This afternoon the House of Lords will debate the draft Whiplash Injury Regulations and related draft FCA rules. Both will take effect on 31 May 2021. The former sets the tariff for damages recoverable for whiplash injuries in which the symptoms last for less than 24 months – at significantly lower levels than the previous common law levels – and provide detail around the ban on settling whiplash claims without a medical report. The latter extends the powers of the FCA to police this ban.
The regulations will be passed by Peers – the enabling Act already has, back in 2018, and earlier versions of the tariff were available then – and in any event whiplash reform remains a government priority. In that regard, the MoJ’s recent robust response to criticism of the tariff is worth noting (at from page 4 here).
After this afternoon’s Lords debate the regulations will then pass to the Commons where they should be taken some in the early part of next month.
On each of the last three Fridays the FCA has posted really important information about the business interruption insurance test case.
On Friday 15 January the content included the Supreme Court’s judgment that day, press releases and summaries of the decision. Last Friday saw the publication of the FCA’s Dear CEO letter setting its expectations of insurers and the release of a table indicating the outcome of the test case by policy type.
This week, policyholders are the regulator’s target audience, with the release of a policy checker tool and an FAQ web page for insured businesses looking “to find out if your insurance policy may cover business interruption losses caused by coronavirus (Covid-19) as a result of the FCA’s test case and what you can do next.”
Alistair Kinley, Director of Policy & Government Affairs firstname.lastname@example.org
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.