Decision in FBD pub insurance case due in new year

Judgment will be given on four important test cases brought by pub owners over Insurer FBD's refusal to pay out on business disruption over the covid-19 pandemic early in the New Year.

The four publicans have brought cases challenging FBD Insurance Plc's refusal earlier this year to indemnify them, and the insurer’s stance that its policies of insurance do not cover the disruption caused to businesses by Covid-19.

Over 1000 Irish pubs and bars are affected by the dispute which arose after the insurer refused to provide them with cover since the pandemic resulted in the temporary closure of businesses in mid-March.

On Friday afternoon, following the conclusion of the three-week hearing the presiding judge Mr Justice Denis McDonald said he hoped to be in a position to deliver his decision in Mid-January.

The tests cases were brought by four pubs arising out of FBD's refusal to indemnify them for the disruption to their businesses due to Covid19.

The actions have been taken by 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.

The fourth action was taken by Leinster Overview Concepts Ltd the owner of Sean's Bar, which is based in Athlone Co Westmeath.

Each of the pub owners taking the test cases claim that under their policies of insurance taken out with FBD they are entitled to have their consequential losses covered by what they claim is an insurable risk.

They also claim that by failing to pay out on the policy the insurer is in breach of contract.

The publicans claim the policies taken out with FBD contain 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."

FBD disputes that claim and says the closures did not occur as a result of an outbreak of disease at the premises or areas where the pubs are located.

FBD also told the court that it has never provided cover for pandemics and no one in Ireland has ever asked for it.

The general insurance market in Ireland does not insure against events like pandemics, it claims.

Only specialist brokers, which he said are based overseas, on a bespoke basis offer an insurance policy that cover the fall-out from something like covid19, FBD also argued.

Following the conclusion of the proceedings the trial Judge Mr Justice McDonald praised the providers of a new computer system which allowed the lengthy trial be provided through an on-line video link.

"The system worked well," the judge said at the conclusion of an action which saw witnesses examined and cross examined via a video link.

In addition to Mr Justice McDonald, and the parties involved in the case, other senior members of the Irish Superior Court have praised the court specific system.

TrialView, a private company set up by its CTO Frank Brooks and Stephen Dowling SC, is a specially designed system that allows to court proceedings to be done remotely.

This is particularly important given the uncertainty created by the covid19 pandemic and the decision to conduct more hearings via video links.

The service is paid for by a party or parties involved in litigation, but is tailored to allow external parties such as the members of the media observe the proceedings. 

However, it differs from other similar providers in that it allows all the documents in the case to be seen by the participants as well as those observing the case on line.   

The courts were asked by the Commercial Litigation Association and the Law Society to consider TrialView as unlike other systems in sue to facilitate remote hearings it is specifically designed for the hearing of court cases.

The action involving the pubs and FBD was the first major case where the system has been fully used.

There are plans in place that will see TrialView used in further actions pending before the courts.