FCA BII Test Case: Final Decision

Read the final decision of the Supreme Court and responses from our capacity providers in relation to the FCA Business Interruption test case.

Below you will find:

• Allianz Update
• Aviva Update
• Pen Underwriting Update
• AXA XL Update – Tour Operators/Agents Office Combined policy
• Allianz – Submitting a claim under Business Combined policy
• Allianz – Touchstone Underwriting Retailer policy

Allianz Update: FCA Business Interruption test case appeal outcome

Following today’s announcement of the Supreme Court’s ruling on the FCA’s business interruption case we wanted to advise you of our next steps. Although Allianz was not a defendant in the test case, we welcome the clarity the judgment will provide and have continued to make payments on claims where we believe there is valid cover.

As you will appreciate, the content of the judgment is complex in nature and so we’ll require some time to digest the points of law and understand how this will affect customers. We’ll send a holding letter to all affected customers by 22 January in line with the FCA guidelines. Following this, a further letter will be issued detailing how the outcome of the judgment affects your customer’s claim.

Where a claim has previously been repudiated, this decision remains unchanged.

New BI claims

For any customers who have not previously contacted us to make a BI claim but would now like to do so, they can continue to visit our Claims pages on our website.

More information
For further information on Allianz’s approach during the FCA BI test case, please visit our website for the latest updates.

Thank you for your ongoing support as we work through the detail of this ruling.

Aviva Update: FCA Test Case Update

You will be aware that there has been a great deal of comment in the press regarding the outcome of the Supreme Court judgment in the FCA business interruption Test Case.

In order to provide some clarity please note:

• If your client has received a communication stating that their claim or complaint will not be affected by the Financial Conduct Authority’s Test Case process, this remains the case and the Supreme Court judgment will not affect the decision we have made.  We will therefore not be engaging in any further communications in respect of such claims for business interruption as a result of Covid-19.
• If your client has received a communication that their claim or complaint may be affected by the Financial Conduct Authority’s Test Case process, this remains the case.  We will contact you further once we have assessed the impact of the Supreme Court judgment on their claim or complaint.

For most Aviva policies there is no cover for business interruption as a result of the Covid-19 pandemic and these were outside the scope of the FCA Test Case.  For further details, please visit our website https://www.aviva.co.uk/business/support/the-impact-of-coronavirus/business-Insurance/business-interruption/ 

Pen Underwriting Update: FCA Test Case Update

FCA Business Interruption Test Case update

On 15 January 2021, the Supreme Court’s judgment brought welcome clarity to some very complex issues relating to COVID-19 business interruption claims and the underlying insurance policies, having heard appeals brought by the Financial Conduct Authority (FCA) and various insurers.

The Court found substantially in favour of the FCA on those matters which were the subject of the appeal, and the judgment represents the final step in the legal process.

Consequently, we are in the process of swiftly reviewing the judgment in detail, to determine the specific impact on each and every claim and will be contacting all customers affected by the outcome as soon as possible.

We recognise that it continues to be a very challenging time for many UK businesses, and welcome this final resolution which will enable Pen Underwriting to reach agreement on all valid claims as soon as possible, a process that is already underway in some cases.

Does the judgment mean my claim will be paid?

The Supreme Court judgment provides the final legal position on those specific issues which were taken to appeal by the FCA and the insurers involved in the legal process. If the wording of your policy was similar to those considered by the Supreme Court such that the same principles and interpretation can be applied, and cover is confirmed under your policy, then all valid claims for COVID-19 related business interruption losses will be considered subject to policy terms and conditions.

Is the judgment final?

Yes. The Supreme Court judgment brings to an end the legal process relating to 14 types of business interruption policy wording issued by six insurers and a substantial number of similar policies in the wider market.

What this means for your claim

If we have previously communicated with you regarding your claim to advise that your particular policy wording did not have similar characteristics to those either forming part of the test case or the appeal to the Supreme Court. That is to say, your policy wording was unlike those where the FCA considered it would assist to seek the Court’s views.

What this means is that we are of the considered view that neither the initial judgment from the High Court nor, having considered it carefully, the recent judgment from the Supreme Court, in fact alter the outcome of your claim and, as we have outlined previously, your policy will not respond to COVID-19 business interruption losses. This also means that we will not be reviewing or re-opening your claim as result of the outcome of the FCA’s test case.

AXA XL Update: FCA Test Case Update

Relating specifically to our Tour Operators/Agents Office Cover

AXA XL have provided guidance for clients who hold our Tour Operators/Agents Office policy.

What does this mean?

1. If an insured has already presented a claim and been contacted by an Adjuster from Charles Taylor and subsequently had their claim declined, then that declinature still stands and is not affected by the ruling.
2. If an insured would like to present a claim (and has not yet done so), then we will need them to provide answers to the following questions before we look at whether we can appoint Charles Taylor to further investigate the circumstances of their claim and whether the policy is triggered:

Therefore, please advise whether the insured have been subject to the following:

1. A closure or restrictions placed on the Premises; and
2. The closure or restrictions being as a result of the manifestation of a notifiable human disease at the Premises.

If the answer to the above 1 and 2 is no, then there is no trigger to the policy. If the answer is yes, please contact our claims department and they can appoint an adjuster to investigate with them.

Allianz Update
Submitting a claim under Allianz Business Combined policy

If your client holds our Allianz Business Combined policy and you submit a claim on their behalf for Covid-19 BI, please note the following:

A claim for business interruption under the “Action by Police Authority” extension of the policy, covers business interruption loss which your client suffers as a result of the police preventing access to their premises due to a danger or disturbance in the vicinity of their premises (for example, where the police cordon off the area around your clients premises because of an incident in the locality). It would not respond to losses suffered as a result of the wider coronavirus crisis through the Government’s action to force closure of particular types of business across the country.

Please let us know if there has been some particular danger or disturbance in the vicinity of their premises that caused the police to restrict access to your clients premises, and if so provide more detail on:

• What the incident was and how long it lasted
• The associated restrictions, how long they lasted , and how they prevented/hindered access to your clients premises
• Your clients resulting business losses
• How your clients losses are specific to police action in the vicinity of their premises as opposed to the wider Coronavirus crisis.

If your clients claim is not based on a specific police action in response to some danger in the vicinity of their premises and the interruption to their business is due to the impact of the national Coronavirus crisis, unfortunately your clients losses would not be covered.

We understand that this is not the conclusion that you/your client was hoping for however, we trust that we have outlined our reasons on why we are unable to assist further in the matter. If after making the policyholder aware, they still wish to present a claim to Insurers for review, please contact Amy Mead our Claims Manager.

Allianz Update
Touchstone Underwriting Retailer Policy

Whilst the majority of Insurance policies do not include clauses which provide cover for business interruption as a result of the pandemic, the Touchstone Underwriting Allianz retailer policy included a specific clause as follows;

This extension is not standard to all policies; it is an enhancement which has been included in respect of this specific policy and provides wider cover than is usual.

Additionally, this policy has subsequently been endorsed to amend available cover, and you will therefore need to check your policy schedule for the period of insurance to establish whether this extension may apply.

It should be noted that every claim is reviewed on its own merits, and that this extension is only triggered where businesses were specifically required to close by Government Action or Local Authority and will therefore not apply to any business deemed to be an essential retailer.

Should you believe you have a valid claim under this policy, and have not yet presented a claim, please contact your Insurance Broker or our claims department; Amy.Mead@t-u-l.co.uk to discuss further.