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FCA test case on business interruption insurance

We will continue to provide further updates on this significant test case as it progresses.

Headline points from the case management conference (16 June 2020)

The first case management conference (CMC) in the FCA business interruption test case was heard remotely before Mr Justice Butcher today (and live streamed). It set the timetable for the progress of this critical and highly anticipated piece of litigation.

Proceedings were served last week on eight insurers who have denied claims under commonly occurring forms of extensions to business interruption policies on the grounds of coverage and causation. Today’s CMC was listed to deal with general case management and to hear the FCA’s application for expedition and admission to the Financial Markets Test Case Scheme.

In summary:

  • The pilot Financial Markets Test Case Scheme under Practice Direction 51M shall apply to the claim. All parties were in agreement. Mr Justice Butcher acknowledged that insurance claims would not generally fall to be dealt with in the Financial List but the present case raises issues of general importance for the financial markets.
  • The trial of the claim shall be expedited.
  • The next CMC is to be heard remotely on 26 June 2020.
  • The trial is listed to commence on 20 July 2020 with a time estimate of eight days (excluding pre-reading).
  • During the CMC, much emphasis was placed on the need for the parties to work collaboratively in their approach to proceedings.

Significant time was spent debating Directions regarding permission for the submission of both factual and expert evidence. Applications for permission to rely on factual and/or expert evidence are to be filed with the court by 24 June and these matters will be revisited at the second CMC.

Issues which arose regarding expert evidence related to reports which were referenced in the FCA’s Particulars of Claim as to the prevalence of COVID-19 in the United Kingdom and the potential under-reporting of cases, with insurers raising concerns as to the availability of experts in this field to produce reports in such tight timescales, given that most qualified experts are already heavily engaged in advisory work at this time.

Insurers also wanted to ensure that they were able to rely on factual evidence, if they so wished, given that full consideration of potential evidence had not been possible within the short timescales. Topics of evidence which were discussed by insurers included evidence of the Government approach to the Asiatic flu pandemics of 1957 and 1968-9, the effect of COVID-19 on the Swedish economy given the lack of formal lockdown restrictions imposed by the Swedish government and the impact of COVID-19 on certain sectors in the United Kingdom prior to lockdown.

We will continue to provide further updates on this significant test case as it progresses.

For any further information or to discuss the above in more detail please contact Pamela Freeland, Associate on 0151 305 8932 or via email at pamela.freeland@weightmans.com or Sarah Irwin, Solicitor on 0151 305 8950 or email at sarah.irwin@weightmans.com.

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