Introduction
The coronavirus (Covid-19) pandemic and the Government controls imposed as a result are causing a substantial level of loss and distress for businesses, in particular for SMEs. A large number of claims are being made to insurers under the terms of business interruption (BI) insurance policies.
There is continuing and widespread concern about the lack of a positive response of some of those BI insurance policies, and the basis on which some insurers are making decisions in relation to claims.
On 1 May 2020, the Financial Conduct Authority (FCA) released a statement that we intend to obtain court declarations aimed at resolving contractual uncertainty in selected BI insurance policies. Acting in the public interest, the FCA will put forward policyholders’ arguments to their best advantage. We are aiming to obtain legal guidance in this way more quickly and at a lower cost to policyholders than would be the case if they took their own court actions.
The FCA recognises that many claims will already be the subject of negotiation or other dispute resolution processes. This proposed action is not intended to impact this normal claims process. It is designed to assist policyholders, and particularly SMEs, whose claims are being refused when they think the firm should respond.
The intended action will not prevent individuals from pursuing issues through negotiated settlement, arbitration, court proceedings as a private party, or taking eligible complaints to the Financial Ombudsman Service.
The result of the test case will be legally binding on the insurers that are parties to the test case in respect of the representative sample considered. It will also provide persuasive guidance for the interpretation of similar policy wordings and claims, that can be taken into account in other court cases, by the Financial Ombudsman Service and by the FCA in looking at whether insurers are handling claims fairly.
We wish to ensure that policyholders and insurance intermediaries are properly engaged throughout this process.
Invitation to policyholders and insurance intermediaries to provide information
The coronavirus pandemic will have affected policyholders in different ways. The issues relevant to the intended proceedings will therefore be wide-ranging and complex. We recognise that the intended proceedings will better achieve our consumer protection and market integrity objectives if they cover as broad a cross section of policies and issues as is compatible with an expedited court process. We are reviewing extensive material provided by insurers to do this.
At this stage, we are inviting policyholders and insurance intermediaries who are aware of unresolved disputes with insurers over the terms of BI policies to engage with us, if they want us to take their concerns into account as part of the test case. In particular, we invite you to put forward:
- your arguments why you consider cover should be available, together with details of policies that you consider have not responded appropriately to a claim and
- brief relevant facts of the case
We will consider all arguments raised.
We will treat information we receive as confidential and covered by the FCA’s litigation privilege (meaning we would be entitled not to produce it to a third party or the court).
Please email any material you want us to consider by Wednesday 20 May 2020 to: [email protected]
It is important that we receive and evaluate policyholders’ arguments now, given that we intend to seek the court’s view on relevant policies as soon as possible.
Given the volume of information we expect to receive, we cannot commit to replying to individual communications.
The FCA’s legal team
We have instructed Herbert Smith Freehills, a leading law firm with a highly regarded practice representing policyholders. The team at Herbert Smith Freehills is led by Paul Lewis.
We have also instructed an external team of leading counsel highly experienced in insurance issues.
How the FCA will be available to policyholders
The FCA will be available to policyholders throughout the court process:
- we have created a dedicated webpage where we will provide information, updates and access to documents including court ‘pleadings’ and a form to sign up for updates
- the FCA and our solicitors, Herbert Smith Freehills, will be available for discussion with action groups and policyholders and their legal representatives, for example at workshop style meetings
How the FCA intends to engage with policyholders
We intend to engage with policyholders at key stages of the court action, including:
- considering those arguments and factual circumstances communicated by policyholders and insurance intermediaries to us now
- using the arguments, policies and fact patterns put forward by policyholders to inform the sample of policy wordings and fact patterns (a summary of the key facts of a case) to be used in the court proceedings
- making public all the ‘pleadings’ in the test case
- where policyholders and action groups have appointed legal representatives to represent them, having discussions during the preparation of the FCA’s pleadings and submissions
- publishing other material relevant to the test case – subject to certain statutory limitations discussed below
Limitations on the FCA sharing information
There are statutory limitations on the information about firms, people and markets that we can release to the public.
- Those explained in our guide to information we can and can’t share, which derive from s.348 of the Financial Services and Markets Act 2000. We are unable to disclose confidential information without consent unless a specific statutory ‘gateway’ to disclosure applies.
- Limitations on our ability to disclose ‘inside information’, which is information that could have a significant effect on the price of securities issued by insurers which are admitted to trading in a UK or EU trading venue. We may only disclose inside information where it is necessary to perform our functions properly.
- Limitations on the disclosure of personal data in the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
We will also need to maintain legal privilege in communications we receive from third parties to which privilege attaches. We may also need to keep confidential certain legal documents we or our advisers generate to avoid undermining our position in the test case.
However, we can release documents which have been made available to the public or are not subject to these limitations. So we will publish such information and documents on our webpage and in email updates. We intend to engage with policyholders as far as possible while upholding our statutory and common law duties.
