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Prediction: Will the Supreme Court erode the principles upon which insurers can offset gratuitous third party benefits against insurance claims?

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Prediction

February 2026 will see the Supreme Court hear argument over whether insurers should be entitled to offset furlough payments against COVID-19 business interruption claims. March 2026 will also likely see an unhappy, but unavoidable, confluence between the Supreme Court's judgment landing and the sixth anniversary of the first national lockdown. As such, insurers may be faced with a surge in policyholders issuing legal proceedings in anticipation that there might still be something left in the pandemic for them to fight over. Aside from the need to put in place contingency plans to deal with the volume of claims which might be resurrected, the furlough judgment is likely to have wider ramifications beyond COVID-19 related claims. An adverse finding could see the erosion of the indemnity principle. Expect the Supreme Court to lay down authoritative principles, both as to the circumstances in which gratuitous payments received by policyholders from third parties should go to reduce the indemnity available under insurance policies and also on the scope of insurers' rights to subrogate against such third parties.

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