Progress towards the eight-day hearing of the business interruption insurance test case, due to start on 20 July, will be in accordance with largely pre-agreed Orders made today by Butcher J in the course of the first (remote) Case Management Conference which lasted just over four hours.
Uncontroversially, the test case was agreed as suitable for the Financial Markets Test Case Scheme set out at CPR PD 51M. The need for speed – “expedition” – was agreed and the case will be listed for an eight-day hearing that will begin on Monday 20 July. It will be heard by Butcher J, who ran today’s CMC, sitting alongside Flaux LJ. Insurers’ defences are to be served by 23 June, following which potential interveners will have 24 hours to make their case for being heard.
During the CMC it was pointed out that although the regulator is acting as named claimant against eight insurer defendants, it is not in any other sense an adversary of regulated insurers. In the FCA’s view, the necessity for swift resolution of the BI insurance coverage debate – which stems from its statutory objectives relating to market integrity and consumer protection – however requires it to adopt an adversarial litigation stance when putting forward arguments in relation to BI insurance coverage and representing as far as possible the views of policyholders. It was said that some 8,500 claims have so far been notified to the FCA during this process.
It appears that some of the insurers involved in the test case are giving active consideration to adducing expert evidence. Butcher J ordered that applications would need to be made to the court in order to rely on expert evidence at trial in so far as it might not be possible to agree that step between the parties on a ‘best endeavours’ basis. In any event, this topic will be revisited at the next CMC scheduled for 26 June.
It is very likely that the detailed text of the orders made at the first CMC today will be posted on the FCA’s dedicated business interruption page by the end of the week.
Alistair Kinley, Director of Policy & Government Affairs