High Court finds in favour of Cricket Club Policyholders for Business Interruption losses

Great news for some cricket clubs, sports clubs and businesses, throughout the UK, as the High Court finds in favour of policyholders for Covid-19 pandemic Business Interruption.

This news coincided today with the CEO at the ECB, Tom Harrison, announcing record losses of between £100-£200 million, for the England and Wales Cricket Board this year.

Many cricket clubs and businesses, around the UK, will  be celebrating in the knowledge that the High Court has today handed down its judgment in the Financial Conduct Authority’s (FCA)’s business interruption insurance test case, finding in favour of the arguments advanced for policyholders by the FCA on the majority of the key issues.

With this judgement in favour of policyholders being handed down, it now makes uncomfortable reading for those administrators responsible for ensuring that the appropriate risk assessments and insurance cover for those organisations, businesses and clubs, were in place - as they themselves could now find themselves to be personally liable for not having the appropriate cover relating to their organization, business or club.

Cricket World asked earlier in the year – Was Cricket properly insured? 

In this earlier article, we showed that the MCC was facing a similar financial crisis, with loss of revenues (circa £20 million) and it appeared that the ECB, the 18 First Class Counties, the MCC and recreational cricket clubs ( through preferred ECB broker insurance cover) had not been properly Insured for business interruption and, in the case of recreational cricket, there were only 350 clubs, throughout the UK, (around 5%) that had the chance of recovery of their business interruption claims via their Hiscox policies (through Aston Lark), where all others (including Allianz via MW, Aviva, Zurich, NIG, RSA) have said “No cover” from the start.

It now appears that the ECB, the MCC and all of the 18 First Class Counties were not adequately insured, with the appropriate cover required for hosting International and Domestic sporting events such as Test match series, ODIs, T20Is and the Vitality Blast and off - field events such as conferences/celebrity dinners etc - resulting in enormous financial losses to those organisations and clubs - who is responsible and what action can be taken to ensure that this does not happen again?

Clearly there is a need for complete transparancy in organisations such as the ECB and MCC and they need to be held to account and although both organisations have appeared to move towards compliant governance, there are clearly still conflicts of interest and the adequate compliance required of a World Class sporting venue and the National Governing Body of the sport.

More on today's judgement:

Christopher Woolard, Interim Chief Executive of the FCA, commented -

‘We brought the test case in order to resolve the lack of clarity and certainty that existed for many policyholders making business interruption claims and the wider market.  We are pleased that the Court has substantially found in favour of the arguments we presented on the majority of the key issues. Today’s judgment is a significant step in resolving the uncertainty being faced by policyholders. We are grateful to the court for delivering the judgment quickly and the speed with which it was reached reflects well on all parties.

‘Coronavirus is causing substantial loss and distress to businesses and many are under immense financial strain to stay afloat. Our aim throughout this court action has been to get clarity for as wide a range of parties as possible, as quickly as possible and today’s judgment removes a large number of those roadblocks to successful claims, as well as clarifying those that may not be successful.

‘Insurers should reflect on the clarity provided here and, irrespective of any possible appeals, consider the steps they can take now to progress claims of the type that the judgment says should be paid.  They should also communicate directly and quickly with policyholders who have made claims affected by the judgment to explain next steps.

‘If any parties do appeal the judgment, we would expect that to be done in as rapid a manner as possible in line with the agreement that we made with insurers at the start of this process. As we have recognised from the start of this case, thousands of small firms and potentially hundreds of thousands of jobs are relying on this.’

Background

Many policyholders whose businesses were affected by the Covid-19 pandemic suffered significant losses, resulting in large numbers of claims under business interruption (BI) policies.

Most SME policies are focused on property damage and only have basic cover for BI as a consequence of property damage.   But some policies also cover for BI from other causes, in particular infectious or notifiable diseases (‘disease clauses’) and non-damage denial of access and public authority closures or restrictions (‘denial of access clauses’). In some cases, insurers have accepted liability under these policies.  In other cases, insurers have disputed liability while policyholders considered that it existed, leading to widespread concern about the lack of clarity and certainty.

The FCA’s aim in bringing the test case was to urgently clarify key issues of contractual uncertainty for as many policyholders and insurers as possible. The FCA did this by selecting a representative sample of policy wordings issued by eight insurers. 

©Cricket World 2020