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FBD seeks to have evidence ruled inadmissible over alleged 'leaks'

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Rob Kearney, Seán O’Brien, Jamie Heaslip and Dave Kearney with Lemon & Duke managing director Noel Anderson

Rob Kearney, Seán O’Brien, Jamie Heaslip and Dave Kearney with Lemon & Duke managing director Noel Anderson

Shuttered: Lemon and Duke is one of the pubs taking action against FBD

Shuttered: Lemon and Duke is one of the pubs taking action against FBD

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Rob Kearney, Seán O’Brien, Jamie Heaslip and Dave Kearney with Lemon & Duke managing director Noel Anderson

FBD is considering an application for contempt of court over an alleged leaking of documents relating to a case being taken by four publicans against the insurer over its refusal to pay out for losses incurred by the Covid pandemic.

Dublin pubs Sinnotts, Lemon & Duke and The Leopardstown Inn, and Athlone-based Sean’s Bar are suing FBD in the Commercial Court as they believe their policies covered the disruptive impact of Covid-19 on their businesses.

Declan McGrath, a senior barrister representing FBD, raised the alleged contempt issue after Mr Justice Denis McDonald ruled in the publicans’ favour regarding the admissibility of documents concerning FBD’s exposure in respect of the business interruption claims.

Mr McGrath said he was again seeking to have this evidence ruled inadmissible as he claimed that some of these documents had already found their way into the public domain and this should not have occurred as they were not opened in court.

Contents of the documents appeared in a number of media articles, he said.

Mr McGrath alleged this mounted to a breach of an undertaking.

Michael Cush SC, representing three of the Dublin pubs involved in the case, described it as a “serious allegation”.

Judge McDonald said that while he was not looking at any particular party, the matter needed to be investigated.

On day two of the hearing, the court heard how a side letter furnished on March 2 to Noel Anderson, co-owner of Lemon & Duke, stated: “Our VFI/DPU policy which your policy will be written under is covering coronavirus and it is the amount specified in the policy, the pub must be forcibly shut down and cannot be voluntary”.

The letter was sent by FBD employee Paul Shanahan after Mr Anderson sought assurances Lemon & Duke would be covered by coronavirus before taking out a policy with FBD. Mr Shanahan said he was “not the type of person to pull the wool over anyone’s eyes”, adding “I had no reason to think that cover for Covid-19 was not available under the public house policy”.

Counsel for FBD today said that no business in Ireland has ever asked for pandemic cover, nor has FBD ever provided it.

Judge McDonald interrupted to point out that The Inn on Hibernian Way, trading as Lemon & Duke, had sought it.

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“Mr Anderson can be complimented for his foresight, but it was foresight which arose after the commencement of the pandemic. It was after events in China and Europe, when he was seen what was happening around the world, that he asked about the cover,” Mr McGrath said.

Evidence that nobody has ever asked for a policy that covers a pandemic would subsequently be provided to the court, he added.

FBD is arguing it should not have to payout as, in its view, the policy only covered local outbreaks of a disease and not a pandemic.

The insurer also believes it should not have to cover all losses related to Covid-19. FBD’s position is that the closure of bars was not due to an outbreak of Covid on the premises or within 25 miles, but because of the “national situation”.

Eoin McCullough, a senior barrister representing Sean’s Bar, described this reasoning as “wrong”.

“The policy is clear and unambiguous. The wording is entirely that of FBD,” he said.

All of the pubs are arguing their policies have a clause which states they were to be indemnified if their premises were closed by order of a local authority or Government if there are “outbreaks of a contagious or infectious disease on the premises or within 25 miles of same”.

They alluded to a recent High Court decision in the UK where it was ruled that the pandemic should result in pay-outs to holders of business interruption policies.

The UK’s Financial Conduct Authority (FCA) brought the case on behalf of policyholders across the country.

This decision is currently being appealed to the Supreme Court.

The hearing continues.


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