Marlin Apartments Ltd trading as Marlin Hotel Dublin v Allianz Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 23 April 2025
• Neutral Citation: [2025] IEHC 226
• Court: High Court
• Docket Number: Record No. 2021/1485P

Between

Marlin Apartments Limited Trading as Marlin Hotel Dublin

Plaintiff

and

Allianz Plc

Defendant

[2025] IEHC 226

Record No. 2021/1485P

THE HIGH COURT

COMMERCIAL

Insurance policy – Extensions of cover – Business interruption – Plaintiff seeking to be indemnified by the defendant – Whether an undiagnosed or asymptomatic case of COVID-19 at the hotel premises caused the Government imposed restrictions on the use of the hotel

Facts: The High Court (McDonald J) addressed two further issues which had been raised by the defendant, Allianz plc, in relation to the implications of his principal judgment ([2024] IEHC 550) for other claims made under Extension 6 of the Allianz business policy arising from interruption of an insured’s business as a consequence of Government imposed restrictions on the use of the insured’s premises in response to the COVID-19 pandemic. First, the defendant wished to explore whether, for the purposes of causation, there is a cut-off date in the context of the three restriction orders in issue in the proceedings such that any cases of COVID-19 which occurred prior to that date could not be said to have caused the Minister for Health to make those orders. The second issue related to how far a policyholder can go to make a case that an infection, which is diagnosed or otherwise becomes apparent after the making of a restriction order, can be said to have occurred prior to the making of that order.

Held by McDonald J that any cases of COVID-19 shown to be present on the premises of an insured in the period between midnight on 9 December 2020 and 22 December 2020 all formed part of the cases which caused the Minister to enact the Third Restriction Order. However, McDonald J could see no basis on which it could be suggested that the enactment of the Third Restriction Order was caused by cases of COVID-19 which occurred prior to midnight 9 December 2020. That seemed to McDonald J to follow from the decision of the Minister on 17 December 2020 to further relax restrictions. McDonald J held that if a policyholder can show that a person was on the insured premises on the day a restriction order was made and that person was later diagnosed as suffering from COVID-19 within five days after the making of the restriction order or was otherwise shown to be suffering from COVID-19 within that five day period, that occurrence of COVID-19 should be accepted as having occurred prior to the making of the restriction order such that it can be considered to be part of the cohort of cases of COVID-19 which led to the making of the restriction order in question. McDonald J held that the same principle should also apply where an infected person is shown to have been on the insured premises 24 hours before the making of the restriction order; in that event, the relevant post-order period to consider would be up to four days. In turn, McDonald J held that if the infected person was on the insured premises 48 hours before the restriction order, the relevant post-order period would be up to three days. He held that the post-order period would be reduced to two days if it transpired that the infected person was last on the insured premises 72 hours before the making of the restriction order; similarly, it would be reduced to one day, if the infected person was last on the insured premises 96 hours before the making of the order.

McDonald J held that declarations should be made reflecting those findings.

Relief granted.

JUDGMENT (No. 2) of Mr. Justice Denis McDonald delivered on 23 ^rd April 2025

Introduction

1 . This judgment is supplemental to a judgment previously given by me in these proceedings on 19 ^th September 2024 ( [2024] IEHC 550) (which I shall refer to as “my principal judgment”). In this judgment, I address two further issues which have been raised by the defendant in relation to the implications of my principal judgment for other claims made under Extension 6 of the Allianz business policy arising from interruption of an insured's business as a consequence of Government imposed restrictions on the use of the insured's premises in response to the COVID-19 pandemic.

2 . In this context, the defendant is obliged pursuant to the Central Bank of Ireland COVID-19 and Business Interruption Insurance Supervisory Framework published in August 2020 ( “the Supervisory Framework”) to consider the extent to which my principal judgment has wider implications beyond the specific circumstances of the plaintiff's case. In particular, the defendant is required under the Supervisory Framework to analyse, determine and furnish details to the Central Bank of the following:-

• (a) Whether the final outcome of these proceedings has a wider beneficial outcome for groups of customers similar to the plaintiff; and

• (b) the remedial action which the defendant proposes to take to ensure that the beneficial outcome of the proceedings is applied to groups of customers in a similar position to the plaintiff.

Background

3 . In order to understand how the issues arise, it is necessary to recall a number of features of this case. Under Extension 6 of the Allianz policy (which is set out in full in para. 3(a) of my principal judgment), cover is available in respect of losses arising from an interruption of or interference with the business carried on by the insured at the insured premises in consequence of any occurrence of a notifiable disease at the premises which “causes restrictions on the use of the premises on the order or advice of the competent authority”. COVID-19 was designated as a notifiable disease on 20 ^th February 2020. Thereafter, a number of orders were made by the Government (or by the Minister for Health) which had the effect of interfering with the business of hotels, bars and restaurants and other premises open to the public. In this case, the insured premises comprises a hotel with an inhouse restaurant and bar. The hotel was subject to three periods of restriction 1 as a consequence of orders made by the Government or the Minister for Health. The first period of restriction commenced on 15 ^th March 2020 when the Government issued an instruction to public houses to close. That period of restriction continued until 29 ^th June 2020 (albeit that the extent of the restrictions were varied from time to time over the course of that period). There was then a second period of restriction which commenced on 19 ^th September 2020 and continued until 3 ^rd December 2020 2. This was followed by a third period of restriction which commenced on 24 ^th December 2020 3 under an order made by the Minister for Health on 23 ^rd December 2020.

4 . The plaintiff claimed that, in the lead up to each of these periods of restriction, there were one or more cases of COVID-19 at its premises and that those cases were causative of the relevant government restrictions. However, in my principal judgment, I came to the conclusion that there was no evidence of any such cases at the hotel in the lead-up to either the first round of restrictions imposed in March 2020 or the second round of restrictions imposed in September 2020. On the other hand, I came to the conclusion that, in relation to the third period of closure, there were at least two cases of COVID-19 at the insured premises in the period prior to the making of the order on 23 ^rd December 2020 imposing restrictions with effect from 24 ^th December 2020. In this context, it was an agreed fact that the hotel manager tested positive for COVID-19 on 23 ^rd December 2020 (following a test on 22 ^nd December 2020) and that he had not left the hotel building during the preceding fortnight. I came to the conclusion that, having regard to the incubation period for COVID-19 (which is a three to five day period) the manager must have been infected, at the latest, by 19 ^th December 2020 (i.e. three days before his test). I also concluded that, in circumstances where the hotel manager did not leave the hotel premises in the fortnight before 23 ^rd December 2020, there must have been a second case of COVID-19 at the premises prior to the making of the restriction order on 23 ^rd December 2020 and that this second case led to the infection of the manager.

5 . For reasons which are explained in my principal judgment, I concluded that the restriction order made by the Minister for Health on 23 ^rd December 2020 was caused not just by those cases of COVID-19 that were reported to the Minister at that time but also unreported or unknown cases of COVID-19. Thus, for the purposes of the plaintiff's case, it did not matter that the Minister may have been unaware of the positive test for the manager on 23 ^rd December 2020 (since that test would not have been reported by that time) or that the Minister was unaware of the case of COVID-19 which led to the manager's infection. Accordingly, I concluded that the plaintiff was entitled to recover under the policy in respect of the losses sustained by it as a consequence of the restrictions imposed by the order made on 23 ^rd December 2020. That conclusion disposed of the case brought by the plaintiff. However, the defendant now wishes to explore the extent to which the judgment can be used to determine its liability to insureds in other circumstances. In making this application, the defendant has very properly acknowledged that it is impossible to anticipate every potential scenario where an entitlement to cover might be said to arise. However, there are two specific matters on which the defendant seeks further guidance from the Court.

The additional issues on which the defendant seeks rulings from the Court

6 . In the first place, the defendant wishes to explore whether, for the purposes of causation, there is a cut-off date in the context of the three restriction orders in issue in these proceedings such that any cases of COVID-19 which occurred prior to that date could not be said...