COVID-19

FCA business interruption test case

Accelerant Insurance Limited policyholder update 19th January 2021. Applies only to those policies that are underwritten by Accelerant Insurance Limited

On 9 June 2020, the Financial Conduct Authority (“FCA“) issued proceedings in the High Court of England and Wales to commence a test case in respect of business interruption policies that provide cover in circumstances where there has been no physical damage to the insured property. The aim of the test case is to resolve contractual uncertainty around the validity of many business interruption claims arising from the coronavirus pandemic.

The FCA has involved a number of insurers as parties in the test case. Although your insurer is not a named party in the test case, it supports the FCA’s aim to achieve clarity for all concerned in this unprecedented situation. The test case is designed to achieve the maximum clarity for the maximum number of policyholders, by seeking a binding court determination on the meaning and effect of 21 representative policy wordings written by the insurer parties.

Following the High Court’s decision on 15 September 2020, the test case was appealed (by the FCA, the Hiscox Action Group and six of the eight defendant insurers) to the Supreme Court. The appeals were heard by the Supreme Court under the “leapfrog” procedure which enables an appeal in exceptional circumstances to bypass the Court of Appeal and proceed directly to the Supreme Court. The appeals were heard remotely over four days between 16 and 19 November 2020.

The Supreme Court handed down judgment on 15 January 2021, which was predominantly in the FCA’s favour.

As we are now at the final resolution of the test case, your insurer will apply the Supreme Court’s decision to all outstanding claims and complaints other than those which have been referred to the Financial Ombudsman Service.

Policyholders who have submitted claims under business interruption policies that provide cover in circumstances where there has been no physical damage to the insured property, will be contacted in accordance with the guidance issued by the FCA on 17 June 2020.  If your insurer has already written to you previously to confirm that your policy is not affected, they will not be contacting you, as this position is unchanged.

Information about the test case can be found on the FCA website:

https://www.fca.org.uk/firms/business-interruption-insurance

Information concerning business interruption insurance can be found on the Financial Ombudsman Service’s website:

https://www.financial-ombudsman.org.uk/businesses/complaints-deal/complaints/coronavirus-covid-19-information-businesses

Accelerant Insurance Limited policyholder update 10th July 2020. Applies only to those policies that are underwritten by Accelerant Insurance Limited

FCA business interruption test case

On 9th June 2020, the Financial Conduct Authority (“FCA”) issued proceedings in the High Court of England and Wales to commence a test case in respect of business interruption policies that provide cover in circumstances where there has been no physical damage to the insured property. The aim of the test case is to resolve contractual uncertainty around the validity of many business interruption claims arising from the coronavirus pandemic.

The FCA has involved a number of insurers as parties in the test case. Although Corniche Underwriting Ltd trading as Recyclesure is not a named party in the test case, it supports the FCA’s aim to achieve clarity for all concerned in this unprecedented situation. The test case is designed to achieve the maximum clarity for the maximum number of policyholders, by seeking a binding court determination on the meaning and effect of 19 representative policy wordings written by the insurer parties. 

Policyholders who have submitted claims under business interruption policies that provide cover in circumstances where there has been no physical damage to the insured property, will be contacted in accordance with the guidance issued by the FCA on 17 June 2020.  

The test case is now at an advanced stage and an 8 day hearing in the High Court is scheduled for late July 2020 before Lord Justice Flaux and Mr Justice Butcher. Aspects of the test case may be appealed, and we will publish further details at that time.

At the final resolution of the test case (i.e. after any appeals), Corniche Underwriting Ltd trading as Recyclesure will apply the court’s decision to all outstanding claims and complaints other than those which have been referred to the Financial Ombudsman Service. 

Information about the test case can be found on the FCA website (https://www.fca.org.uk/firms/business-interruption-insurance) and information concerning business interruption insurance can be found on the Financial Ombudsman Service’s website (https://www.financial-ombudsman.org.uk/businesses/complaints-deal/complaints/coronavirus-covid-19-information-businesses). We recommend that all policyholders subscribe for FCA email alerts about the test case so that they are kept fully up to date on the progress of the case. Policyholders can sign up for FCA business interruption insurance email updates at: https://www.fca.org.uk/sign-business-interruption-bi-insurance-email-updates.

FCA Test Case update 16th June 2020:

The Financial Conduct Authority (FCA), which is the regulator for insurance related conduct in the UK, has launched a test case on business interruption (BI) insurance. The case will obtain court declarations to clarify whether certain policies will respond to BI claims arising from Covid-19. Currently there is a lack of clarity over the intention of the coverage purchased, and some insurers are denying cover, where the insured believes that cover was in place. The action focuses on BI claims under coverage extensions which are not dependent on physical damage, commonly referred to as ‘denial of access’ and ‘notifiable disease’ extensions.

The results of the test case will be legally binding on the insurers that are participating in the case, and the FCA expects that non-participating insurers will use the results of the case to guide their claims handling approach.

The FCA action does not prevent insureds from reaching their own negotiated settlements, or from taking complaints to the Financial Ombudsman Service (FOS), if eligible. However, any claim settled under a full and final release agreement is unlikely to benefit from any decision on this ruling.

The results of the case are due before the end of July 2020; however, this could be extended to allow time for appeals. Prior to that, all insurers have been instructed by the FCA to review their policy wordings to consider whether the results of the test case are likely to have an impact on the coverage available, and also review all Covid-19 related claims and complaints that have been submitted and denied, or not settled in full to see whether the FCA test case could have an impact on those decisions.

While the results are awaited, policyholders should continue to submit their business interruption claims and keep adequate records to support the claim if coverage is provided. We will publish updates to this statement as the case develops and as more information is provided by insurers. In the meantime if you have any questions or require any further information please do not hesitate to contact us.

Links:

• FCA Business Interruption test case information
• Association of British Insurers Covid-19 hub