FCA Judicial Review Latest Update

September 15, 2020

FCA Judicial Review Announcement – 15th September 2020.

Yesterday the High court published their decision on the judicial review of the 8 insurers and 21 policy wordings, brought into question by the FCA.

This is a complex judgement that is over 150 pages and will take some time for us to fully review.

However, from the FCA’s solicitors, Herbert Smith Freehills (click here to see their latest Test Case update) it is clear that a number of policies, in the main and broadly speaking do provide insurance cover for business interruption losses as a result of COVID-19.

Those clients who have been affected by COVID-19 should see this as welcome news. We will be contacting those who have let us know that they have been affected. If you think you have been affected but have not contacted us yet please get in touch.


Who could be affected by the judgement?

The FCA test case considered 21 policy wordings from 8 insurers. This was due to certain wordings in the following extensions: Non-Damage Denial of Access / Public Authority Clauses as well as specific infectious Disease Extensions.

The FCA estimates that there are 700 types of policies across 60 insurers and 370,000 policyholders that could potentially be affected.

A list of the 21 sample wordings are provided on the FCA website, click here to view the list


A quick view

The court ruled that most of the policies respond to COVID-19, but the insurance industry will need to apply the judgement to the factual circumstances in each case.

The 8 defendants are not liable across all 21 different policy wordings, each case will need to be considered in light of the judgement and considering the scenarios the judgement used to demonstrate alternative outcomes.


So everyone who has been affected by COVID-19 can claim for their Business Interruption?

Unfortunately, not, it is still the case that the majority of policies for many insurers, did not provide cover for pandemic’s and the policy wording of their business interruption Insurance extensions are not unclear, leaving no avenues to make a claim for any losses.

This review only included policies where the insurers’ policy wordings were ambiguous, unclear and therefore left doubt which required clarification.


What we are doing for you

We at Flint insurance are working with our legal experts and the insurers to fully understand the ruling and where possible process claims for our customers.

If you are unsure about anything contained in this release, or any aspect of your insurance, please do not hesitate to contact your Flint Insurance contact.


What happens next?

It is likely some of the insurers will appeal the judgement, but this does not stop you seeking a settlement.

The courts have indicated that they will progress any appeal to the higher court which should keep the speed of development moving along.

Details will be published by the FCA and we will keep you up to date. If you want to speak directly to the legal advisors of the FCA you can, requests need to be made by 5 pm on the 17th of September.

Please email the FCA by clicking here stating only the word ‘Meeting’ in the subject line of the email and stating your availability in the body of the email.

Flint Insurance will be able to support you through any discussions and will be engaging on behalf of our customers with the FCA.

FCA updates can be found by clicking here to visit their website.

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