2021 saw the UK courts grapple with pandemic related issues – not least the FCA test case – as well as a shift in type and substance of disputes presented, and these trends look set to continue.
Group actions made headline news in 2021, and many cases remain unresolved, meaning they will continue to shape the legal landscape. The move towards US-style opt-out group claims becoming the norm in the UK took a huge step forward when the Competition Appeal Tribunal (CAT) certified the first application for a collective proceedings order (CPO) on an opt-out basis in Merricks v Mastercard .
The UK Supreme Court also handed down its long-awaited decision in the data privacy case of Lloyd v Google . While the judgment suggests that representative claims for damages, rather than just for findings of liability, may be difficult for data breaches, the door has been left ajar for other types of representative claims.
In Okpabi v Shell , the UK Supreme Court ruled that a company can be held liable in the English courts for oil pollution allegedly caused by its subsidiary in Nigeria. This ruling means that parent companies in Britain could face UK liability for their operations overseas.
In December 2021, the Court of Justice of the European Union (CJEU) handed down judgment in Tattersall v Seguros Catalana Occidente S.A, ultimately coming to the opposite conclusion to the UK’s Court of Appeal. This decision highlights how Brexit will shape the future legal system in England & Wales as, following the end of the Brexit transition period, this may well be the last matter that the courts of England & Wales refer to the CJEU.
The FCA test case is widely regarded as having addressed many of the issues arising from COVID-19 business interruption claims. However, some matters remain unresolved, such as coverage questions around specified diseases, damage to property, denial of access, cancellation and disease at the premises, as well as quantum disputes around aggregation, direct losses and government support. These issues are already starting to emerge, which means that insurers are operating in a still uncertain landscape.