COVID19 AND BUSINESS INTERRUPTION, THE DEBATE RAGES ON
Nov 01, 2020

One of the most hotly debated issues in the short term insurance world at present, is the nature and extent of an insured’s cover under what are termed Infectious or Notifiable Disease extensions in certain indemnity insurance policies (the standard all risk policy that most businesses have in place). There have been at least three matters that have come or are currently being considered by our Courts regarding various Insurer’s liability under and in terms of these extensions. The first of these matters to be determined, which was ruled upon by the Western Cape High Court (per Le Grange J) in Cafe Chameleon CC v Guardrisk Insurance Co Limited is set to be heard on appeal by a full bench of the Supreme Court of Appeal on 23 November 2020. There are at least two other matters, yet undecided, which are currently before full benches of the High Court. 


The provision in question, relates to the business interruption section of the policy which is voluntary cover obtained to protect an insured against the business having to temporarily cease operation. In ordinary claims, such as those caused by fire for instance, an insured who has taken business interruption cover, would be covered against the physical damage caused by the fire itself as well as the business’s loss of profit for the period during which the business was forced to close whilst repairs were completed. 


Enter the novel coronavirus (SARS-CoV-2) and the path of destruction it has and continues to leave in its wake. National lock downs have been imposed globally including in South Africa restricting, and in most cases completely prohibiting, the operation of businesses deemed to be ‘non-essential’, imposing travel bans stifling the hospitality and tourism industry; and forcing restaurants, even under level 3 of Government’s risk adjusted strategy, to remain closed other than for delivery or take-away. Even under level 1, these businesses are required to operate at less than capacity with strict safety protocols being imposed.


As a proprietor or shareholder of one of these businesses, one would not have been remiss in breathing a deep sigh of relief at reading that you are covered for interruption to your business caused by infectious disease, invariably assuming that interruptions caused by Covid-19, an infectious disease determined to be notifiable by the National Institute for Communicable Diseases, would be covered.

Unfortunately, as with most insurance cover, it is not quite as simple as that. Insurance companies are being faced with a flood of claims due to a risk that has not been seen on this scale for more than 100 years. A number of significant questions have been begged worldwide as to what duty insurers have to their clients to step up and assist, particularly when many of these clients face the stark reality of having to close their doors with the attendant impact, that this would have on the surrounding communities who rely on these companies for employment. Ironically, standard business interruption clauses usually exclude any cover should the insured be placed into liquidation. An irony which is likely not to be much appreciated by those facing the decision of throwing in the towel or waiting for a binding determination on the issue. 

 

On the other hand, the response from almost all (barring one or two Insurer), has predictably but quite unfortunately been a slew of very narrowly interpreted opinions which unsurprisingly have concluded that they are not liable in terms of the infectious disease clauses for the majority of disruptions caused by COVID19. Whilst the precise wording of the clause will be critical in interpreting the extent of cover, the four most prevalent defences to such claims, are: (1) the infectious disease clauses do not cover global pandemics but only localized outbreaks (despite no such express differentiation being made in the wording), based on the prevalence of words such as “an outbreak of which the competent local authority has stipulated shall be notified to them”, the argument being that if a global pandemic were envisaged the words would not be limited to a local authority; (2) it is not the virus that has caused the loss but the lockdown which is a risk not covered under the policy; (3) that if the business had to close because there was an outbreak within a defined radius, it had to be that specific incidence which caused the closure rather than a closure due to the general prevalence of the infection; and (4) Covid19 is not an identifiable disease as contemplated by the definition of same contained in the policy wording. The definition that appears in at least two similar policies is “Notifiable Disease shall mean illness sustained by any person resulting from any human infectious or human contagious disease an outbreak of which the competent local authority has stipulated shall be notified to them excluding Acquired Immune Deficiency Syndrome (AIDS) or an AIDS related condition”. Needless to say, it is difficult to engage with these arguments without at least some cynicism.


The retort by one hotel group, supported by a team of arguably the finest legal minds in the Country, is that the particular insurer’s reliance on the abovementioned arguments are entirely indefensible, a view that seems to have been independently echoed by the Court in Café Chameleon and by Lord Justice Flaux and Mr Justice Butcher in a recent decision of the British High Court of Justice (Queens Bench). 


Many believe that insurer’s attempts to hide behind restrictive and narrow interpretations of these clauses is aimed at avoiding large scale payments rather than an earnest belief that the clause was not intended to cover Covid19 as a global pandemic. It is indeed unfortunate that insurers guided by their reinsurers have elected to hide behind narrow contractual interpretations rather than meaningfully contributing to the relief effort at a time when their financial strength is most desperately needed by their loyal customers.


Whilst it must be said that certain insurers have offered relief in the form of ex gratia payments pending the final determination of the issue by the Courts, many see this as an attempt to save face under steadily mounting pressure from the public and private sector rather than a genuine attempt to assist.

Perhaps now is the time for some introspection for the industry as a whole which rather than taking up the cudgel, seems to have adopted a far less magnanimous position. Whether this position is ultimately justifiable, will in all likelihood be a decision for the apex court in due course. This will however be cold comfort to the lodges, game reserves and hotels that are battling to keep their staff employed and their doors open.

PROCEEDINGS IN SOUTH AFRICA LEAD TO PROCEEDINGS IN THE NETHERLANDS

19 Feb, 2024
Client Background: Client Profile: Our Client, a Dutch Shipbuilder and his companies, owns and manages a shipyard as the second generation of the family that started the shipyard. The shipyard is one of the oldest shipyards in the Netherlands. The business, situated in Sliedrecht in the southwest of Holland, began as a small shipyard offering general repairs and maintenance services to various shipping companies and has expanded to a large shipyard over 90 years with two floating docks and offering in addition to repairs and maintenance, conversion, construction, and design of new parts for ships. Challenges Faced: In mid-2009, 12 barges, a pontoon and two halves of floating dock that the Dutch Shipbuilder and his companies had ordered the construction of in China, were stranded at JacobsBaai on the West Coast of South Africa and were lost. This loss arose from the tugboat operator and owner’s negligence in towing these items from China to Rotterdam. The Dutch Shipbuilder had arranged financing from his bank for the purchase of these items. His bank assisted him with the negotiation of the contracts for the construction, the arrangement of insurance, as well as the final arrangements for the towing of the constructed items from China to Rotterdam, representing themselves as experts in doing so. The Dutch Shipbuilder completely trusted his bank with whom he had a relationship for numerous years. Given the bank’s failure to inter alia put proper insurance in place, a settlement agreement was then concluded between the Dutch Shipbuilder and his companies, and his bank, following the calamity, in which the bank agreed to assist him in pursuing an action in South Africa against the tug-boat operator and owner to recover the loss. The key component of the items constructed was the two halves of a floating dock, which was destined to be moored and operated in Sliedrecht Holland to expand the operations of the shipyard, which was fully supported by the local, regional and state authorities. Action was instituted against the tugboat operator and owner for damages in an amount of €42 million, which included a claim for loss of profits suffered from the loss of the two halves of the floating dock. By the beginning of 2015, some 6 years later, the attorneys who had been appointed by the Dutch Shipbuilder had not progressed the action to a point where it was ready to go to trial. ASG was approached by the Dutch Shipbuilder to take over the case from the existing attorneys. ASG took over the case in May 2015, and the action was settled in September 2016. The Problem: Legal Issues: What did not form part of the settlement was the loss of profit claim in respect of the two halves of the floating dock as the bank refused to assist the Dutch Shipbuilder in providing evidence that he had applied for finance to order a replacement of the two halves of the floating dock to mitigate his loss. However, the Dutch Shipbuilder had indeed done so and, as such, the bank’s refusal to assist him breached its obligation to do so in terms of the settlement agreement and its duty of care as banker to its customer in terms of the Dutch laws. In 2017, on advice from ASG the Dutch Shipbuilder agreed to pursue his bank for damages arising from their breach of the settlement agreement in the Dutch Courts. ASG was instructed to formulate the claim and work with Dutch advocates to do so. The amount claimed from the bankers was €10,609,527 alternatively, €6,293,046. The Dutch Shipbuilder’s bankers raised a counterclaim of €2.75 million plus interest and costs claiming that it was entitled to be paid this amount in terms of the settlement agreement it had concluded with the Dutch Shipbuilder and his companies. In 2018, the Dutch Shipbuilder and his companies were ordered to pay €2.75 million plus interest and costs in terms of judgments of the Central Netherland District Court Utrecht. Impact: The many years of legal proceedings in South Africa, without support from the bank who had undertaken to provide the financial support for the proceedings, had taken a major toll on the Dutch Shipbuilder both financially and personally. The Dutch Shipbuilder, now diagnosed with cancer, and his wife who had supported much of his legal costs financially, were determined that ASG should appeal the judgment to preserve what little relief to their financial loss the settlement in the tugboat operator case in South Africa had brought. Our Approach: Strategic Analysis: ASG knew that to win an appeal, they would need one of the senior employees of the bank to confirm that there was an agreement by the bank to fund the litigation in South Africa to recover the cost and loss of income incurred by the shipyard from the tugboat owner. Solution: Through thorough investigation and unearthing vital correspondence, it was discovered that a former senior employee of the bank that had been approached previously to provide a witness statement, was willing to do so, as the Dutch shipbuilder had in fact approached him to seek financing to procure a replacement floating dock. He had been prepared to provide a witness statement previously, but had been forbidden by the bank to do so. Execution: Legal Actions Taken: Subsequently in 2018 notification was given of an appeal being raised. This was followed by witness hearings in November 2019 and in January 2020. The evidence given by witnesses at the witness hearings provided vital evidence to establish that the bank had indeed prevented evidence being provided with regard to the assistance for the Dutch shipbuilder in the South African proceedings, and that the bank had also lied to the court in Utrecht.  Pleadings were then filed in the appeal to deal with the merits of the appeal and not the quantum of the claim. Results Achieved: At the hearing, the judges of appeal expressed their disapproval of the way in which the bank had conducted itself and suggested the parties attempt to reach a settlement. A settlement agreement was concluded in terms of which the bank agreed to waive its claim against the Dutch Shipbuilder and his companies in full and final settlement. Sadly, the Dutch Shipbuilder had passed away before the outcome of the appeal. May he rest in peace as he was much loved by all who came across him.

REPRESENTING JOINT CURATORS OF A PENSION FUND IN THE GAUTENG HIGH COURT

19 Feb, 2024
Client Background: Client Profile: Our client, a senior attorney who is very experienced in curatorship of Pension Funds and the various acts that impact the administration of pension funds, was appointed as the provisional curator of a pension fund in December 2010. The Fund was placed in provisional curatorship following an investigation by the Financial Services Board given irregularities in the conduct of the business and affairs of the Fund by its trustees and improper use of the Fund’s monies. The provisional order, granted on 21 December 2010, provided for the former trustees of the Fund to pay the costs of the curatorship, and appointed a provisional curator to administer and investigate the affairs of the Fund. Challenges Faced: After the provisional order was granted, the former trustees of the Fund resigned, and newly appointed trustees brought a counter application to seek the removal of the provisional curator on the basis that he was conflicted. They, however, did not oppose the necessity of the Fund being placed under curatorship, and nominated persons not experienced in pension fund administration to be appointed as curators of the Fund. During the proceedings, it was found by the High Court that the newly appointed trustees had brought the counter-application at the behest of the former Chairman of the Fund that had always controlled the affairs of the Fund prior to it being placed into provisional curatorship. The High Court in Johannesburg granted an order placing the fund into final curatorship, confirming the final appointment of the provisional curator as the curator (our client), and confirming that the former trustees of the Fund were obliged to pay the costs of the curatorship. The Problem: This judgement was then taken on appeal to the Supreme Court of Appeal where the final appointment of the curator was hotly contested. At the hearing, the parties agreed to an order that two curators be appointed together with the original curator appointed by the High Court, and that all issues of costs were referred to determination by the High Court afresh. The above process took some seven years at substantial cost to the Fund and its members. Our Approach: Even though the Financial Services Board was the applicant in the original application to place the Fund into curatorship, it had not taken steps to set the matter down in the High Court for the issue of costs to be determined as per the order of the Supreme Court of Appeal. These included the curatorship costs already awarded by the High Court, but which had been referred for determination by the High Court afresh by the Supreme Court of Appeal. On advice from ASG, the curators of the Fund instructed ASG to set down a determination of the costs in the High Court in 2021, including the curatorship costs, which at that stage was some R45 million. Execution: The Judge allocated to the matter raised at the first hearing the question whether the issue of costs was not to be determined by the Supreme Court of Appeal. The Supreme Court of Appeal then subsequently stated the obvious - that it had referred the issue of costs to the High Court to determine the same afresh. Rather unfortunately, thereafter, the Judge postponed the matter and called for a report from the curators on the costs. Despite having postponed the hearing yet again, the Judge subsequently in the further hearing, confirmed his error in requesting such a report from the curators which was not at all relevant to the determination of the matter. On 19 May 2023 the High Court confirmed that the former trustees of the Fund are obliged to pay all the costs of the curatorship, which at the time of the final hearing amounts to in excess of R60 million, primarily arising from extensive litigation that has arisen at the hand of the former Chairman of the board of trustees of the Fund, who plundered the Fund for his own benefit prior to the Fund being placed in curatorship. The judgment of the High Court is currently the subject matter of applications for leave to appeal which have not yet been heard.
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