This morning 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 judgment can be accessed here.
The Supreme Court has substantially allowed the appeals of the FCA on behalf of the policyholders and dismissed the appeals of the insurers, and in doing so, has broadly endorsed (and in some cases expanded upon) 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 has concluded that the Orient Express case, on which the insurers placed significant reliance, was wrongly decided and should be overruled.
Cooley will produce a more in-depth article, exploring the decision in detail and considering its wider implications in the coming weeks.