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On 15 January 2021, the Supreme Court handed down its judgment in the FCA COVID-19 test case, heard on a “leapfrog” appeal (bypassing the Court of Appeal) from the first instance decision of Lord Justice Flaux and Mr Justice Butcher (see our previous blogs here and here ). The Supreme Court judgment can be accessed here.
The Supreme Court substantially allowed the appeals of the Financial Conduct Authority (“
FCA”) on behalf of the policyholders and dismissed the appeals of the insurers, and in doing so, has broadly endorsed (and in some cases extended) the finding at first instance that many of the policies in question provide cover, albeit for slightly different reasons. As part of its reasoning, the Supreme Court concluded that the
15 January 2021
Insurance – Business interruption insurance – COVID-19
The Financial Conduct Authority (FCA) commenced the present test case under the Financial Markets Test Case Scheme (the scheme) for the benefit of insurance policyholders, who held insurance policies which covered them against losses arising from interruption of business, to urgently clarify whether or not there was cover in principle under a variety of different standard insurance policies for COVID-19 related business losses. The defendants were eight insurers who were leading providers of ‘business interruption’ insurance. The aim of the proceedings was to achieve the maximum clarity possible for the maximum number of policyholders and their insurers by considering a representative sample of standard form business interruption policies. The proper interpretation of four types of clauses in particular were considered, namely; (i) ‘disease clauses’; (ii) ‘prevention of access clauses’; (iii) ‘