to the “wider implications” for the insurer.
Counsel said that FBD was concerned that, without such clarifications from the court, the large amount of resources it has expended dealing with the actions might be “effectively wasted”.
Mr Justice McDonald welcomed the fact that the parties were close to finalising a settlement which he said was “very encouraging” and adjourned the matter to Friday.
He also said the court was inclined to hear submissions from the parties on the legal principles involved before issuing any clarifications or declarations on the agreement.
Complex proceedings
The judge had previously urged the parties to try and settle the remaining differences between them in what he said have been lengthy and complex proceedings, where the court has already delivered three judgments.
Last year the judge ruled in the lead actions, which had implications for more than100 bars and restaurants, that a policy sold by FBD covered losses pubs sustained by having to close due to the pandemic.
The test cases were brought by four pub owners, including Aberken and Hyper Trust.
The two other parties, Inn on Hibernian Way Ltd, trading as Lemon & Duke in Dublin, and Leinster Overview Concepts Ltd, the owner of Sean’s Bar, in Athlone, Co Westmeath, had earlier resolved the majority of their outstanding claims against FBD.
Issues over the legal costs of those two parties’ proceedings against FBD remain pending before the court.
In his judgment last year, the judge disagreed with FBD’s interpretation of its business disruption policy regarding Covid-19 and ruled in favour of the four publicans.
The pub owners had 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.
The publicans claimed that their insurance policies entitled them to have their consequential losses covered.
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”.
The judge said that cover was not lost in such circumstances.
