Information on business interruption insurance - December 2022

This information you have asked for is publicly available and can be found in our fees policy statement (see paragraph 1.12 at the bottom of page 5 and the business interruption row in the table on page 12).  For this reason, we are exempted from having to disclose it to you under section 21 (information reasonably accessible to the applicant by other means) of FOIA. For more information on why we are applying this exemption please see Annex A below.

We have not carried out any research on this subject matter. Our work focussed on how the policies should respond according to the wording and the circumstances.

Below is an extract from a FCA publication at the time which indicates how the FCA went about determining the questions and terms to be put to the court. See in particular the wording we have highlighted in italics.

Since 1 June 2020 we have received more than 270 submissions from policyholders and other stakeholders on our proposed Questions for Determination and other documents relating to the scope of the test case that we published on 1 June 2020. We and our advisers, Herbert Smith Freehills, have also conducted more than 45 consultations with policyholders and other stakeholders (see representative sample of policy wordings that were selected). We have taken account of the comments we received in formulating our Particulars of Claim, in particular:

• A number of policyholders asked what the judgment in the test case would mean for their claim.  We have set out information about this on our website here and here.
• A number of policyholders asked why certain policy wordings were not being tested. The policy wordings we have selected are those which are representative of the key arguable issues on the basis of securing the maximum relevant coverage for relevant policies while minimising the number of parties engaged before the court. This is in order to make the process as swift as possible while providing as much clarity as possible.
• The comments received from stakeholders have influenced the way the FCA has put its case in the Particulars of Claim, including in relation to certain causation points, what amounts to “prevention” and “interference”, and the correct application of “trends clauses”.
• We have amended where necessary the documents appended to the Particulars of Claim.

The Financial Ombudsman Service (“Ombudsman”) may take into account published FCA material, such as material on our website, or other material that we make available to it for the purpose of enabling or assisting us or the Ombudsman to discharge our respective public functions.  Both during and after the test case, the FCA provided information to the Ombudsman in accordance with our usual practice and the Memorandum of Understanding between the FCA and the Ombudsman and subject to any restrictions on disclosure of information (confidential or otherwise) and legal privilege.  However, the Ombudsman is operationally independent and we do not intervene in its decisions (including by suggesting how it should interpret the law).  The usual practice of the Ombudsman is to take its own advice, as it considers appropriate, on issues and matters of interpretation which are relevant to how it determines cases.

We have produced guidance and the Covid calculator, which are potentially useful to the Ombudsman.  The FAQs contain a question relating to ‘at the premises’, which is also relevant to the Ombudsman.

Please note, the documents are not specifically about ‘at the premises’. We have not produced any other guidance specifically in relation to ‘at the premises’.