Business interruption insurance

Publication of Supreme Court declarations 

We have published the Supreme Court Order[6] varying the High Court declarations made in the test case. The declarations record the outcome of the judgments in the test case and declare whether the policies in the representative sample potentially cover business interruption losses arising from the coronavirus (Covid-19) pandemic and in what circumstances. It nevertheless remains important to read them alongside the judgment, which provides the Court’s reasoning and explanation that helps in understanding and applying the declarations. 

We have also published a table[18] highlighting the most relevant declarations by policy type for policyholders.  Policyholders are encouraged to speak to their insurance intermediaries and/or their advisers in the first instance for questions arising from the declarations.

As mentioned in our Policyholder FAQs[17], our view has been that insurers should not include the period between 17 June 2020 and the final resolution of the test case when relying on any time limits within which policyholders must make claims that were potentially affected by the test case or take any other step under the terms of their policies.  Notwithstanding that the Supreme Court’s Order has brought this period to an end, of course, insurers will need to continue to consider whether any proposed rejection of a claim due to a failure to comply with a time period in the policy is fair in the circumstances.

Policyholders who are dissatisfied with their insurer’s rejection of their claim due to a time limit in the policy may complain to their insurer and, if they are dissatisfied with the outcome of their complaint, may refer their complaint to the Financial Ombudsman Service.

Insurance intermediaries acting for policyholders should seek to support them, as appropriate, to progress their claims quickly with their insurer.  They should also consider whether it is fair, and in the policyholders’ best interests, to notify the policyholder if the intermediary reasonably considers that they may have a claim under their policy.

On 12 March 2021 we published an updated list of policies affected by the test case.  Since then, for consistency and completeness, we asked insurers to submit the following additional wordings for inclusion on the list:

1. Non-damage BI policies in respect of which the insurer was accepting cover prior to the test case.
2. Non-damage BI policies that only contain a clause responding to Covid-19 ‘at the premises’, which is a type of wording that was not in the representative sample of wordings considered in the test case. 

We have today published a further updated list of non-damage BI policies[15] in principle, capable of responding to the Covid-19 pandemic in at least some circumstances, as submitted by insurers. Inclusion in this list does not mean that the outcome on any particular claim for the policy wordings will be affected or that a particular policyholder will have a valid claim. Each policy wording and policyholder’s circumstances will need to be considered on a case by case basis, including to determine how much is payable.

Insurers have provided the latest submission of BI claims information, based on their records of the numbers of claims and the values of interim/initial payments and final settlements meeting the criteria specified in our information request.

We have published the latest extract of BI claims[21], based on insurer submissions to the FCA at 6 April 2021. 

Our Dear CEO letter on 22 January 2021[22] set out our intention to gather information regularly from all affected insurers on the progress of their non-damage BI claims, and to publish some of this data. Insurers have provided the first submission of this information, based on their records of the numbers of claims and the values of interim/initial payments and final settlements meeting the criteria specified in our information request.

We have published some of this claims data[27] for the first time, based on insurer submissions to the FCA at 3 March 2021. We intend to publish this data on a monthly basis.

Finalised guidance and feedback statement: Proving the presence of coronavirus (Covid-19)

We have published finalised guidance[22] setting out how to prove the presence of Covid-19 in a particular area, based on the High Court’s judgment and declarations.

We have also published a feedback statement[23] summarising the feedback received on our draft guidance published on 11 December 2020.

We are working to create an online calculator to help policyholders gather two types of evidence described in the guidance: ‘Reported Cases’ and ‘Estimated Cases’ (as described in Chapters 7, 8 and 9 of the guidance). The calculator should be available soon. If you would like to use the calculator, please sign up for our BI test case email alerts[24] and you will get an email when the calculator is launched. 

Submissions to the Supreme Court on the declarations 

The FCA and the other parties to the test case have made written submissions to the Supreme Court on the form of the declarations to be issued by the Court. These declarations will be the culmination of the judgments in the test case and will declare whether the policies in the representative sample potentially cover business interruption losses arising from the coronavirus (Covid-19) pandemic. 

We have published:

• a draft of the declarations[25] showing which parts are agreed and which remain in dispute
• submissions of the FCA[26]
• joint submissions of Arch, Argenta, Hiscox, MS Amlin, QBE and RSA[27] in relation to common declarations
• submissions of Arch Insurance (UK) Ltd[28] in relation to its specific declarations
• joint submissions of Ecclesiastical Insurance Office plc and MS Amlin Underwriting Limited[29] in relation to their specific declarations
• submissions of Hiscox Insurance Company Ltd[30] in relation to its specific declarations
• submissions of Royal & Sun Alliance Insurance Plc[31] in relation to its specific declarations
• submissions of the Hiscox Action Group[32] 

We expect that the Supreme Court will issue the declarations without a further hearing, but we do not know when. 

We believe that the judgment from the Supreme Court gives insurers the clarity they need to conclude their claims processes with the large majority of their BI customers, without waiting for the declarations.

Policy checker and FAQs

We have published a policy checker and FAQs[13] to help policyholders find out if their insurance policy may cover business interruption losses caused by coronavirus and what they can do next.

Dear CEO letter on expectations of insurers

Following the judgment from the Supreme Court, we have issued a Dear CEO letter[16] outlining our expectations of insurers following the judgment.

Table summarising the outcome of the test case by policy type

In order to assist policyholders and other stakeholders to understand the outcome of the test case, we have published a table[17] setting out the outcome of the test case and key paragraphs of the judgments according to policy type in the representative sample[3] of 21 policy wordings.

Supreme Court judgment

The Supreme Court has handed down its judgment[4]. It substantially allows the FCA’s appeal and dismisses the insurers’ appeals. This means that many thousands of policyholders who have cover should now have their claims for coronavirus-related business interruption losses paid.

We have issued a press release [33]on the judgment.

Summary of the judgment

The judgment is complex and runs to 112 pages. Our legal team at Herbert Smith Freehills have published a bulletin summarising the judgment on their website[5].

Limited extension to consultation on draft guidance on presence of Covid-19

Our consultation closes on 18 January 2021. We are willing to extend the time for your comments on this draft document to Friday 22 January 2021 but only for matters that are supplemental and arise from the Supreme Court judgment. All other comments should be sent by the 18 January deadline.

Policyholders currently considering a full and final settlement offer from their insurer

Policyholders may wish to contact their broker and/or insurer before accepting any full and final settlement offer, in case it needs to be updated following the Supreme Court judgment. 

Timing of the judgment from the Supreme Court

The Supreme Court has announced[34] that it will deliver its judgment on Friday 15 January 2021 at 9:45 am. 

We understand that delivery of the judgment may last around 15 minutes, and the full written judgment is likely to be published on the Supreme Court’s website[35] very soon after that.

In order to view the delivery of the judgment:

• click on this link: https://www.supremecourt.uk/live/court-01.html[36]
• you do not need any specialist software
• please note that you must not record the live-stream

Timing of the judgment from the Supreme Court

We have been informed by the Supreme Court that it will not be in a position to hand down the judgment before January 2021.

Draft guidance on proving the presence of coronavirus (Covid-19)

We have published a statement [37]and consultation on draft guidance[38] as to how the presence of coronavirus in a particular area may be proved, based on the High Court’s judgment and declarations. We do not expect this aspect of the High Court’s ruling to be affected by the appeals to the Supreme Court and we are not pre-judging the outcome of the appeals. This document explains the types of evidence and methodologies which policyholders can use, together with links to further useful information for policyholders. This is intended to provide clarity for all parties and to help ensure that the process of proving the presence of coronavirus is made as simple as possible for policyholders, to enable them to receive pay outs as early as possible where they remain eligible following judgment from the Supreme Court. We are asking for comments on this guidance consultation by 18 January 2021.

Publication of final transcripts

We have published:

• The final transcript of day 1 of the Supreme Court appeal hearing[39]
• The final transcript of day 2 of the Supreme Court appeal hearing[40]
• The final transcript of day 3 of the Supreme Court appeal hearing[41]
• The final transcript of day 4 of the Supreme Court appeal hearing[42]

Draft transcript

We have published the draft transcript of day 4[43] of the Supreme Court appeal hearing. 

Draft transcript

We have published the draft transcript of day 3[44] of the Supreme Court appeal hearing.

Timing of judgment from the Supreme Court

The Supreme Court appeal hearing has now ended. Lord Reed recognised the importance of an early judgment for the businesses affected. He said that the Justices would do what they could to provide judgment as quickly as possible, but could not comment on whether that would be before Christmas or in January. The Court intends to keep the parties informed, and we will update this webpage to that effect as soon as we can.

Draft transcript

We have published the draft transcript of day 2[45] of the Supreme Court appeal hearing.

Re-watching the appeal hearing 

Videos of the appeal hearing are being uploaded to the Supreme Court website. To find these, click on the following link and go to the ‘Watch hearing’ section at the bottom of the page: https://www.supremecourt.uk/cases/uksc-2020-0177.html[46] 

Draft transcript  

We have published the draft transcript of day 1[47] of the Supreme Court appeal hearing. We will publish final transcripts when they are available.

Timetable for Supreme Court appeal

The parties have agreed the full running order[48] for the Supreme Court hearing, which started today, which is broadly as follows (using abbreviations for party names):

• All Monday from 11.00 and Tuesday morning to 12.45: insurers open on their appeals (the order is QBE, Argenta, MS Amlin, RSA, Hiscox and Arch).
• Rest of Tuesday, all of Wednesday, and 35 minutes Thursday morning:  the FCA responds on insurers’ appeals and opens on its appeal.
• 40 minutes on Thursday morning: Hiscox Action Group respond and open on their appeal.
• Thursday 11.45 to 15.15: insurers reply on their appeals (the order is Arch, Hiscox, Zurich, QBE, RSA, MS Amlin, Argenta) and respond to FCA and Hiscox Action Group appeals.
• Closing 45 minutes on Thursday: FCA and Hiscox Action Group reply on their appeals.

The lunch adjournment is c.13.00-14.00 each day.

The Supreme Court has issued a hand out[49] summarising the issues, facts, procedural chronology and counsel for the appeal.    

Link to live-stream appeal hearing

The Supreme Court will live-stream the appeal, which is due to take place on 16-19 November. The Court will sit as follows:

• Monday 16 November: 11am-4pm
• Tuesday 17 – Thursday 19 November: 10.30am-4pm

In order to view the live-stream:

• click on the following link: https://www.supremecourt.uk/live/court-01.html[52]
• you do not need any specialist software
• please note that you must not record the live-stream

Written cases for the Supreme Court appeal

We have published the written cases for the appeals in the Supreme Court of:

• The FCA[50]
• Arch Insurance (UK) Ltd[51]
• Argenta Syndicate Management Ltd[52]
• MS Amlin Underwriting Ltd[53]
• Hiscox Insurance Company Ltd[54]
• QBE UK Ltd[55]
• Royal & Sun Alliance Insurance Plc[56]
• Hiscox Action Group[57]

See the third column of the table published on 4 November[58] for whether the appeal may change the overall outcome of cover for a policy in the representative sample.

We have also published the written cases responding to those appeals:

• The FCA[59]
• Arch Insurance (UK) Ltd[60]
• Argenta Syndicate Management Ltd[61]
• MS Amlin Underwriting Ltd[62]
• Hiscox Insurance Company Ltd[63]
• QBE UK Ltd[64]
• Royal & Sun Alliance Insurance Plc[65]
• Zurich Insurance Plc[66]
• Hiscox Action Group[67]

We have also published:

• The order of the Supreme Court[68] granting permission to appeal.
• The agreed Statement of Facts and Issues[69] which sets out the history of Covid-19 and the government response, the background to the proceedings, and the issues being appealed.
• The directions agreed[70] between the parties to the appeal regarding steps leading up to the appeal hearing and other procedural matters.

Publication of documents for policyholders 

In order to assist policyholders and other stakeholders in understanding the High Court judgment[71], High Court declarations[72] and the test case generally, we have published: 

• A table[75] setting out the appeal status and the most relevant declarations and paragraphs of the judgment according to policy type in the representative sample.
• The representative sample of policy wordings[73] with a contents page, which can be navigated to by clicking on the policy type in the table above (there is no other change to this document).
• A contents list[74] for the High Court judgment.

None of these publications contain any new information, but they are intended to aid navigation of the court documents. They are not definitive or legally binding. Policyholders are again encouraged to speak to their insurance intermediaries and/or their advisers in the first instance for questions arising from the judgment, declarations and appeal.

Date of appeal in the Supreme Court

On 2 November, the Supreme Court granted permission to appeal to all those who had applied for it (see 20 October update).

The appeal in the Supreme Court will be heard from Monday 16 November and is expected to last for 4 days.

The appeal hearing will be by video link. 

As we have stated previously, we believe that this 'leapfrog' appeal to the Supreme Court is the fastest way to get legal clarity for all parties in the event that it is not possible to find a solution with insurers which resolves the outstanding issues, before the appeal takes place, to enable pay-outs on eligible claims.

As Royal & Sun Alliance Insurance Plc has confirmed[75] it will not be appealing the High Court's judgment in respect of the RSA4 wording[76], Hospitality Insurance Group Action has confirmed that it will not be seeking to intervene in the Supreme Court appeal.

Publication of High Court declarations  

We have published the High Court declarations[89] made in the test case. These are the culmination of the test case judgment[88] and declare how and to what extent the policies in the representative sample respond to business interruption losses arising from the COVID-19 pandemic.  

We expect to publish shortly a guide to the declarations for policyholders. Policyholders are encouraged to speak to their insurance intermediaries and/or their advisers in the first instance for questions arising from the declarations. 

Policyholders should note that the FCA, 6 defendant insurers and the Hiscox Action Group have applied to appeal the High Court judgment and declarations. This is addressed later in this update.    

We have also published:  

• The final transcript of the 2 October hearing[77]  
• The order of 2 October which, amongst other matters, granted certificates for a 'leapfrog' appeal to the Supreme Court[78]

Publication of appeal applications to Supreme Court 

Following the High Court granting certificates for a ‘leapfrog’ appeal to the Supreme Court on 2 October, the FCA and others are entitled to apply to the Supreme Court for permission to appeal.  

As stated in our 30 September press release[79] we are continuing discussions with insurers and action groups, to find a solution which resolves the outstanding issues as soon as possible to enable pay-outs on eligible claims. In parallel with this, the FCA, 6 defendant insurers and the Hiscox Action Group have applied for permission appeal to the Supreme Court. We believe that this 'leapfrog' appeal is the fastest way to get legal clarity as quickly as possible for all parties in the event that it is not possible to resolve the outstanding issues in the coming weeks. 

We have published the FCA’s application to appeal to the Supreme Court[80].

We have also published applications to appeal to the Supreme Court from the 6 appellant  defendants and Hiscox Action Group: 

• Common sections of 6 defendant insurers' application[81]
• Arch Insurance (UK) Ltd[82]
• Argenta Syndicate Management Ltd[83]
• MS Amlin Underwriting Ltd[84]
• Hiscox Insurance Company Ltd[85]
• QBE UK Ltd[86]
• Royal & Sun Alliance Insurance Plc[87]
• Hiscox Action Group[88] 

Draft transcript of consequentials hearing

We have published the draft transcript[89] of the consequentials hearing on 2 October.

Outcome of consequentials hearing 

Lord Justice Flaux and Mr Justice Butcher have made various orders consequential upon their judgment[96] in the test case. 

The orders included a series of declarations as to the effect of the judgment, which we will publish as soon as available.

In light of the hearing, the FCA will review the final declarations and decide on its next steps. As stated in our press release[99] on Wednesday, these will include pressing on with the application to appeal to the Supreme Court while continuing discussions with insurers and action groups to find a solution that avoids the need for appeal and enables pay-outs on eligible claims as quickly as possible.

The High Court granted ‘leapfrog’ certificates for an appeal to the Supreme Court to:

• The FCA
• Arch Insurance (UK) Ltd
• Argenta Syndicate Management Ltd
• MS Amlin Underwriting Ltd
• Hiscox Insurance Company Ltd
• QBE UK Ltd
• Royal & Sun Alliance Insurance Plc
• Hiscox Action Group 

Those who received a certificate are now entitled to apply to the Supreme Court for permission to appeal. 

Ecclesiastical Insurance Office Plc withdrew its ‘leapfrog’ application before the hearing on 2 October. 

QIC Europe Limited applied to become a party to the test case in order to bring an appeal. The court rejected this application. 

The above will be contained in a sealed order from the court, which we will publish here as soon as it is available.

Consequentials hearing on Friday 2 October

We have published a press release[111], setting out the current position on discussions between the parties.

On 2 October, the Court will hear submissions from the parties on:

• declarations to be made by the court in the light of the judgment
• applications for appeal

Skeleton arguments

We have published the following skeleton arguments (written submissions) for the consequentials hearing:

• FCA skeleton argument[88]
• Arch Insurance (UK) Ltd skeleton argument[89]
• Argenta Syndicate Management Ltd skeleton argument[90]
• Ecclesiastical Insurance Office Plc and MS Amlin Underwriting Ltd skeleton argument[91]
• Hiscox Insurance Company Ltd skeleton argument[92]
• QBE UK Ltd skeleton argument[93]
• Royal & Sun Alliance Insurance Plc skeleton argument[94]
• Zurich Insurance Plc skeleton argument[95]
• Hiscox Action Group skeleton argument[96]
• Hospitality Insurance Group Action skeleton argument[97]

‘Leapfrog’ applications

We have published the FCA’s application for a ‘leapfrog’ appeal[98] to the Supreme Court.

This is very short and is expanded upon in the FCA’s skeleton argument[113].

We have also published ‘leapfrog’ applications from the following defendants and Intervener:

• Arch Insurance (UK) Ltd[99]
• Argenta Syndicate Management Ltd[100]
• Ecclesiastical Insurance Office Plc[101]
• MS Amlin Underwriting Ltd[102]
• Hiscox Insurance Company Ltd[103]
• QBE UK Ltd[104]
• Royal & Sun Alliance Insurance Plc[105]
• Hiscox Action Group Application Notice[106] and Grounds and Witness Statement[107]

Update on appeals process

The deadline for parties to apply for a 'leapfrog' appeal to the Supreme Court was yesterday. We have published a press release[108] stating the FCA’s position on the appeals process.

Meetings with policyholders and other stakeholders

We received hundreds of requests for meetings with our legal team to discuss the impact of the test case. In order to cater to such high demand and to speak to as many policyholders and their legal representatives as possible, we held meetings over 4 days this week. These meetings addressed issues such as the impact of the judgment for policyholders with policies in the representative sample considered by the Court and for policyholders with other policies. We are grateful to all participants for their views, which we are taking into account.

Upcoming milestones

The court has ordered that:

• The deadline for filing any application for a certificate under section 12 of the Administration of Justice Act 1969[109] is 4pm on Monday 28 September 2020. (This is an application by a party seeking a 'leapfrog' appeal to the Supreme Court - an appeal that does not need to be heard by the Court of Appeal first.)
• The High Court will consider any applications for a 'leapfrog' appeal or for an appeal to the Court of Appeal at the consequentials hearing on 2 October.
• The deadline for skeleton arguments (written submissions) for the consequentials hearing on 2 October is 12:00 noon Wednesday 30 September.
• The deadline for filing any appellant’s notice pursuant to rule 52.12(2) of the Civil Procedure Rules 1998[110] is extended to Friday 9 October. (This is an application by a person applying directly to an appeal court (as opposed to the High Court here) for permission to appeal.)

We will publish the sealed order of the court when it is available. [Update on 20 October: we have now published the 15 October order[111].]

We will publish any documents referred to in the bullet points above, to the extent that we are permitted to, when they are available.

Dear CEO letter on expectations of insurers

Following the judgment from the High Court, we have issued a Dear CEO letter[112] outlining our expectations of insurers following the judgment.

Consequentials hearing

The Court has confirmed that the consequentials hearing will take place on 2 October, where the Court will hear submissions from the parties on the appropriate declarations to be made by the Court in the light of the judgment and on any applications for appeal.

We will confirm the time of the hearing (probably 10:30) and publish details of the live-stream on this webpage when available.

Publication of judgment and FCA press release

We have published the judgment[110] in the test case, which has just been handed down by the High Court.

We have also issued a press release[111] on the judgment.

Summary of judgment

The judgment is complex and runs to over 150 pages. Our legal team at Herbert Smith Freehills have published a summary on their website[112].

Consequentials hearing

A hearing will shortly be fixed with the High Court, where any applications for appeal will likely be made. The court has agreed to live-stream this hearing if it is heard remotely. We will publish the hearing date and details of the live-stream on this webpage when available.

Next steps for policyholders

Every policyholder who has made a claim or complaint that is potentially affected by the judgment should receive an update from their insurer within 7 days.

In the meantime, the test case does not prevent policyholders making or settling any claim under their business interruption policy, making a complaint to their insurer if they are dissatisfied with the outcome, and referring their complaint to the Financial Ombudsman Service.

Complaints referred to the Financial Ombudsman Service

Policyholders with complaints at the Financial Ombudsman Service that are potentially affected by the judgment should await further information from the Ombudsman. The Ombudsman has published information on business interruption insurance complaints on its website[113].

Invitation to speak to our legal team

Our legal team has set aside time on 21 and 22 September to speak directly with as many policyholders and intermediaries and their legal advisers as reasonably possible, given the time constraints.

We will consider meeting requests made to us by 5pm on Thursday 17 September.

Please email: [email protected] stating only the word 'Meeting' in the subject line of the email and stating your availability in the body of the email. If you would like to talk about a particular policy, please email the policy document to us as well as correspondence from your insurer regarding whether your claim is potentially affected by the test case.

Future handing down of judgment

The court has stated that judgment will be handed down at 10:30am on Tuesday 15 September 2020.

We will publish the judgment on this webpage once it has been handed down.

Publication of final transcripts

We have published:

• The final transcript of day 1[114] of the trial
• The final transcript of day 2[115] of the trial
• The final transcript of day 3[116] of the trial
• The final transcript of day 4[117] of the trial
• The final transcript of day 5[118] of the trial
• The final transcript of day 6[119] of the trial
• The final transcript of day 7[120] of the trial
• The final transcript of day 8[121] of the trial

Publication of draft transcript and Supplementary Notes

We have published: 

• The draft transcript[122] of day 8 of the trial
• The Supplementary Note[123] of Argenta Syndicate Management Ltd
• The Supplementary Note[124] of Ecclesiastical Insurance Office Plc and MS Amlin Underwriting Ltd
• Supplementary Note 1[125] of Hospitality Industry Group Action
• Supplementary Note 2[126] of Hospitality Industry Group Action

Conclusion of the trial 

The trial has now concluded and judgment is awaited. We have amended this page above, including with information about what happens next.

Publication of draft transcript 

We have published the draft transcript[127] of day 7 of the trial.

Publication of draft transcript 

We have published the draft transcript[128] of day 6 of the trial.

Publication of draft transcript 

We have published the draft transcript[129] of day 5 of the trial.

Publication of draft transcript 

We have published the draft transcript[130] of day 4 of the trial.

Publication of draft transcript and Agreed Facts 3

We have published the draft transcript[131] of day 3 of the trial.

We have also published Agreed Facts 3 – Prevalence of Covid-19[132].

Publication of draft transcript

We have published the draft transcript[133] of day 2 of the trial. 

Publication of draft transcript 

We have published the draft transcript[134] of day 1 of the trial. 

Publication of further documents for trial  

We have published below a number of other documents which will be used as part of the trial commencing on Monday 20 July.  

The Agreed List of Issues and Common Ground[135] summarises what is and is not in dispute between the parties. This supersedes the Questions for Determination.

The Agreed Facts are sets of facts, with supporting evidence, which the parties have now agreed and which are necessary to resolve the issues in dispute:   

• Agreed Facts 1 – Chronology of Government Response to Covid-19 in the UK[136]
• Agreed Facts 2 – Covid-19 Disease[137] 
• Agreed Facts 3 – Prevalence of Covid-19[161]
• Agreed Facts 4 – Restrictions, guidance, advice and other information provided to the public[138] 
• Agreed Facts 5 – Notification Procedure[139] 
• Agreed Facts 6 – Sweden[140] 
• Agreed Facts 7 – Earlier Pandemics[141]  
• Agreed Facts 8 – Economic Impact[142] 
• Agreed Facts 9 – Distribution Channels[143] 
• Agreed Facts 10 – Scilly Isles[144]  

The new Assumed Facts[145] document contains factual scenarios which some parties will use in the trial to illustrate their views as to how coverage is triggered. These have developed out of the previous Assumed Facts[146] document, as a result of discussion and agreement between the parties.  

Publication of  defendants’ skeleton arguments 

We have published the defendants’ skeleton arguments (written submissions) for trial:

• Arch Insurance (UK) Ltd skeleton argument[147]
• Argenta Syndicate Management Ltd skeleton argument[148]
• Ecclesiastical Insurance Office Plc and MS Amlin Underwriting Ltd skeleton argument[149]
• Hiscox Insurance Company Ltd skeleton argument[150]
• QBE UK Ltd skeleton argument[151]
• Royal & Sun Alliance Insurance Plc skeleton argument[152]
• Zurich Insurance Plc skeleton argument[153]

We have also published the defendants’ joint skeleton argument on the principles of contractual construction[154] (interpretation) and defendants’ joint skeleton argument on causation[155] (of loss). 

Publication of court order

Following the Case Management Conference on 26 June, we have published the sealed court order[156] made.

List of affected insurers and policies

On 17 June 2020 we published Finalised Guidance[157] for insurers in relation to the test case. We asked insurers to review relevant non-damage business interruption policies to determine whether the outcome on claims generally (including questions of causation of loss) may be affected by the final resolution of the test case. We asked insurers to provide us with their findings.

We have published the list of affected insurers and policies[158] that were submitted to the FCA as part of this process. 

The policies listed cover approximately 370,000 policyholders.  

Insurers have been requested to update the FCA as the case develops on the outcome of this review. We will update the list to reflect any updated reviews as appropriate.

Publication of skeleton arguments

We have published the FCA’s and Interveners’ skeleton arguments (written submissions) for trial commencing on 20 July: 

• FCA’s skeleton argument [159]
• Hospitality Insurance Group Action skeleton argument [160]
• Hiscox Action Group skeleton argument[161] 

Other publications

We have also published:

• the court’s ruling[162] for the second Case Management Conference on 26 June
• the final approved transcript[163] for the second Case Management Conference on 26 June
• the Amended Defence[164] of Hiscox Insurance Company Ltd

Publication of Reply 

The FCA has now served its Reply[165], which sets out its response to the Defences.  

Since 24 June we have received more than 90 detailed submissions from policyholders and other stakeholders on the Defences. We considered these when drafting the Reply. We also conducted numerous meetings with policyholders and other stakeholders as part of this process.  

Other publications

We have also published:

• the FCA’s Amended Particulars of Claim[166]
• the Amended Defence[167] of Royal & Sun Alliance Insurance Plc
• the court’s ruling[168] from the Case Management Conference on 16 June

Order from second Case Management Conference on 26 June 

At this hearing, Lord Justice Flaux and Mr Justice Butcher gave various directions relating to how the test case is to proceed, including that:

• The Hospitality Insurance Group Action and the Hiscox Action Group were permitted to intervene in the test case. Each may file written submissions and make brief oral submissions at the hearing in July.
• Certain facts have been accepted as 'Agreed Facts' for the purposes of the test case.
• Royal & Sun Alliance Insurance Plc was not permitted to rely on factual evidence about a policy wording which was outside the Representative Sample.
• The FCA was not permitted to rely on expert evidence in relation to two policy wordings of Ecclesiastical Insurance Office Plc. In particular, this concerned a list of ‘specified diseases’ which the FCA’s evidence suggested were unlikely to lead to a widespread outbreak in the UK.
• The FCA was permitted to amend its Particulars of Claim in relation to the prevalence of Covid-19 in the UK. The FCA has agreed that it will revert to the Court by Friday 3 July to indicate if it wishes the Court to reserve time in the new Commercial Court term starting in September for the determination of issues related to the under-recording of the prevalence of Covid-19 in the UK.
• Various procedural matters were decided, such as timing of written submissions, and sequence of oral submissions at the hearing in July. The first 3 days of the hearing in July were allocated to the FCA and Interveners, the next 4 days to the defendants, and the last day to the FCA and Interveners.

We have published a draft, provisional transcript[169] for the hearing, and will publish the final approved transcript as well as the court order when they are available. 

Transcript of first Case Management Conference on 16 June 

We have published the final approved transcript[170] of this hearing. 

Publication of court order

Following the Case Management Conference on 16 June, we have published the sealed court order[171] made.

Publication of Defences 

The defendants to the test case have now served their Defences. These state each defendant’s written case, in response to the FCA’s Particulars of Claim[172]. We have published each Defence below: 

• Defence of Arch Insurance (UK) Ltd[173]
• Defence of Argenta Syndicate Management Ltd[174]
• Defence of Ecclesiastical Insurance Office Plc and MS Amlin Underwriting Ltd[175]
• Defence of Hiscox Insurance Company Ltd[176]
• Defence of QBE UK Ltd[177]
• Defence of Royal & Sun Alliance Insurance Plc[178]
• Defence of Zurich Insurance Plc[179]

Invitation to comment on the Defences

The FCA’s Reply, which is the written response to the Defences above, is due on 3 July. The FCA’s skeleton argument (written submissions) for the final hearing is due after that. We are inviting policyholders, their insurance intermediaries, other stakeholders and their legal advisers to provide comments on the Defences, which we will consider when drafting our Reply and skeleton argument.

What we are asking for:

• We are inviting comments specifically on the Defences published above, and encourage you to specify which paragraph of which Defence you are commenting on.
• Comments might also include alerting us to specific clauses or wording in your policy (as long as that policy is already part of the test case) or in correspondence you have received from a defendant, perhaps because they are inconsistent with the interpretation put forward in a Defence.
• We are not inviting requests for particular policies to be added to the test case at this stage.

The earlier you can send your comments the better. We will consider comments provided to us by 3pm on Monday 29 June.  

Please email: [email protected] stating only the word ‘Defences’ in the subject line of the email.

Where you are a member of an action group pursuing action against an insurer or of a relevant trade body, please could you also identify this clearly in the body of the email.

We will contact you if we have any queries in relation to the comments raised, but we will not be able to respond individually to all emails sent to this email address.

Invitation to speak to our legal team

Our legal team has set aside time on 30 June and 1 July to speak directly with as many policyholders and intermediaries and their legal advisers as reasonably possible, given the time constraints.

We will consider meeting requests made to us by 5pm on Friday 26 June.    

Please email: [email protected] stating only the word 'Meeting' in the subject line of the email and stating your availability in the body of the email.

Order from first Case Management Conference on 16 June 

At this hearing, Mr Justice Butcher made an order relating to how the test case is to proceed, including that:

• the case will be expedited (heard urgently) in accordance with the timetable above
• the Financial Markets Test Case Scheme will apply
• the second Case Management Conference and final hearing will be live-streamed (details below)

We will publish a copy of the court order and transcript for the hearing once they are available.

Notice to non-parties in the test case

In accordance with the order of Mr Justice Butcher on 16 June, notice is given that any non-party wishing to make an application under paragraph 2.5 of Practice Direction 51M should make any such application by 5pm on 24 June 2020 on notice to all parties to the litigation, any such application to be returnable at the Second CMC.  

'Returnable at the Second CMC' means that any such application will be heard at the second Case Management Conference on 26 June 2020.  

Finalised Guidance and Feedback Statement published

We have published Finalised Guidance[180] setting out our expectations for insurers and insurance intermediaries when handling claims and complaints for business interruption policies during the test case brought by the FCA.  

We have also published a Feedback Statement[181] summarising the feedback received on our draft guidance published on 1 June 2020. 

Details of first Case Management Conference on 16 June

The first Case Management Conference before a judge takes place on 16 June.

At this hearing, the judge will:

• consider our application for expedition and admission to the Financial Markets Test Case Scheme
• fix the timetable for the case
• deal with other procedural matters

Start of proceedings in the High Court

We have started proceedings in the High Court and published the court documents  related to this: 

• Claim Form[182], which is a procedural document initiating legal proceedings and summarising what we are seeking.
• Particulars of Claim[202], which is the FCA’s ‘pleading’ in the case, setting out our claim in writing.
• Representative Sample of Policy Wordings[91], which are a selection of policy wordings which the FCA believes captures the majority of the key issues that could be in dispute. Read a tracked changes version[183] so that you can see how this document has developed to date from the proposal published on 1 June 2020 (which is also available below). 
• Assumed Facts[176] (or 'fact patterns'), which are a set of illustrative factual assumptions, for example the nature of the affected business(es), how they were affected by the pandemic and whether they closed entirely or partially (and why). These are a menu of potential fact patterns to assist the court, and not all of the assumed facts will be applied to all of the representative sample of policy wordings. Read a tracked changes version[184] so that you can see how this document has developed to date from the proposal published on 1 June 2020 (which is also available below).
• Questions for Determination[185] by the court, which are a list of potential questions arising from insurers’ reasons for denying claims, and which have informed the FCA’s Particulars of Claim. Read  a tracked changes version[186] so that you can see how this document has developed to date from the proposal published on 1 June 2020 (which is also available below).
• Issues Matrix[187], which shows which questions for determination by the court are engaged by each policy in the representative sample. Read a tracked changes version[188] so that you can see how this document has developed to date from the proposal published on 1 June 2020 (which is also available below). 

We have updated the initial list of affected insurers and the policy wordings[189] they use to reflect the changes to the Representative Sample of Policy Wordings. Read a tracked changes version[190] so that you can see how this document has developed to date from the proposal published on 1 June 2020 (which is also available below). As stated in the 1 June 2020 update , this list is not exhaustive, and our expectation remains to publish a list of all the relevant insurers and wordings that may be impacted by the test case in early July.

How we have engaged with stakeholders since 1 June

Since 1 June we have received more than 270 submissions from policyholders and other stakeholders on our proposed Questions for Determination and other documents relating to the scope of the test case that we published on 1 June. We and our advisers, Herbert Smith Freehills, have also conducted more than 45 consultations with policyholders and other stakeholders. We have taken account of the comments we received in formulating our Particulars of Claim and the other documents we published today. In particular:

• A number of policyholders asked what the judgment in the test case would mean for their claim. We have set out information about this on this website under the heading “What the test case will decide” above.
• A number of policyholders asked why certain policy wordings were not being tested. The policy wordings we have selected are those which are representative of the key arguable issues on the basis of securing the maximum relevant coverage for relevant policies while minimising the number of parties engaged before the court. This is in order to make the process as swift as possible while providing as much clarity as possible.
• The comments received from stakeholders have influenced the way the FCA has put its case in the Particulars of Claim, including in relation to certain causation points, what amounts to “prevention” and “interference”, and the correct application of “trends clauses”.
• We have amended where necessary the documents appended to the Particulars of Claim (Questions for Determination etc, see above).

Application for expedition

We have also published the documents  relating to our application that the test case be heard urgently, and as part of the Financial Markets Test Case Scheme (which is a scheme for financial claims raising issues of general importance that require immediate court guidance): 

• Application Notice[191], which is a procedural document initiating the application and summarising what we are asking for.
• Witness Statement[192], which is the FCA’s evidence in support of the application.
• Draft Order[193], which is the order we are asking the court to make in respect of this application.

First case management conference

The first Case Management Conference before a judge is expected to take place on 16 June (TBC). The judge will be invited to consider our application for expedition and admission to the Financial Markets Test Case Scheme, fix the timetable for the case (including the date for the court hearing in the second half of July) and deal with other procedural matters.

We intend to ask the judge to agree to live-stream this hearing, and will provide a further update on this as soon as we can. 

Next invitation to provide comments – c.23 June 

We expect to issue a further invitation to policyholders and other stakeholders to provide us with comments shortly after 23 June, when the insurer parties in the test case file their Defences. This will help us ensure that stakeholder comments are reflected in our Reply and skeleton arguments (written submissions) prepared for the final court hearing. 

Update to our Policyholder Engagement Statement

We have updated our Policyholder Engagement Statement[194], including to refer to our privacy notice[195]  for information on how and why we handle any personal data sent to us. 

We announced[196] that we have identified the representative sample of policy wordings to be examined in the test case, insurers that use those wordings, and which of those insurers we have invited, and have agreed, to participate in the proceedings.

The initial list of insurers and the policy wordings[197] they use is not exhaustive, and we published a short consultation on draft guidance[198] asking all insurers to check their policy wordings against those we intend to test to see if theirs will be impacted by the outcome of the case. We said our expectation was to publish a list of all the relevant insurers and wordings that may have impacted policies in early July.

The consultation on draft guidance also set out the FCA’s expectations of all firms handling BI claims and any related complaints between now and the court decision.

We also published 4 key documents, which we intend to invite the Court to consider and would therefore form the basis of the test case:

• Proposed Representative Sample of Policy Wordings[199], which are a selection of policy wordings which the FCA believes captures the majority of the key issues that could be in dispute. How we arrived at these is explained in the press release[229]
• Proposed Assumed Facts[200] (or 'fact patterns'), which are a set of illustrative factual assumptions, for example the nature of the affected business(es), how they were affected by the pandemic and whether they closed entirely or partially (and why). These are a menu of potential fact patterns to assist the court, and not all of the assumed facts will be applied to all of the representative sample of policy wordings
• Proposed Issues Matrix[201], which shows which questions for determination by the court are engaged by each policy in the representative sample
• Proposed Questions for Determination[202] by the court, which are a list of potential questions arising from insurers’ reasons for denying claims, and which will inform the FCA’s Particulars of Claim

Invitation to comment on our documents

We invited policyholders, their insurance intermediaries, insurers, other stakeholders and their legal advisers to provide their comments on these documents by 3pm on Friday 5 June.

We also invited comments on these documents from the insurers who will be the parties to the test case.

Invitation to speak to our legal advisers

We invited policyholders and intermediaries to have consultations with our legal team at Herbert Smith Freehills on 3 and 4 June.

We invited policyholders of BI insurance who are in dispute with their insurers over the terms of their policies to send us their arguments by 20 May 2020 if they wished us to take them into account as part of the test case. In particular, we asked for:

• policyholders’ (or their representative’s) arguments as to why it was considered cover should be available in cases where it was considered insurers had not responded appropriately to a claim
• the wording of the policy that has not responded
• brief relevant facts of the case

We needed policyholders’ arguments urgently in line with the FCA’s intention to seek the court’s view on relevant policies as soon as possible, and we said we would consider all arguments and information raised to us by 20 May 2020. We are taking those arguments into account as part of the test case.

We also provided a link to sign up to receive email updates[203].

We issued a statement[204] setting out our intention to obtain court declarations aimed at resolving the contractual uncertainty around the validity of many BI claims. We explained we are intending to take this action in the public interest to advance our consumer protection and market integrity objectives, with the aim of obtaining legal guidance more quickly and at lower cost to policyholders than would be the case if they took their own actions.

Alongside our statement, we asked insurance companies for information on their BI policies and wordings, and their intentions and decisions in relation to claims on these policies by 15 May 2020. We are using this information to consider, with external counsel, which policies we will seek to achieve a declaratory judgment on through the courts. We want a representative sample of wordings to give as much clarity as possible, whilst recognising that the need for an expedited court process means we can’t achieve clarity on every different wording. We are not yet in a position to definitively identify which policy wordings, or indeed firms, may be included in proceedings.