Information about the FCA business interruption Test Case
On 15 September, the FCA published the Court’s judgement in the Business Interruption Test Case which some of you may have already seen in the news. For further information you can visit the FCA website here.
Although Aviva was not one of the eight insurers who are directly participating in the test case, we continue to be supportive of the FCA’s approach which we hope will bring clarity and finality for affected customers. It’s important that we take the time to consider the High Court’s judgment and any appeals which the parties may make and we will continue to closely monitor this and any ultimate ruling made to understand the impact on your clients and act accordingly.
We need to await the final determination of the Test Case before reconsidering any relevant claims that have been declined, and complaints relating to COVID-19 made on affected policies, to ensure they are handled in line with the court’s decision.
For customers who have received a communication that their claim or complaint “will not be affected by the Financial Conduct Authority’s forthcoming Test Case process”, this remains the case and the Test Case judgment will not affect the decision we have made.
If you/your customers have received a communication that your claim or complaint “may be affected by the Financial Conduct Authority’s forthcoming Test Case process”, this remains the case and we will contact you/them further once final resolution has been confirmed as having been reached in respect of the questions in the Test Case that are relevant to our assessment of their claim or complaint. Final resolution will not occur until all rights of appeal have been concluded. If, in light of the proposed scope of appeals, we consider that the issues that were considered by the Test Case that are relevant to our assessment of their claim or complaint have been finally resolved, and would not be affected by the appeals, we may contact you/them before the outcome of the appeals in the UK Supreme Court.
Not all business interruption policies insured by Aviva are affected by the Test Case, you can find more information here
Update: the court handed down its judgment on the Test Case on Tuesday 15 September 2020. On 2 October 2020, a hearing took place during which the court heard the parties’ arguments on the appropriate declarations to make and granted the FCA, six of the insurers and one of the intervenors* certificates for a “leapfrog” appeal to the Supreme Court. On 20 October 2020, the FCA made the final declarations and the relevant parties’ applications to appeal to the Supreme Court available on its website.
We are carefully considering the final declarations and the scope of the applications to appeal, and any impact that these have on claims and complaints under relevant Business Interruption policies on which Aviva provides cover and which we have previously identified as potentially affected by the outcome of the Test Case.
The Supreme Court still needs to determine whether it will accept the applications to appeal and, if so, on which grounds it will allow the appeal to proceed. If the appeals are accepted and proceed, we will update this page with further information on the expected timing for the appeal in due course.
First Published – 16/09/2020
Updated – 22/09/2020
Updated - 28/09/2020
Updated - 22/10/2020
*Arch Insurance (UK) Ltd; Argenta Syndicate Management Ltd; MS Amlin Underwriting Ltd; Hiscox Insurance Company Ltd; QBE UK Ltd; Royal & Sun Alliance Insurance Plc; Hiscox Action Group.
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