Posted: 19 / 01 / 2021

We read the judgement, so you don’t have to

On 15 January 2021, the Supreme Court has delivered judgement on the Financial Conduct Authority’s appeal on business interruption insurance on behalf of policyholders in the UK. The appeal was successful, which now means thousands of policyholders can place a claim for coronavirus-related business interruption losses. To read the full Judgement and details of the case, see Here.

Executive Director of the FCA, Sheldon Mills, commented “Coronavirus is causing substantial loss and distress to businesses and many are under immense financial strain to stay afloat. This test case involved complex legal issues. Our aim throughout this test case has been to get clarity for as wide a range of parties as possible, as quickly as possible, and today’s judgment decisively removes many of the roadblocks to claims by policyholders.

“We will be working with insurers to ensure that they now move quickly to pay claims that the judgment says should be paid, making interim payments wherever possible. Insurers should also communicate directly and quickly with policyholders who have made claims affected by the judgment to explain next steps.

“As we have recognised from the start of this case, tens of thousands of small firms and potentially hundreds of thousands of jobs are relying on this. We are grateful to the Supreme Court for delivering the judgment quickly. The speed with which it was reached reflects well on all parties.”

Here’s some background…

Previous to the FCA bringing this test case, business interruption claims as a result of coronavirus had been declined by insurers who stated that as we are in such unprecedented times, the policy didn’t cover such an event. The Supreme Court addressed the following:

  1. the interpretation of “disease clauses” (which cover business interruption losses resulting from any occurrence of a notifiable disease within a specified distance of insured premises)
  2. the interpretation of “prevention of access” clauses (which cover business interruption losses resulting from public authority intervention preventing access to, or the use of, business premises) and “hybrid clauses” (which contain both disease and prevention of access elements)
  3. the question of what causal link must be shown between business interruption losses and the occurrence of a notifiable disease (or other insured peril specified in the relevant policy wording)
  4. the effect of “trends clauses” (which prescribe a standard method of quantifying business interruption losses by comparing the performance of a business to an earlier period of trading)
  5. the significance in quantifying business interruption losses of effects of the pandemic on the business which occurred before the cover was triggered (“Pre-Trigger Losses”)

and

  1. in relation to causation and the interpretation of trends clauses, the status of the decision of the Commercial Court in Orient-Express Hotels Ltd v Assicurazioni Generali SpA (trading as Generali Global Risk) [2010] EWHC 1186 (Comm) (“Orient-Express”)

 

The FCA sought to urgently clarify the above contractual uncertainties for as many policyholders as possible; and did so by selecting a sample of policies issued by eight insurers.

What this means for you

If you are the owner of a business, which has suffered financial loss as a result of COVID-19, and you have an insurance policy as part of your business insurance portfolio that covers business interruption, you can now make a claim.

If you do work with an insurance broker, this should be your immediate next step. Speaking to them to advise you are aware of the ruling and asking them how it affects your business and your insurance policy. If you arrange insurance directly, many lenders have opened specific channels for claiming against this but the insurers website should be the first place to look.

How we can help

Many claims of this nature require self-certification of the losses you have suffered. Bartfields Forensic Accountants are a specialist team, we are experts in this field and can produce a report to substantiate your losses. If your insurance company requests this, please speak directly to Emma Whitaker on 0113 5187946 or email us at info@bartfieldsforensic.co.uk.