Business interruption insurance test case fast-tracked to Supreme Court

To recap, the High Court gave permission in October for parties’ ‘leap frog’ appeals to the Supreme Court (SC) following its decision in September. Now, on 2 November, the SC has agreed to hear the appeals. That was widely expected but what is much more unusual is that the SC hearing will take place only a fortnight later, beginning on Monday 16 November.

Given the urgent need to resolve the questions raised by the test case the Supreme Court has cleared time in its lists for a four day remote hearing beginning on 16 November. The irony of this hearing about insurance cover for losses sustained during first Coronavirus lockdown taking place in the middle of the second is almost palpable – even if the market in business interruption insurance may have shifted significantly in the intervening months.

The FCA has not only reported the news from the SC on its own website on 4 November, but it also provided a useful set of documents aimed at helping policyholders and others understand the judgment and the orders made by the High Court. The FCA describes these documents as being:

  • table setting out the appeal status and the most relevant declarations and paragraphs of the judgment according to policy type in the representative sample.
  • The representative sample of policy wordings with a contents page, which can be navigated to by clicking on the policy type in the table above (there is no other change to this document).
  • contents list for the High Court judgment.

Also on 4 November Treasury Minister John Glenn MP’s answer to a Parliamentary question on business interruption insurance provided a useful summary of the issue and reconfirmed that the government is closely monitoring developments.

Both the Minister and the FCA refer to ongoing discussions which might resolve the issues, but with the SC hearing just over ten days off the prospects of any settlement before then would appear to be fairly slim. So, assuming the hearing proceeds, the next key stage will be the judgment from the Supreme Court. But once the hearing concludes there will be little more than a month left of the Court’s term – which ends on 21 December – so a critical question will be whether judgment might be delivered before then?

Alistair Kinley, Director of Policy & Government Affairs

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