How to Claim Your COVID BI Insurance Payout Before 2026: Part Two
The FCA test case and its impact
In 2020, the Financial Conduct Authority (FCA) took unprecedented action by bringing a test case against eight major insurers to resolve uncertainty around business interruption policies. This case represented approximately 370,000 policyholders with 700 types of policies issued by 60 different insurers.
The Supreme Court’s judgment in January 2021 was groundbreaking. It substantially allowed the FCA’s appeal on behalf of policyholders, decisively removing many roadblocks to claims. The Court ruled that:
- Most disease clauses in the sample provided cover for COVID-19 losses
- Certain denial of access clauses also provided cover, depending on specific wording
- The pandemic and government response constituted a single cause of covered loss
Importantly, the Supreme Court rejected the “but for” causation test that insurers had relied upon to deny claims. This meant that businesses no longer needed to prove their losses wouldn’t have occurred “but for” the specific local occurrence of COVID-19—a virtually impossible task given the nationwide pandemic.
Corbin & King vs AXA: what changed
Whilst the FCA test case established broad principles, many Non-Damage Denial of Access (NDDOA) clauses remained in dispute. The February 2022 Corbin & King vs AXA case changed this situation fundamentally.
Mrs Justice Cockerill ruled that AXA’s NDDOA clause—covering losses where access was restricted due to “danger or disturbance” within one mile of premises—did provide cover for COVID-19 losses. This directly contradicted earlier interpretations from the Divisional Court that weren’t appealed to the Supreme Court.
The judgment clarified that:
- COVID-19 could constitute a “danger” within policy terms.
- The Supreme Court’s approach to causation applied equally to NDDOA clauses.
- Multiple premises owned by the same business could each claim under the policy limit rather than sharing a single limit.
This ruling opened pathways for claims previously rejected by insurers based on narrower interpretations of policy wording.
How insurers are responding post-judgment
Following these landmark judgments, insurers have taken varied approaches:
- Policy reassessment: Many insurers have reviewed previously rejected claims, particularly those involving NDDOA clauses similar to those in Corbin & King.
- New claim parameters: Insurers now acknowledge that claims may be valid under more policy types than initially accepted, including those with disease clauses and denial of access provisions.
- Continued resistance: As recently as April 2025, some insurers have won cases involving “closed-list” disease policies that explicitly named covered diseases (excluding COVID-19). This demonstrates insurers are still contesting claims where possible.
- Appeals strategy: Many insurers have exhausted appeal options through to the Supreme Court, suggesting they’ve largely accepted the new legal framework.
The FCA maintains an updated list of non-damage BI policies capable of responding to the pandemic. This resource helps businesses identify whether their policy might be affected by these judgments.
Consequently, businesses should review rejection letters received prior to these judgments, as the legal basis for those decisions may no longer be valid. Claims dismissed before February 2022 may be particularly worth revisiting in light of the Corbin & King decision.
Gather the Right Evidence
Successful BI insurance claims hinge on presenting compelling evidence to your insurer. Once you’ve confirmed your policy coverage, gathering proper documentation becomes critical for maximising your payout.
Prove COVID-19 was present near your premises
Many BI policies require proof that COVID-19 was present within a specific radius of your business premises. According to FCA guidance, you can establish this using several types of evidence:
- Personal knowledge of someone near your premises who tested positive (with supporting evidence).
- Media reports of COVID-19 cases at nearby care homes, hospitals, schools, or businesses.
- NHS England data recording deaths after positive tests at hospital trusts within your policy area.
- Office of National Statistics (ONS) weekly data recording COVID-19 deaths by local authority.
The High Court clarified that policyholders can use these evidence types to satisfy the burden of proof. For policies requiring the disease to “manifest,” remember this means a person showing symptoms or being diagnosed with COVID-19.
Use the FCA COVID calculator
The FCA developed a dedicated calculator specifically to help businesses prove COVID-19 presence in their policy area. This online tool:
- Identifies how many cases likely occurred within your policy area on specific dates.
- Produces a map showing your business premises at the centre with a circle indicating the relevant policy area.
- Performs “weighted averaging” calculations to estimate case numbers across local authorities.
- Generates downloadable reports and underlying data files to support your claim.
This calculator is especially valuable for policies covering “disease within a particular distance from the premises” such as 1-mile or 25-mile radius clauses.
To be continued.
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Our role in business interruption insurance claims is focused on the financial analysis and quantification of loss, rather than overall claims handling or policy coverage advice. We assist by reviewing accounting records and management information, analysing turnover and gross profit trends, considering trading patterns and pre-loss performance, quantifying loss arising from the interruption, assessing relevant savings and additional expenditure from a financial perspective, and preparing clear schedules and supporting analysis for insurers, loss adjusters, solicitors, or insured parties. Our work is informed by recognised market guidance and practice reflected in resources from the Financial Conduct Authority, the Chartered Institute of Loss Adjusters, and the Association of British Insurers. We do not act as loss adjusters, determine policy indemnity, or provide legal advice on coverage.
