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Coronavirus (COVID-19)-business interruption insurance

Posted on 4th December, 2020

The Coronavirus pandemic lockdown measures have resulted in significant numbers of UK business having to temporarily close down or drastically reduce their operation.  This has caused considerable loss of income and other damage – and will continue to do so as long as the virus persists, and new and varied restrictions are introduced in response.

Jacksons has a dedicated team of experienced lawyers who can represent businesses that are claiming under their business interruption (BI) insurance policies for losses arising from the Coronavirus pandemic.  Many businesses across the country are finding that their insurers are either failing to confirm that losses are covered under their BI policy or have declined cover completely.

The Supreme Court judgment in FCA v ARCH INSRUANCE & ORS [2020] is now expected imminently.

ARCH is a test case brought by the FCA designed to determine the construction of certain provisions in insurance policies written by the Arch Insurance and obtained by a range of businesses and others which purport to provide coverage in the event of business interruption.  The Supreme Court is being asked to determine matters of construction relating to :

  • “Disease Clauses” i.e. those which can be triggered by the occurrence of severe acute respiratory syndrome Coronavirus – “Covid-19” typically within a specified distance of the insured’s premises;
  • “Prevention of Access Clauses” i.e. those triggered by public authority intervention preventing access to, or use of, premises as a result of Covid-19; and
  • “Hybrid Clauses” i.e. those clauses which contain wording from both Disease and Prevention of Access Clauses.

In addition, the appeal raises questions as to whether the Divisional Court was correct:

  • To apply certain counter-factual scenarios in relation to the operation of the Clauses in relevant policies which provided for loss adjustments (the “Trends Clauses”);
  • In its analysis of Orient-Express Hotels Limited v Assicurazioni Generali S.p.A

We are anticipating a substantial number of insurance claims of this sort arising from the pandemic.   The courts are already bracing themselves, and, it is fair to say, are genuinely concerned to ensure that the claims are efficiently managed and heard.  The courts have already nominated a leading High Court Judge in the Commercial Court who will oversee this litigation.

The Court has already given directions to the lawyers in terms of issuing claims in the relevant local business and property courts in accordance with standard practice.

Jacksons’ team of lawyers have welcomed the Courts’ guidance ahead of the much-anticipated ARCH judgment.   We are committed to providing as much assistance as possible, including urgent advice, resources and support in dealing with remote or in person and meetings.  Our lawyers can assist in commercial disputes arising from the pandemic and its impact on businesses, organisations, public bodies and individuals.

For further details, please contact the Dispute Resolution and Debt Recovery Team at Jacksons on 01642 356500 or by email Litigationteam@jacksons-law.com 

Toby Joel, Partner and Head of Dispute Resolution and Debt Recovery

 

 

 

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