TED BAKER PLC AND ANOTHER V AXA INSURANCE UK PLC AND OTHERS

[2014] EWHC 3548 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Eder, 30 October 2014

Insurance (business interruption) - Claims cooperation clause - Requirement for assured to submit proof as might reasonably be required by insurers - Whether clause broken - Effect of breach - Burden of proof - Effect of per loss deductible - Calculation of loss of gross revenue

TB was insured against business interruption losses under a series of policies in the years 2004 to 2008. The policies covered loss of gross revenue in the indemnity period on an all risks basis, subject to a per loss deductible of £5,000 and to an exclusion for mysterious disappearance of goods. Special Condition 2 imposed two relevant conditions precedent to cover: 2(b)(i) provided that in the event of a claim, the insurers had to be informed of any loss within 30 days from the expiry of the indemnity period or within such further time as the insurers might allow; and 2(b)(ii) provided that TB was to deliver to the insurers such financial information as might reasonably be requested by the insurers. Goods were stolen from TB's London warehouse over the period 2004 to 2008. Claims for the years 2005 to 2008 were notified to the insurers in February 2009, and the assured was informed by the loss adjusters on 24 March 2009 that further instructions were awaited from the insurers. Liability was denied on 28 May 2009 on the basis that employee theft was excluded. In Ted Baker plc v AXA Insurance UK plc [2013] Lloyd’s Rep IR 174, Eder J ruled on a trial of preliminary issues that employee theft was within the scope of cover. In October 2012 TB added a claim for losses occurring in 2004. The insurers denied liability on two further grounds: breach of the claims conditions; and absence of proof of loss.