Update on FCA’s COVID-19 business interruption insurance test case

A “consequentials hearing” in the FCA’s COVID-19 test case (The Financial Conduct Authority v Arch and others [2020] EWHC 2448 (Comm)) took place on Friday 2 October 2020. The purpose of the hearing was to:

• determine the declarations to give effect to the findings of the Court as set out in its judgment dated 15 September;
• determine the applications made by certain parties (and the Hiscox Action Group as intervener) for certificates under section 12(1) of the Administration of Justice Act 1969 for permission to make “leapfrog” appeals to the Supreme Court;
• determine the applications made by certain parties for permission to appeal to the Court of Appeal; and
• to deal with a request to intervene from a non-party insurer – QIC Europe Limited - seeking to be joined to the Test Case.

The majority of the declarations (which are intended to give effect to the judgment) had been agreed between the parties prior to the hearing. The parties had not managed to agree the wording of a small number of declarations, and there was legal argument on these at the hearing.

In terms of the appeal applications, the Court granted “leapfrog” certificates to all parties that sought one, namely the FCA, Arch, Argenta, MS Amlin, Hiscox, QBE, RSA and the Hiscox Action Group.

The Court also granted permission to the same parties to appeal to the Court of Appeal. Such permission was given in the event that permission to appeal is not granted by the Supreme Court.

The Court rejected the application by QIC Europe Limited to be joined to the Test Case.

For more information, please see this post on our Insurance Notes blog.