FCA updates on BI insurance test case

FCA has published a new set of documents relating to the test case it is bringing to get clarity on the coverage of business interruption insurance during the Covid-19 crisis.

It has on 10 June (today) announced that it has started High Court proceedings and has published the court documents related to it:

  • the Claim Form
  • Particulars of Claim
  • Representative Sample of Policy Wordings (updated from the sample previously published)
  • Assumed Facts (updated from the version previously published)
  • Questions for Determination by the Court (updated from the version previously published). Several questions have been embellished upon, and new questions on exclusions added;
  • Issues Matrix (updated from the version previously published);
  • documents relating to FCA’s application for expedition, as part of the Financial Markets Test Case Scheme

It has also updated the list of affected insurers and relevant policy wordings (no new insurers have been added, but some policy wordings have been), but this list is still not final and will not be finalised until early July.

FCA has received over 270 submissions in response to its request for comment on its set of documents, and in response, has:

  • provided more detail on what the judgment will mean for policyholders in respect of their claims. It clarifies that the result of the case will be legally binding on the insurers that are party to it in respect of the interpretation of the wordings considered, and will be persuasive guidance for similar wordings and claims.  It can be taken into account by relevant courts, and by the FCA and FOS; and
  • clarified that the policy wordings it has chosen are those representative of the key arguable issues, to balance making the process as swift as possible with providing as much clarity as possible.

As previously notified, FCA expects the first Case Management Conference to take place on 16 June, and FCA hopes the hearing can be live-streamed. Thereafter it plans a further consultation period from around 23 June when the insurers file their defences, so that stakeholder comments can be reflected in FCA’s Reply and skeleton arguments. FCA’s intentions are reflected in its Policyholder Engagement Statement.

Emma Radmore