July 04, 2023 court of first instance - Orders
Claim No. CFI 073/2022
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
COURT OF FIRST INSTANCE
BETWEEN
LALS HOLDING LIMITED
& THE COMPANIES IDENTIFIED IN SCHEDULES 1-3 OF THE CLAIM FORM
Claimants
and
(1) EMIRATES INSURANCE COMPANY (PSC)
(2) SIACI INSURANCE BROKERS LLC
Defendants
ORDER OF H.E. JUSTICE NASSIR AL NASSER
UPON the Case Management Conference held before H.E. Justice Nassir Al Nasser on 13 June 2023
AND UPON the Court indicating that the hearing of the preliminary issues should be conducted as soon as possible, and preferably in September 2023 (the “Hearing”)
IT IS HEREBY ORDERED THAT:
1. The following issues shall be determined by the Court as preliminary issues (the “Preliminary Issues”):
1.1 The proper construction of the Customer Extension Clause, in particular:
1.1.1 Whether the concept of "loss or damage" relates to physical loss or damage only.
1.1.2 Whether the requirement for “loss or damage” is satisfied by: (i) a closure order (including “stay at home” advice or order, a “lockdown” order or “curfew” order or similar) as a result of a case of COVID-19 either within 2 kilometres of a customer’s premises or, alternatively, at a customer’s premises; and/or (ii) a closure or sealing off of a customer's premises (including “stay at home” advice or order “lockdown” order or “curfew” order or similar) within the meaning of the Loss of Attraction Clause.
1.1.3 Whether the term "Customer" extends to retail customers who would have or would have been expected to have (habitually) attended the Claimants' premises to purchase goods and services.
1.1.4 Whether the Claimants are required to prove specifically (i.e. by identifying particular customers) or generally (i.e. by proving only that there were such customers on the balance of probability) “which customers” they rely upon who by reason of a peril insured by the Policies did not purchase goods or services from the Claimants.
1.2 The proper construction of the Closure Clause, in particular:
1.1.1 Whether the relevant order must be from local and National Health Authorities, Competent Government, Public or Statutory Authorities.
1.1.2 Whether the Closure Clause provides cover for closure as a result of infectious or contagious disease.
1.1.3 Whether any requirement that there be infectious or contagious disease at or within a radius of 2 kilometres of any of the “insured’s business” requires the Claimants to prove a case of COVID-19 at or within 2 kilometres of any of the premises at which the Claimants carry out business, or at or within 2 kilometres of the particular premises ordered to close.
1.3 The proper construction of the Loss of Attraction Clause, in particular:
1.1.1 Whether it provides cover limited only to a specific local incident where the police or a statutory authority seal or close up a particular premises, or whether it responds to a national or regional governmental response to a global pandemic.
2. The parties are to agree a set of assumed facts (if so required) in relation to the preliminary issues by 4pm on 11 July 2023.
3. The parties are to liaise with the Registry within 14 days to obtain a fixed date for the Hearing of the Preliminary Issues, in accordance with the recital to this Order.
4. The estimated length of the Hearing of the Preliminary Issues is 2 days with a further day in reserve, plus one day of time allocated to the Judge for pre-reading.
5. Agreed Hearing bundles shall be lodged by no later than four weeks before the first day of the Hearing of the Preliminary Issues.
6. Skeleton Arguments shall be filed and served three clear days before the start of Hearing.
7. Liberty to reconvene the Case Management Conference.
8. Costs shall be costs in the case.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 4 July 2023
At: 8am