We, Aspen Insurance UK Limited (“AIUK”) and Aspen Managing Agency Limited (“AMAL”) understand that coronavirus (Covid-19) pandemic and the Government controls imposed as a result are causing a substantial level of loss and distress for businesses, in particular for SMEs. We are aware that a large number of claims are being made to insurers under the terms of business interruption (BI) insurance policies and we recognise that there is continuing and widespread concern about the lack of a positive response of some of those BI insurance policies, and the basis on which some insurers are making decisions in relation to claims.
On 1 May 2020, the Financial Conduct Authority (FCA) released a statement that they intend to obtain court declarations aimed at resolving contractual uncertainty in selected BI insurance policies. Acting in the public interest, the FCA will put forward policyholders’ arguments to their best advantage. The FCA are aiming to obtain legal guidance in this way more quickly and at a lower cost to policyholders than would be the case if policyholders were to take their own court actions.
The FCA recognises that many claims will already be the subject of negotiation or other dispute resolution processes. This proposed action is not intended to impact this normal claims process, and instead it is designed to assist policyholders, and particularly SMEs, whose claims are being refused when they think the firm should respond. The intended action will not prevent individuals from pursuing issues through negotiated settlement, arbitration, court proceedings as a private party, or taking eligible complaints to the Financial Ombudsman Service.
The result of the test case will be legally binding on the insurers that are parties to the test case in respect of the representative sample considered. It will also provide persuasive guidance for the interpretation of similar policy wordings and claims, that can be taken into account in other court cases including in Scotland and Northern Ireland, by the Financial Ombudsman Service and by the FCA in looking at whether insurers are handling claims fairly.
For more information, please visit the FCA website.
Aspen’s approach to existing or potential claims pre-final determination of the FCA BI test case
AIUK and AMAL underwrite BI policies on a Lead and Follow basis. The FCA requirements under the test case apply where insurers are in a Lead capacity. Therefore, we have assessed all BI policy wordings to identify the relevant coverage clauses, which will determine if claims will or will not be affected by the outcome of the test case once it reaches its final resolution. Therefore, if policyholders have relevant non-damage business BI policies impacted by Covid-19, they will be contacted individually to advise that the outcome of the test case, may or may not impact the outcome of the claim.
Supreme Court decision
On 15 January 2021, the Supreme Court delivered its Judgment in the Financial Conduct Authority’s (FCA)’s business interruption insurance test case. The Supreme Court judgment is the ‘final resolution’ of the test case and there is no further recourse through the English courts. The full Judgment is available to view here.
Aspen was not a party to the test case, however in line with the FCA’s Guidance, we are now actively (re)assessing our outstanding and rejected claims and complaints which are impacted by the final decision of the test case. We will contact you or your appointed representatives again once a final decision is reached.
For your information:
On the 14 May 2020 the FCA confirmed its final guidance for customers facing financial difficulties as a result of Covid-19. The final rules were accompanied by a Feedback Statement. The rules came into effect on Monday 18 May and were reviewed and updated in August 2020 and October 2020. As a firm regulated by the FCA, we are required to comply with these requirements and therefore, we ask that if you are a customer who is facing any financial difficulty due to Covid-19, that you please get in touch with us to discuss your circumstances in relation to your insurance policy.
The best way to contact us is as follows:
Phone: 020 7184 8841
Aspen Insurance UK Limited
30 Fenchurch Street