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On 15 January 2021, the Supreme Court handed down its judgment in the FCA COVID-19 test case, heard on a “leapfrog” appeal (bypassing the Court of Appeal) from the first instance decision of Lord Justice Flaux and Mr Justice Butcher (see our previous blogs here and here ). The Supreme Court judgment can be accessed here.
The Supreme Court substantially allowed the appeals of the Financial Conduct Authority (“
FCA”) on behalf of the policyholders and dismissed the appeals of the insurers, and in doing so, has broadly endorsed (and in some cases extended) the finding at first instance that many of the policies in question provide cover, albeit for slightly different reasons. As part of its reasoning, the Supreme Court concluded that the
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The court also concluded that the Orient Express case, which insurers relied on during the hearing, was wrongly decided and should be overruled.
The Supreme Court has ruled largely on the side of the Financial Conduct Authority (FCA) and policyholders, according to the judgment in the business interruption test case appeal published today (15 January).
Both policyholders and insurers lodged appeals on certain aspects of the original judgment.
The Supreme Court said in the judgment: “Although we have accepted some of the insurers’ arguments on their appeals, in no case has that affected the outcome of the appeal. It follows that the insurers’ appeals are dismissed.”