Financial Conduct Authority v Arch Insurance (UK) Ltd & others

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Financial Conduct Authority v Arch Insurance (UK) Ltd & others
Badge of the Supreme Court of the United Kingdom.svg
Court Supreme Court of the United Kingdom
Decided15 January 2021
Citation[2021] UKSC 1
Case history
Prior action[2020] EWHC 2448 (Comm)
Court membership
Judges sitting Robert Reed, Patrick Hodge, Michael Briggs, Nicholas Hamblen, George Leggatt

The Financial Conduct Authority v Arch Insurance (UK) Ltd & others [2021] UKSC 1 is a United Kingdom Supreme Court case determining whether commercial insurance policies for business interruption cover claims due to the COVID-19 pandemic and consequent lockdowns. [1] [2] [3] The case has implications on disputed business interruption claims worth at least £1.2 billion and affecting 370,000 businesses, primarily in the hospitality and entertainment sectors. [4] [5] On 15 January 2021, the Supreme Court found in favour of the claimants. [3] [6]

Contents

Background

To prevent the spread of COVID-19, the UK government locked down the country in March 2020, causing businesses to temporarily close, particularly in the hospitality and entertainment sectors. [7] [8] This lockdown resulted in heavy financial losses to businesses. Thousands of businesses submitted claims under insurance policies that covered interruption of business, but insurers denied paying out, saying their policies did not cover the pandemic. [8]

Around 400 companies had submitted complaints to the Financial Ombudsman, claiming that they had been wrongfully denied payouts. [9] Figures from the Association of British Insurers during the first lockdown in March 2020 estimated that the total cost of business interruption claims to be £900 million. [3] Insurance cover varies between providers, with different policy wordings; some insurers stated that they don't cover diseases not explicitly named in the policy, other insurers stated that only local outbreaks were covered. [10]

A test case was brought by the Financial Conduct Authority with the support of eight insurance companies, to test policy wordings in court and to determine what wordings could constitute a valid claim. [6] [11] The case was the first time the Financial Markets Test Case Scheme [12] has been used, [13] which allows bringing a test case to provide legal clarity on issues of general importance. [14]

Discussing this situation in a Chartered Institute of Insurance podcast in May 2020, the Chartered Institute of Insurance president, a director of the NFU Mutual, Nick Turner (at the time sales and agency director, and subsequently CEO) stated that he thought this setting would have a bad impact on affected policyholders's welfare and mental health and said:

Trust is important everywhere in insurance...we have a product which is a promise essentially [I encourage] individuals to think about how they build or destroy trusts. ..I have written little essays about this that so many have found helpful... So many people's lives and businesses have been affected in tragic and possibly permanent ways... if you haven't written a policy wording very precisely to protect the insurance company and bring clarity to the consumer, then that is where the problems lie... we have to work to renew trust with certain customers [who feel they have not been treated fairly], it will be challenging this is going to run and run... we need to work... [to have a] better solution in place if your business has gone into incredibly difficult positions or even administration [because of a problem with cover] nothing is going to put a smile on your face...

At first instance in the High Court

The case was initially heard at the Commercial division of the High Court of Justice. [1] [9] The trial took place over 8 days, between 20 and 30 July 2020 by a court of two judges. [15] The 162-page ruling was given on 15 September 2020. [15] Analysing 21 different types of policy wording, the High Court found substantially in favour of the FCA. [16] [13] The ruling did not find the insurers were automatically liable for all the tested policy wording claims. Instead, the regulator stated that each policy would have to be tested against the judgement to determine coverage. [9]

In response to the judgement, the FCA said the ruling had "substantially found in favour of the arguments we presented on the majority of the key issues". [16] The Association of British Insurers stated in response that business interruption policies "are not generally designed, priced or sold to cover unspecified global pandemics". [17]

On appeal in the Supreme Court

The High Court's decision was appealed directly to the Supreme Court, bypassing the Court of Appeal in a rare process known as a leapfrog appeal. [2] [18] [19] The Supreme Court gave permission to an appeal on 2 November 2020. [15]

Arguments

The Supreme Court heard four days of arguments, from 16 to 19 November 2020, [6] [20] considering 13 of the 21 types of policy wording considered by the High Court. [17] The parties sought to clarify the interpretation of clauses which cover for business losses in cases of: a "notifiable disease" at or near the business premises; prevention of access to business premises due to public authority intervention; an estimation of business performance had the disruptive event not occurred. [21]

On the disease clauses, the court held that while there was a variation across policies in the wording of these clauses, none of these differences materially altered their interpretation. [22] Insurers argued that business interruption cover only covered local outbreaks of COVID-19. The High Court held that whether the outbreaks were local was relevant because business disruption had been caused locally, as a result of the broader pandemic. [16] The Supreme Court found that the clause covers only occurrences of the effects of the disease, inside the specified geographical area. [23]

Insurers argued that their business interruption policies did not cover unprecedented events or restrictions, such as the March lockdown in the United Kingdom, [6] [24] adding that payouts should be denied in line with strict interpretations of the policy wording. [3] A lawyer for MS Amlin told the court only business loss claims as a result of COVID infections within a local, 25-mile radius of the insured property were covered, specifically excluding claims as a result of a nationwide lockdown. [11]

Decision

The Supreme Court unanimously found in favour of the claimants on 15 January 2021. [3] [6] Nicholas Hamblen, handing down the decision, said "the FCA's appeal is substantially allowed and the insurers' appeals are dismissed." [3] Michael Briggs, another Supreme Court Justice, said that the insurers' claims seemed, to him, to be "clearly contrary to the spirit and intent of the relevant provisions of the policies in issue", adding "it is clear from the use of the definition of a 'notifiable disease' in most of the relevant clauses[] that Covid-19 [when it appeared] fell squarely within the types of disease for which all the relevant disease and hybrid clauses provided cover." [17] [24]

Although only eight insurers were named parties in the case – including Hiscox, MS Amlin, QBE, Arch, Zurich, and Royal & Sun Alliance – the ruling provides guidance for as many as 700 policies from 60 insurers selling similar products, affecting up to 370,000 businesses. [3] [6] Labelled a "complex ruling", the decision is expected to guide decisions by the Financial Conduct Authority, the Financial Ombudsman, and the insurance sector, on similar insurance claims involving disease clauses, business access to properties, and lost earnings. [6] [25]

It is widely accepted that the test case would not dispose of all questions of liability with one legal analysis of the cases saying in June 2021:

for a majority of policyholders, the end is not yet in sight... and it was always acknowledged that the Test Case would not be capable of resolving all outstanding issues in relation to Covid-19 BI coverage. For some policyholders, the issue of whether their policy responds at all to losses flowing from the pandemic and the UK government response remains undetermined." [26]

The Association of British Insurers has also stated "[t]he test case does not apply to all business interruption insurance policies" [27] and the Commercial Court is now managing coordinated cases to deal with the unresolved issues. [28]

The position now may be that authority of the test case to be used to decline certain policies is significantly undermined with the Supreme Court, the Arbitration and most recent High Court authority departing from the reasoning in the case at first instance.

This has resulted further litigation.

These have generally been favourable to policyholders and resolved against insurance companies.

China Taiping Arbitration

In September 2021, an arbitration in The Policyholders Specified in Schedule 1 to the Arbitration Agreement v China Taiping Insurance (UK) Co Ltd took place with Lord Mance as arbitrator. In this arbitration, citing Lord Neuberger in Arnold v Britton [2015] UKSC 36; [2-15] AC 1619:

"commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language."

and he found that policyholders previously held not to have had contacts that responded were in fact covered. [29]

Corbin & King case

In February 2022, in the case of Corbin & King Ltd & Ors v AXA Insurance UK Plc (Rev1) [2022] EWHC 409 (Comm), the reasoning of the lower court for parts of the judgement that was not appealed to the Supreme Court was subject to significant judicial criticism and over turned in significantpart. [30] This case cited China Taiping Insurance Arbitration with approval.

Greggs case

Greggs PLC v Zurich Insurance PLC, CL-2021-000622 had a trail in July 2022. Judgement in this case went in favour of the policyholders. [31] The defendant insurance company therefore settled the claim. [32]

Various Eateries

Various Eateries Trading Ltd v Allianz had a trial of preliminary issues will take place in the second week of July 2022. [33] Judgement in this case was favourable to the policyholders. [34]

London International Exhibition centre v. Allianz

The Court of Appeal has ruled against insurance companies in five linked business interruption cases [35] stemming from COVID-19 closures. Upholding a previous judgment, the court confirmed that policies covering notifiable diseases "at the premises" include losses from national lockdowns, similar to policies covering a wider area. They also clarified that "Public Authority" advice includes national government actions. The ruling, delivered on September 6th, favours policyholders like London International Exhibition Centre plc and other hospitality businesses. [36]

Current litigation

Multiple cases are emerging out of the legal landscape associated with this case; they are being handled as linked cases by the Commercial Court. [37] [28] [35]

Ann Grimes t/a the Cleveland Arms and others v Liberty Mutual

In November 2024, a Case Management Conference (CMC) was held in the High Court of Justice (Business and Property Courts of England and Wales) concerning claim number CL-2023-000596, The One Hairdressing Limited and others v. Liberty Mutual Insurance Europe SE, and four other related actions. These linked cases were:

The claimants in these actions are represented by Barings Law, while the defendants, the Liberty Mutual Insurance entities, are represented by DAC Beachcroft.

Following an agreement reached between the claimant and defendant parties, the court issued an order for the determination of several preliminary legal issues. These issues include:

To address these preliminary matters, a four-day hearing has been scheduled to take place in November 2025. [38]

Alison Toulson (trading as Kaleidoscope) and 90 other claimants v American International Group UK Ltd

In April 2024, a Case Management Conference (CMC) was convened in the High Court of Justice (Business and Property Courts of England and Wales) for claim number CL-2023-000649. Barings Law represents the claimant, a collective of numerous small business owners, while Kennedy's Law LLP acts for the defendant insurer, AIG. The policy wording at the heart of this litigation originated from the broker, Morgan Richardson. The court has been made aware that approximately 50 additional policyholders, holding similar AIG policies with comparable wording and represented by solicitors RLK and Hugh James, also exist.

Drawing from an agreement reached in the related Alison Toulson case, the court had ordered a two-day hearing to address preliminary issues concerning the interpretation of the policy wording. However, the parties in this particular case (CL-2023-000649) have since agreed to a stay of proceedings, and the previously scheduled trial date has been vacated.

NFU Mutual Class Actions

There are currently at least two live class actions being brought against NFU Mutual concerning business interruption caused by Covid-19:

The developments leading up to this position followed the following timeline. With the onset of the coronavirus pandemic in December 2019 and the subsequent imposition of lockdowns starting in March 2020, NFU Mutual immediately communicated its position that it would not be honouring any business continuity claims related to policies sold by the company, stating: [46] [47] [48]

the majority of customers will not be covered for Coronavirus... as a Mutual, one of our duties to our members is to remain solvent. [49]

Policyholders quickly contested this position. In April 2020, just a month after the first lockdown was ordered, an NFU Mutual customer already raised concerns about the insurer's business interruption stance while giving evidence to the House of Commons Treasury Select Committee. [50] The early doubts were well-founded. NFU Mutual's initial denial of coverage has since been proven wrong concerning cancellation of advance bookings, and they later changed their stance on COVID-related claims for some Home and Lifestyle policies. This situation has created significant resentment, with one affected policyholder stating: [51] [52]

They have quite happily taken the premiums for the last 15 years but the one time I need it I'm not going to get any help off them. It's disgusting that the insurance industry is allowed to do this". [53]

Despite the High Court's initial judgment in September 2020 and the subsequent UK Supreme Court's decision in January 2021 regarding the business interruption test case, NFU Mutual released a statement maintaining its position that it had no obligation to pay out claims related to Covid-19 business interruption. [54] [55] [56]

In 2021, an article named NFU Mutual among several firms alleged to have deliberately delayed COVID-19 claims to avoid pay-outs, anticipating that businesses would fail before payment was required. [57]

The Professional Association of Self-Caterers commented that NFU Mutual has faced significant challenges related to Covid, with the latest legal action over Business Interruption payouts being part of this. They highlighted an inconsistency where cheaper Home and Lifestyle policies paid out for Covid claims, unlike the more expensive ones, a situation that remains unresolved pending the outcome of litigation. [58]

The enduring dispute, still before the court in April 2025, centers on non-damage denial of access cover extensions. NFU Mutual's stance is that the extension applied only to losses from closures or restricted access imposed by authorities after a specific incident. They explained their understanding was that the cover was intended for events like "a bomb scare or a gas leak or a traffic accident." [59] [60]

Contrary to NFU Mutual's initial public statements during the early pandemic, UK regulators identified several of their policies as 'potentially affected' from March 2020. This indicated a potential for coverage of Covid-19 related losses, leading to these policies being (partially) considered in the Financial Conduct Authority test case. [61] [62]

In a letter dated 22 January 2021, the FCA informed insurance CEOs that the Supreme Court's test case ruling on business interruption was not the final resolution. The regulator anticipated further related lawsuits and stressed that insurers should recognize their stronger position relative to policyholders. To ease financial burdens, the FCA advised insurers to limit the scope of disagreements for quicker and cheaper settlements. Additionally, the FCA stated that insurers should pay policyholders' reasonable legal costs and not seek their own in cases that ultimately clarified policy terms and coverage gaps for the insurers' benefit.. [63]

Following their public statements asserting NFU Mutual's obligation to pay business interruption claims, these policyholders organized into a litigation group and formally announced their plans to initiate a group action against the insurer, engaging Penningtons Manches Cooper LLP as their legal representatives. [64] . [65] [66] [67]

At stake is a potentially multi-million pound liability for NFU Mutual. [68]

Concern has been expressed at multiple AGMs that this scale of liability has never been set out. [69]

The situation has exposed NFU Mutual to criticism and caused it to express regret and concern. In a Chartered Institute of Insurance podcast at the beginning of the pandemic in May 2020, Nick Turner (at the time sales and agency director, and subsequently CEO) stated that the company would "have to work to renew trust with certain customers [who would be put in] incredibly difficult positions and [might lose their businesses]", but that this would be "challenging" and would "run and run". [70] Turner accepted that policyholders not receiving business interruption payments could impact their welfare and mental health in this same podcast. [70] Chairman Jim McLaren echoed this sentiment in a separate podcast commentary, emphasizing the critical and often overlooked issue of mental health, particularly for those facing significant challenges. He affirmed that the Mutual understood that psychiatric harm could be being done to policyholders. [71]

Commenting on this situation an impacted policyholder has said:

[i]n good faith, we paid our premiums to NFU Mutual for years to protect us ... we reached for the comfort and the security of the longstanding relationship with NFU Mutual and it turned to total ash." [72]

The CEO has stated that:

Trust is important everywhere in insurance ... If you haven't written a policy wording very precisely to protect the insurance company and bring clarity to the consumer, then that is where the problems lie.. We [will] have to work to renew trust with certain customers [who may have been let down], it will be challenging this is going to run and run  ... if [the issues around policies we have sold have put policyholders] into incredibly difficult positions or even administration, nothing is going to put a smile on [their] face [73]

Settled cases

Smart Medical Clinics Ltd v Chubb European Group, [74] CL-2021-000472, has settled. Another case that appears to have settled is Altrincham Association Football Club v AXA, CL-2021-000733 (solicitors Fletcher Day for the Claimant, DAC Beachcroft for the Defendant) involves questions as to the effect of cover in respect of disease 'manifesting itself at the [relevant] premises' and what causative effect such cases have to have.

Midlands Components Ltd v QBE UK Ltd

In May 2024, a Case Management Conference (CMC) took place in the High Court of Justice (Business and Property Courts of England and Wales) concerning claim number CL-2023-000070, with Barings Law representing the claimant and Clyde & Co LLP representing the defendant. During this CMC, directions were established for a forthcoming trial.

The central legal question in this case concerned causation in instances where a business experiences multiple periods of loss within the insurance period. The defendant insurer argued that the policy could potentially respond to more than one instance of loss. However, this was conditional on each loss being demonstrably caused by at least one manifestation of COVID-19 within a 25-mile radius of the insured premises. Furthermore, each such loss would need to be a separate and distinguishable effect from other COVID-19 manifestations within the same radius that had already resulted in an insured loss under the policy.

The trial for this matter had been scheduled for May 2025. However, the parties have since reached a resolution to their dispute, and the previously set trial date has been vacated. [75]

Arsenal Football Club and others

On October 12, 2023, a Case Management Conference (CMC) was held in a legal action initiated by several Premier League football clubs. The case encompassed a range of legal questions, notably concerning the limits of their insurance policies. Following the CMC, the court issued directions for a trial specifically focused on matters of liability. However, the involved parties ultimately reached a resolution to their dispute before the scheduled trial commenced.

Oaxaca / Flat Iron

In coordinated proceedings before the court, Case Management Conferences (CMCs) were held on October 11, 2023, for two related actions against QIC Europe Limited: Oaxaca Limited trading as Wahaca v. QIC Europe Limited (CL-2023-000284) and Flat Iron Steak Limited v QIC Europe Ltd (CL-2023-000349). Representatives for the intended claimant in The Fulham Shore Limited v QIC Europe Limited also attended.

The Oaxaca and Flat Iron cases presented a number of analogous legal questions concerning the interpretation of QIC's policy wording, as well as matters of quantum (the amount of damages). Some liability issues in the Oaxaca case were addressed through a summary judgment and interim payment application heard in February 2024 before Cockerill J ([2024] EWHC 394 (Comm)). The court granted summary judgment on certain policy construction points and granted permission to appeal those specific issues. However, the application for an interim payment was unsuccessful.

Following these preliminary steps, directions were issued for a trial to address the remaining issues, including the determination of quantum. Subsequently, the parties involved in both the Oaxaca and Flat Iron litigations have reached a resolution to their respective disputes. [76]

PizzaExpress

In the PizzaExpress case, a preliminary legal question arose concerning how the "one occurrence" policy limit applied to the sub-limits within their insurance policy. A hearing on this specific issue took place on May 19, 2023, and the judgment was delivered shortly after on May 26, 2023 ([2023] EWHC 1269 (Comm). The Court of Appeal subsequently refused permission to appeal this judgment. Following these legal determinations on the preliminary issue, the case was ultimately settled between the parties. [77]

Reception

Since the issue was originally raised, insurance policies have been amended to explicitly state whether cover is provided for lockdown measures. [6]

In reaction to the Supreme Court's ruling, Huw Evans, director general of the Association of British Insurers, stated that "the insurance industry expects to pay out over £1.8bn in COVID-19 related claims". [24] Hiscox stated that only a third of its policies would have to pay out, at an extra cost of $48 million (equivalent to £35 million) to the company. [3] [17] [5] The law firm Reed Smith declared the judgement "a catastrophic outcome for insurers". [17]

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