Pandemic liability: British pub owners have clarity after the ruling – the liability dispute continues in Switzerland

On the island, a state authority ensures that the mill of the judiciary does not paint until all the stains have shut down.

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It will soon be a year since Switzerland experienced its first two-month lockdown. Thousands of catering entrepreneurs have been struggling to survive since then. Many will not hold out until summer if the business climate does not improve soon thanks to vaccinations and the weather.

It is therefore all the more important for the hosts concerned to clarify their liability claims from epidemic and hygiene policies quickly and legally. Many pickers have taken out such policies. However, no court in this country has yet determined whether they are entitled to compensation for the state-ordered business interruption.

The Baden lawyer Volker Pribnov, who supports restaurateurs in the liability dispute with various insurance companies, is waiting for a first judgment from the commercial court of the Canton of Aargau. A landlord is suing «Helvetia», which does not see itself in the obligation to pay. “Maybe the verdict will come tomorrow, but maybe not until the summer, I don’t know,” says Pribnov.

British pub owners at least know where they are

The British landlords are economically no better off than their colleagues in Switzerland. But at least the pub owners now know what to expect from their insurance. The “Supreme Court”, the highest court on the island, clarified in a reference judgment last week who should insist on a liability claim with their insurer and who is not worth the effort.

To get straight to the point: Most businesses affected by a pandemic can expect compensation. We’re talking about 370,000 SMEs that bought over 700 different policies from around 60 different insurers.

The British regulator is responsible for clarifying the legally highly complex situation quickly. With a view to the exceptional situation caused by the pandemic, the “Financial Conduct Authority” (FCA) called the “Financial Market Test Scheme” for the first time, which gives the supervisory authority the basis for clarifying contractual ambiguities in the insurance market in court.

“There was a widespread fear that the insurance companies would do everything they can to fail to meet their obligations,” explains Paul Lewis, a partner at the London law firm Herbert Smith Freehills, which works for the FCA. The rapid judicial clarification saves enormous costs for the insured, who otherwise would have had to fight for their rights individually or with the help of the industry association.

This is exactly what the affected companies in Switzerland have to do. Small businesses in particular are at a disadvantage. Various large insurance groups offered them cash payments in the summer in order to settle any claims for compensation from epidemic policies from the time of the lockdown “pragmatically” and “quickly”. In addition to some really serious comparison offers, these included many “voluntary” compensation offers, which were extremely poor in the judgment of those affected and their legal representatives.

Disastrous game of cat and mouse

Nevertheless, many beizers have also accepted these offers for lack of money. In doing so, however, they took the chance for themselves to take legal action to obtain the insurer’s performance owed. The British innkeepers should be much better off at least in this respect. The rapid intervention of the supervisory authority prevented the cat-and-mouse game between the insurance company and the insured, as it has been played in this country for a year.