FCA Test Case Supreme Court Judgment

Supreme Court hands down its judgment

On 15 January, the Supreme Court handed down its judgment on the FCA’s business interruption test case.

It remains the case that most SME business interruption (BI) policies are focused on property damage and only have basic cover for BI as a consequence of property damage, so are unlikely to pay out in relation to the COVID-19 pandemic and its effects.

Some policies contain ‘non-damage’ related extensions of cover for business interruption, such as infectious or notifiable diseases (disease clauses) and denial of access or public authority closure or restriction clauses (denial of access clauses). The FCA argued that some policy wordings with disease or denial of access clauses do provide cover.

Following the judgment, the FCA advised “The judgment says that most, but not all, of the disease clauses in the sample provide cover. It also says that certain denial of access clauses in the sample provide cover, but this depends on the detailed wording of the clause and how the business was affected by the Government response to the pandemic, including for example whether the business was subject to a mandatory closure order and whether the business was ordered to close completely.”

Clients who have made claims that are affected by the test case will be contacted by their insurer to discuss what the judgment means for their claim. The Association of British Insurers has stated that “All valid claims will be settled as soon as possible and in many cases, the process of settling claims has begun.”

It is important to note that the Supreme Court judgment does not mean cover will apply in every circumstance or under every policy.

Since 15 January, many insurers have posted policyholder updates in response to the Supreme Court judgment. We have indicated where an update has been provided since 15 January. This page was updated on 25 January and will be reviewed regularly, so do check back from time to time.

We are continuing work with insurers to get a resolution as quickly as possible. You can visit the FCA’s business interruption hub for more information here.

FCA Test Case updates since 15 January

Ageas Insurance Limited *Updated

AIG

Allianz Insurance Plc *Updated

Allied World

Ansvar Insurance *Updated

Arch Insurance (UK) Limited *Updated

Argenta *Updated

Aviva Insurance Limited *Updated

AXA Insurance UK Plc *Updated

Axa XL *Updated

Camberford Law Limited