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

[2017] EWCA Civ 4097, Lord Justice Treacy, Lord Justice David Richards and Sir Christopher Clarke, 11 August 2017

Insurance (business interruption) - Claims cooperation clause - Requirement for assured to submit proofs 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

Ted Baker plc (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. Condition 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 condition, in that TB had failed to provide copies of its profit and loss accounts for 2005 to 2008 if available; and absence of proof of loss.