Recent developments in the case of X v Kuoni case indicate the tide maybe turning in favour of the Claimant.
As outlined in a previous blog, found here, readers will recall the Supreme Court referred aspects of this case to the Court of Justice of the European Union (CJEU) in July last year.
Whilst the CJEU is yet to provide its judgment in respect of the reference, Advocate General Szpunar has published his opinion (full opinion here), and whilst not binding, it gives an indication of what the CJEU is likely to determine.
This is a very brief overview of very recent developments and is most definitely not an analysis of the arguments raised earlier this month before the Supreme Court, other than by way of a reminder that:
- the competing arguments of the parties – the FCA and the interested insurers – focus on the question of whether or not the range of representative business interruption (BI) wordings provide indemnity for operating losses sustained by policyholders during the first ‘lockdown’ of 2020, and
- the decision at first instance examined this by grouping the relevant clauses into three broad types – disease clauses, prevention of access clauses and hybrid clauses – interpreting each in its context, dealing with causation, prevalence of Covid-19, counterfactuals and with the effect on claims adjustment of so-called ‘trends’ clauses.
On 10 November 2020 the Scottish Parliament’s Health and Sport Committee heard further evidence on the Liability for NHS Charges (Industrial Disease) (Scotland) Bill, taking evidence from the Scottish Government Minister for Public Health, Sport and Wellbeing, Joe Fitzpatrick MSP and Stuart McMillan MSP.