Will Guardrisk triumph after all? Café Chameleon court battle continues

The court battle between insurance beast Guardrisk and small business Café Chameleon continues. After applying for leave to appeal the last judgement made against it, Guardrisk will be heard by the Supreme Court next month. Having followed the entire business interruptions ordeal closely, expert Tony Clulow provides a concise update on the proceedings. He also questions whether the recent FCA rulings in the UK will have any bearing on this particular case. – Claire Badenhorst

Moment of truth for Guardrisk

By Tony Clulow*

Nico Schoeman, the proprietor of Café Chameleon, using the services of attorney Ren Dunster, instituted proceedings against Guardrisk. On 26 June, 2020 Judge Andre le Grange held that Guardrisk was obliged to indemnify Café Chameleon for losses caused by Covid-19, including those resulting from the National Lockdown. Guardrisk applied for leave to appeal against this judgement. It is now confirmed that such appeal will be heard by the Supreme Court of Appeal on 23 November, 2020.

The Appeal Judges will, of course, consider the Café Chameleon judgement on its merits. It is hard, however, to imagine they will not take into account the English judgement in Financial Conduct Authority v Arch Insurance and Others given by Lord Justice Flaux and Mr Justice Butcher.

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Guardrisk contended that the Café Chameleon policy covered only local outbreaks and not lockdown measures imposed by the state, alleging there were other policies available specifically designed to cover state action. The English judges considered policies with similar wordings and held the proximate cause of the business interruption was the notifiable disease, of which the individual outbreaks formed indivisible parts.

Of the eight disease wordings considered by the English judges, they found six gave cover for actions by the state. The wording of the two which it was held did not cover lockdown measures made it clear that cover was extended only for individual occurrences. While the Guardrisk wording was not identical to any of the eight wordings considered, it is very different to the two policies which covered only individual occurrences.

• Tony Clulow is an attorney, in Pinetown, KwaZulu-Natal