Business Interruption FCA Test Case Update
As of 22nd September 2020
The Court’s judgment in the Financial Conduct Authority (FCA) test case was formally delivered on 15 September 2020.
For more information on the case and judgment please visit the FCA website
We understand that all parties are now considering the detail of the judgment, reviewing the decisions made and how it impacts the claims received. That is true for us also given the complexities and detail of the judgment.
One of the options open to the parties to the Test Case is to appeal the judgment, and for assistance we include below guidance previously issued by the FCA explaining the appeal process:
“After judgment, a party may appeal the court’s decision, subject to procedural rules for seeking permission to appeal and making an appeal. If this happens, the parties to the test case have agreed as part of the Framework Agreement that they will seek to have any appeal heard on an expedited basis. This includes exploring the possibility of a ‘leapfrog’ appeal to the Supreme Court (an appeal which would not need to be heard by the Court of Appeal first).
It should be noted that the decision as to whether and where an appeal might take place will be a matter for the court. But the parties’ agreement to seek to expedite any such process is consistent with their mutual objective to achieve the maximum clarity possible for the maximum number of policyholders and their insurers in an expeditious and proportionate way.”
We understand how important it is to resolve this situation as quickly as possible in these very challenging times and we will contact affected Policyholders as soon as we have completed our review of the judgment and are aware of the position in relation to any appeals.
For further information there are additional resources available which are highlighted below;
- The FCA website; www.fca.org.uk/firms/business-interruption-insurance. If you haven’t already you may wish to sign up to receive email updates from the FCA using the link on this webpage.
- The Association of British Insurers also provides information on its website; www.abi.org.uk/products-and-issues/topics-and-issues/coronavirus-hub/business-insurance
- The Financial Ombudsman Service has published information online about business interruption cases; www.financial-ombudsman.org.uk/businesses/complaints-deal/complaints/coronavirus-covid-19-information-businesses
- MSI will also continue to provide information on this page within our website - www.msi-europe.com/business-interruption-test-case.php
As of 17th June 2020
On 10 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 Mitsui Sumitomo Insurance Co. (Europe) Ltd 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.
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 17th June 2020.
Information about the test case can be found on the FCA website and information concerning business interruption insurance can be found on the Financial Ombudsman Service's website.
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, here.
