COVID-19: FCA files skeleton argument with High Court to clarify aspects of BI insurance test case judgment

On 30 September 2020, the FCA published a press release announcing that it has filed a skeleton argument with the High Court to clarify some of the points in the business interruption (BI) insurance test case judgment at the hearing on 2 October 2020.

The FCA had hoped to reach an agreement with the insurers by 30 September 2020 on the interpretation of some important elements of the judgment affecting which small businesses get paid and how much. However, it recognises that the case involves complex issues, so it has filed its skeleton argument with the High Court in an attempt to clarify some of these.

The FCA will continue discussions with insurers and action groups to find a solution that resolves the outstanding issues as soon as possible to enable pay-outs on eligible claims.

At the 2 October 2020 hearing the FCA will also ask the court to give it a certificate to apply to "leapfrog" the appeal to the Supreme Court. The FCA believes that this is the fastest way to get legal clarity as quickly as possible for all parties if it is not possible to resolve the outstanding issues in the coming weeks.

The FCA previously provided an update on the case on 29 September 2020 (see Legal update, COVID-19: FCA files precautionary application to appeal business interruption insurance test case judgment).

For more information on the test case, see Practice note, COVID-19: FCA business interruption insurance test case. For practitioner opinion on, and analysis of, the judgment, see Articles, Pollyanna Deane's insurance column: September 2020 and COVID-19: implications of judgment in business interruption test case.