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May 01, 2020

FCA to seek legal clarity on business interruption (BI) insurance

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The Financial Conduct Authority ("FCA") has today announced that it intends to seek legal clarity on business interruption (BI) insurance in order to resolve doubt for businesses who are facing uncertainty on their claims.

Click here for the complete announcement

Some extracts from the announcement as follows:

"The FCA is seeking to bring to court what it believes are the key relevant cases which provide the greatest clarity on specific policy clauses as soon as possible to get an independent view on these disputed BI insurance policies if there remains unresolved uncertainty. The cases placed before the court will be carefully chosen as a representative sample of the most frequently used policy wordings that are giving rise to uncertainty.

"The FCA will seek to put cases before the Court on an agreed basis with the insurers concerned in order to get the fastest possible judgement. Individuals can still access the Financial Ombudsman or the courts if they qualify and wish to do so.

"The FCA is writing to a small number of firms seeking clarification about whether they are declining, or intend to decline BI claims. The FCA expects these firms to reply to it to clarify their position, by no later than 15 May 2020. Based on the information obtained, the FCA will consider which firms to ask to join the court process.

Christopher Woolard, Interim Chief Executive of the FCA, said:

"We have been clear that we believe in the majority of cases, business interruption insurance was not purchased to, and is unlikely to, cover the current emergency. However, there remain a number of policies where it is clear that the firm has an obligation to pay out on a policy. For these policies, it is important that claims are assessed and settled quickly. There are also some other policies where firms may consider there is no doubt about wording and decline to pay a claim, but customers may still consider there is genuine uncertainty about whether their policy provides cover.

"Our intended court action is designed to resolve a selected number of key issues causing uncertainty as promptly as possible and to provide greater clarity for all parties, both insured and insurers. It is clear that decisive action is appropriate given the severity of the potential consequences for customers."

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The issues around BI policies are complex and there are significant differences in policy wording. The cases placed before the court will be carefully chosen as a representative sample of the most frequently used policy wordings that are giving rise to uncertainty.

The FCA is writing today to a small number of firms seeking clarification about whether they are declining, or intend to decline BI claims, seeking answers by no later than 15 May. Based on the information obtained, the FCA will consider which firms to ask to join the court process.

The FCA will not seek to determine how much should be paid under individual policies.