The UK High Court appears to lean in the favour of Claimants in a recent decision of the High Court brought by the Financial Conduct Authority, the regulator of the Insurers, where the Defendants were 8 insurers and two other interested parties. However, the relevance of the judgment to individual companies here in Ireland really depends on the facts of each case and the policy specifics. It will no doubt be a useful focal point for submissions and argument in the forthcoming business interruption case in this country brought for similar reasons by a group of Plaintiffs against FBD Insurance Plc. and will be followed with interest by businesses here, particularly in light of ongoing and tightening restrictions imposed by the State to control the Covid-19 pandemic.
It may be anticipated that the outcome of the Irish case will, more likely than not, be influenced by the reasoning elaborated in the English decision. This will be despite the strong belief that the UK decision will be appealed by the insurers, as any appeal will not have been heard before the Irish case comes before the court for determination. The defendants have been given leave to appeal directly to the English Supreme Court.
The Hearing here – as in the UK – will take place against a background of political clamour for insurers to “do the right thing” which was firmly rejected by the Judges at the outset of their Judgement. However, the Judges in the UK went on to reach conclusions which in the main are favourable and provide hope from the point of view of the Claimants.
The main points of the Judgement are: