Context
The past week has seen several updates to the Business Interruption Test Case process. These updates included details of the appeals process, outlining that the next stage would be a consequentials hearing, confirmation of the consequentials hearing to be held on 2 October 2020, the release of the associated skeleton argument documents and the leapfrog applications for an appeal to the Supreme Court.
The two most recent updates were published on 2 October 2020 following the consequentials hearing, providing a brief update on the outcome and 6 October 2020 which saw the draft transcript from the consequentials hearing published.
Key points to note
- Lord Justice Flaux and Mr Justice Butcher have made various orders. These orders included a series of declarations as to the effect of the judgment. The FCA intends to publish these as soon as they become available.
- Following the consequentials hearing, the FCA will review the final declarations and decide on next steps.
- Initial indications are that these will include continuing with the application to appeal to the Supreme Court, however the FCA intends to continue discussions with insurers and action groups to agree a mutually acceptable solution which avoids the need for an appeal. This is with the hope of enabling pay-outs on eligible claims to be completed as quickly as possible.
- The High Court granted ‘leapfrog’ certificates for an appeal to the Supreme Court to the FCA, Arch Insurance (UK) Ltd, Argenta Syndicate Management Ltd, MS Amlin Underwriting Ltd, Hiscox Insurance Company Ltd, QBE UK Ltd, Royal & Sun Alliance Insurance Plc and Hiscox Action Group. This means that all parties in receipt of a certificate are entitled to apply to the Supreme Court for permission to appeal.
- Ecclesiastical Insurance Office Plc withdrew its ‘leapfrog’ application in advance of the hearing on 2 October whilst QIC Europe Limited had its application to become a party to the test case rejected.
- It is intended that the content of the sealed order from the court will be published as soon as it is available.
Copies of skeleton arguments and leapfrog applications are available to view on the Business Interruption Insurance page on the FCA website.