On 8 December 2022, Aaron Le Marquer and James Breese from our Policyholder Disputes team presented a webinar on Lexology looking at Covid-19 business interruption decisions in England and Wales following the conclusion of the FCA test case, as well as identifying upcoming litigation intended to address outstanding issues.

This session was offered to help attendees:

• Gain an understanding on the current status of Covid-19 business interruption coverage in England and Wales;
• Understand key issues affecting the quantification of Covid-19 business interruption claims;
• Be alerted to forthcoming developments that may resolve outstanding coverage issues; and
• Obtain practical insight into protecting the policyholders’ position in relation to unsettled claims.

You can watch a recording of the webinar in full here.

In summary: the past, present and future of BI decisions

Aaron began the session by noting that significant progress has been made for policyholders on establishing coverage in a Covid-19 context in England and Wales, especially compared to some other jurisdictions. An FCA test case was filed promptly with judgment arriving in September 2020.

Subsequent cases established further precedents on these issues, leading to the concurrent rulings in Stonegate v MS Amlin, Zurich & Liberty and two other cases which first tested the issues of aggregation, causation and government support. Aaron and James provided full overviews of each of these themes, also available as articles in the prior links.

The most recent rulings on BI leave unresolved issues including:

• At the premises (ATP) disease clauses
• Prevention of Access clauses
• Loss of rent
• The Section 13A Insurance Act

A key theme across the presentation was the continued uncertainty surrounding many of these core issues. On causation in particular, the presiding judge Mr Justice Butcher noted that “what answers can be given at this stage may leave further issues to be addressed by way of evidence and argument at a later stage.”

Mr Justice Butcher granted permission to Stonegate to appeal his decision on furlough (as well as certain aspects of his decision on aggregation.). The position in relation to furlough is also therefore not yet final and will be reconsidered by the Court of Appeal in 2023. Until then, policyholders’ position in relation to any deductions should remain reserved.

Key takeaways

The presentation concluded with a summary of the current state of play in BI litigation in England and Wales, and key takeaways for policyholders and practitioners.

• The FCA test case established coverage under radius disease and hybrid clauses.
• There is no prospect of coverage under damage-linked BI in England and Wales, as has been mooted in other jurisdictions.
• ‘Any one loss’ or ‘any one claim’ Prevention of Access clauses are likely to aggregate loss by premises.
• ‘Occurrence’ based clauses are likely to aggregate loss by government action (this is subject to appeal).
• Insurers may deduct furlough and business rates relief from BI indemnity before application of limits (this is subject to appeal).
• Coverage under untested Prevention of Access clauses remains subject to further litigation in 2023.
• Coverage under ‘At the Premises’ disease clauses will be tested in April 2023.
• Coverage of claims for Loss of Rent remains untested.
• Damages for late payment may be available, and the application of S13A of the Insurance Act remains untested.

You can find further information regarding our expertise, experience and team on our Policyholder Disputes pages.

If you require assistance from our team, please contact us.

Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.