The COVID-19 Inquiries – Insurers and their customers

The UK Government and the Scottish Government have set up public inquiries to investigate the handling of the COVID-19 pandemic and to learn lessons for the future.

The Inquiries

The UK Inquiry will investigate the preparedness of the UK for the pandemic and the response in all four UK nations. Its remit includes UK issues and issues that are devolved to Scotland, Wales and Northern Ireland. The Scottish Inquiry is only to investigate "Scottish matters" – so matters falling within the powers of the Scottish Parliament and Government.

Both inquiries say they want to avoid duplication of work with each other and with any other inquiry into the pandemic that may be set up by the Welsh or Northern Ireland administrations.

The UK Inquiry's draft terms of reference have been out for public consultation and the Chair of the UK Inquiry, Baroness Hallett, has written to the Prime Minister recommending that the terms be extended to specifically include the impact on children and young people, impacts on mental health and wellbeing of the UK population and collaboration between central government, devolved administrations, local authorities and the voluntary and community sector. Once the terms of reference are finalised the UK Inquiry can begin gathering evidence. Public hearings are expected to begin in 2023.

The terms of reference for the Scottish Inquiry were finalised in December 2021 and it was formally established in March of this year. The Scottish Inquiry remains in its "establishment stage" during which its Chair, Lady Poole, will appoint the Scottish Inquiry's team and put in place systems to support its work. It is aiming to launch publicly in early summer 2022.

A key difference between the inquiries is that the UK Inquiry will investigate events which happen up until the date on which it is formally set up, whereas the Scottish Inquiry's remit includes events until the end of 2022.

Relevance for the insurance industry

Both inquiries will investigate the economic impacts of the pandemic, including the adequacy of financial support provided to businesses. We expect the insurance industry to have a significant interest in this aspect given the volume and value of claims made on business continuity and other policies. Insurers may wish to have their views represented in the inquiries to ensure that the impact on the industry is considered and so that lessons can be learned as to the role of insurance in relation to future disease outbreaks.

Furthermore, insurers may be called upon to fund the involvement of policyholders in these inquiries, depending on the terms of their coverage. While a public inquiry cannot determine civil or criminal liability, evidence obtained during an inquiry can be used in litigation later. In recent years we have seen both civil cases and criminal investigations running concurrently with public inquiries, such as the police investigation into the fire at Grenfell Tower occurring alongside the public inquiry into the disaster; and personal injury claims being paused pending the outcome of the Infected Blood Inquiry.

Therefore, organisations who expect to be subject to criticism by the UK and/or Scottish Covid-19 Inquiries may seek to rely on their policies to fund legal representation where information discussed in the inquiries could be relevant to insured losses that could arise in future civil proceedings.

Brodies has significant experience in representing core participants in both UK-wide and Scottish public inquiries and for the insurance industry. If you would like to discuss your potential involvement in the inquiries either as a core participant or on behalf of an insured, please contact Christine O'Neill KC, Kirstyn Burke or your usual Brodies contact.