Updated: Oct 2, 2020
On September 15th 2020 the verdict of the FCA's Business Interruption test case was announced in favour of the policy holders on whose behalf the FCA brought the case. This is hugely positive for thousands of businesses who have so far been unable to claim for business interruption despite having business interruption clauses which include cover for infectious or notifiable diseases (‘disease clauses’) and non-damage denial of access and public authority closures or restrictions (‘denial of access clauses’).
The judgment says that most, but not all, of the disease clauses in the sample provide cover. It also says that certain denial of access clauses in the sample provide cover, but this depends on the detailed wording of the clause and how the business was affected by the Government response to the pandemic, including for example whether the business was subject to a mandatory closure order and whether the business was ordered to close completely.
The FCA and Defendant insurers have agreed that they will seek to have any appeal heard on an expedited basis, given the importance of the matter for so many policyholders. This includes exploring the possibility of any appeal being a ‘leapfrog’ appeal to the Supreme Court (rather than needing to be heard by the Court of Appeal first).
For full details of the press release see https://www.fca.org.uk/news/press-releases/result-fca-business-interruption-test-case