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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Bellhouse & Anor v Zurich Insurance Plc [2025] EWHC 1551 (Comm) (24 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/1551.html
Cite as: [2025] EWHC 1551 (Comm)

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Neutral Citation Number: [2025] EWHC 1551 (Comm)
Case No: LM-2024-000066

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
CIRCUIT COMMERCIAL COURT (KBD)

Royal Courts of Justice,
Rolls Building
Fetter Lane,
London, EC4A 1NL
24 June 2025

B e f o r e :

HIS HONOUR JUDGE HODGE KC
Sitting as a Judge of the High Court

____________________

Between:
(1) CHARLES BELLHOUSE
(2) BIBORKA BELLHOUSE

Claimants

- and –


ZURICH INSURANCE PLC
Defendant

____________________

Mr Mek Mesfin (instructed by Devonshires Solicitors LLP, London) for the Claimants
Mr Daniel Crowley (instructed by Clyde & Co LLP, Salford) for the Defendant

Written representations received: 18 June 2025
Date judgment handed down: Tuesday 24 June 2025

____________________

DATE HTML VERSION OF JUDGMENT HANDED DOWN: TUESDAY 24 JUNE 2025
HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.00 am on Tuesday, 24 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    CONTRACT – Home insurance – Claim for indemnity under policy –Defence of avoidance for qualifying fraudulent misrepresentation – Defence of reliance on contract works exclusion – Claimants' application to strike out defences and for partial summary judgment against defendant – Reserved judgment [2025] EWHC 1416 (Comm) handed down on 18 June dismissing application (save for one limb of the contract works exclusion defence) but only on condition that the defendant provides further particulars – Further judgment on terms of court's order and incidence and quantum of costs

    The following cases are referred to in the judgment:

    Burnden Holdings (UK) Ltd v Fielding [2017] EWHC 2118 (Ch)

    Three Rivers DC v Bank of England [2006] EWHC 816 (Comm), [2006] 5 Costs LR 714

    His Honour Judge Hodge KC:

  1. On Wednesday 18 June 2025, I handed down my substantive judgment on the claimants' application to strike out, and for summary judgment on, substantial parts of Zurich's defence to this claim on their household insurance policy. That judgment bears the neutral citation number [2025] EWHC 1416 (Comm). I now have to determine the form of the court's order, and, in particular, issues of costs.
  2. I have received written submissions from Mr Mesfin, for the claimants, and Mr Crowley, for Zurich, on all outstanding matters consequential upon the court's judgment.
  3. Having considered the alternative versions of the draft order proposed by counsel for the parties, and their supporting submissions, I will make an order in the terms of the accompanying draft. I consider that an order in these terms accurately, and clearly, gives effect to my substantive judgment. In specifying the nature of the further particulars to be provided by Zurich, I have gone slightly further than I indicated in paragraph 112 of my substantive judgment by including an additional paragraph 2 (b) (re-numbering the following two sub-paragraphs accordingly). In doing so, I have sought to give effect to paragraph 102 of my substantive judgment so as to enable Zurich, if so advised, to plead a defence founded upon s. 2 (3) of CIDRA.
  4. I turn then to issues of costs. Perhaps surprisingly, the parties disagree about who has succeeded on this application.
  5. For Zurich, Mr Crowley takes the preliminary point that it would not be appropriate to make any costs order now, in advance of any application by the claimants in response to Zurich's further particulars. In any event, Mr Crowley submits that it would be unusual for costs to be ordered against a party that provides further particulars of its statements of case.
  6. I do not accept these preliminary submissions. The court has spent a full day hearing the claimants' application for strike out and summary judgment. Save for one limb of the contract works exclusion defence, it has refused to strike out the other challenged parts of Zurich's pleadings, or to enter summary judgment for the claimants on those parts of Zurich's defence. But it has only done so because it has given Zurich the opportunity of addressing, and correcting, what the court has found to be serious deficiencies in the way that, up to now, Zurich has pleaded its case. Before the hearing of this application, Zurich had refused, not only to correct, but even to acknowledge, these deficiencies. Whatever the precise form that these further particulars may take, it is appropriate for the court now to grasp the nettle of determining the incidence, and the quantum, of the costs the parties have incurred in arriving at the present position. This is that Zurich has been required to supply further particulars of its defence, as the price of avoiding the striking out of, and the entry of summary judgment against it on, the challenged elements of its pleaded defence.
  7. Mr Crowley relies upon CPR 44.2. He is mindful of paragraph 115 of my substantive judgment, where I said:
  8. Entirely subject to submissions, my present, and provisional, view is that these should be borne, at least in large part, by Zurich. Although the claimants have only partly succeeded on their application, and then only to the extent of securing the striking out of a minor limb of the contract works exclusion defence, Zurich's ability to maintain its other challenged defences is conditional upon the provision of particulars that it has never previously offered up to the claimants, but has maintained it was under no obligation to provide. When I look to identify the unsuccessful party on this application, I consider this to be Zurich.
  9. Despite these observations, Mr Crowley submits that it is Zurich that is the successful party, and that the claimants should pay a high proportion of Zurich's costs. He says that Zurich successfully defeated the claimants' application for the strike out, and summary dismissal, of parts of Zurich's statement of case, on the basis that Zurich "has no real prospect of succeeding on those parts", and that they disclose "no reasonable grounds" for defending the claim, or for bringing the counterclaim. He points to my judgment in Burnden Holdings (UK) Ltd v Fielding [2017] EWHC 2118 (Ch), at paragraphs 104 to 110, as affording a good example of a claimant being ordered to pay the defendant's costs of a claimant's failed summary judgment application.
  10. Mr Crowley invites the court to re-read Clyde & Co's pre-application letters, dated 20 December 2024 and 29 January 2025. There, Zurich explained in detail why a strike out, or summary dismissal, application was always misconceived. Save for the deletion of four words from paragraph 94 of Zurich's defence and counterclaim, the claimants lost their application. Those four words formed only a minor limb of the contract works exclusion defence. To put it another way, stepping back and comparing (1) what the claimants argued, and asked the court to order, with (2) the end result, Mr Crowley says that it is the claimants who were the unsuccessful party. Their application was contrary to the overriding objective, was disproportionate, put both parties to very considerable cost, and impinged upon the courts' limited resources. Whilst Zurich was given permission to file further particulars, this application was never about Zurich providing further particulars; it was an attempt by the claimants, wrongly and unreasonably, to seek the strike out and summary dismissal of parts of Zurich's statements of case. A strike out and summary dismissal application is the wrong procedure to use in order to obtain further particulars. Had the claimants really wanted further particulars, then they should have served a (further) CPR Part 18 request for further information. They had previously served such a request, to which they had received a full and proper response. But instead of applying for an order on that request, the claimants had chosen to make this strike out/dismissal application. In the teeth of the evidence before the court, the claimants pursued this application to a hearing and judgment. This is not a case where evidence was served late which put a new complexion on the case. On the contrary, the claimants' contention was that, despite all the evidence before the court, they were still entitled to strike out or summary dismissal. On that, they resoundingly failed.
  11. For these reasons, Mr Crowley contends that Zurich should be awarded a proportion of its costs for essentially defeating the application. The claimants' approach that Zurich should have to pay: (1) the claimants' costs; (2) Zurich's own costs; and (3) potentially the costs of an application by the claimants for further directions in response to the further particulars, is unduly punitive, and is not a fair reflection of the circumstances, whereby the application has largely failed and, as explained in correspondence, was always misconceived.
  12. According to its costs schedule, dated 9 May 2025, Zurich's costs total £118,916.44 (inclusive of VAT). Mr Crowley suggests that the claimants should pay a round figure of £100,000 (representing in the order of 85% of Zurich's costs) as a fair reflection of the relative success of the parties on this application, after taking into account the set-off of the claimants' costs awarded to them by the consent order dated 28 March 2025.
  13. If the court is against Zurich's primary case, then Mr Crowley would submit that neither party was wholly successful. A fair costs order, to reflect the position that Zurich defeated the strike out/summary judgment application, but was ordered to file further particulars, and that the claimants only succeeded on a "minor limb of the contract works exclusion defence", would be an order for 'costs in the case'.
  14. In the further alternative, if the court were minded to make a costs order on the application in the claimants' favour, then Mr Crowley would submit that: (1) this should only be for a small proportion of the claimants' summarily assessed costs, given their overall lack of success (citing CPR 44.2 (6) (a) and (f), CPR 44.2(7), and paragraph 44.2.8 of the White Book); (2) the costs should be heavily reduced on summary assessment; and (3) the costs should be assessed on the standard basis.
  15. For the claimants, Mr Mesfin submits that I correctly identified Zurich as the loser of this application, and the party who should bear the costs of this matter. He contends that the appropriate order is for Zurich to pay the claimants' costs of the application on the indemnity basis, to be summarily assessed, and paid within 14 days. He submits that there should be no reduction from the claimants' revised schedule of costs, which takes account of costs incurred after the original schedule was filed on 9 May, including the actual costs of the hearing, and the actual and estimated costs associated with reviewing the judgment and handing down.
  16. Mr Mesfin refers me to the detailed summary of the factors to be taken into account when deciding whether to order that costs should be paid on the indemnity basis that were identified by Tomlinson J in Three Rivers DC v Bank of England [2006] EWHC 816 (Comm), [2006] 5 Costs LR 714 at paragraph 25. At the outset, the judge identified three factors as relevant to an award of indemnity costs: (1) the court should have regard to all the circumstances of the case, and the discretion to award indemnity costs is extremely wide; (2) the critical requirement before an indemnity costs order can be made in the successful party's favour is that there must be some conduct, or some circumstance, which takes the case out of the norm; and (3) the test is not conduct attracting moral condemnation, which is an a fortiori ground, but rather unreasonableness. Mr Mesfin submits that Zurich's conduct in this litigation has been highly unreasonable, and falls 'out of the norm', such that an order for indemnity costs is appropriate.
  17. Mr Mesfin develops this argument at paragraphs 5 to 15 of his present skeleton argument. I bear the points he makes there fully in mind. In summary, he submits:
  18. (1) Whilst the rejection of a point does not usually, in itself, justify an award of indemnity costs, the quality, or the 'badness', of the point remains relevant. Zurich failed to plead an adequate case on two fundamental ingredients of its cause of action in misrepresentation (representation and reliance); and it has failed entirely to plead any facts which would allow it to rely upon the second limb of the contract works exclusion.

    (2) When considering an application for indemnity costs, the court is concerned principally with the losing party's conduct of the case, rather than the substantive merits of its position. The simple point is that this application should never have been necessary. Not only should Zurich have properly pleaded those basic and essential points, but it has repeatedly ignored the claimants' invitations for it to rectify these basic deficiencies. This was not a sudden, or an opportunistic, application by the claimants, but the culmination of nearly a year of requests, and various procedural steps, attempting to get Zurich to rectify the basic deficiencies in its pleaded case. The court's judgment forcefully affirms what the claimants have now been saying for twelve months. Regrettably, the parties have been forced to have a lengthy, costly and ultimately unnecessary fight over matters which could, and should, have been resolved had Zurich complied with the basic requirements of pleading, or constructively engaged with the claimants' procedural efforts. Put another way, the claim has been stalled for a year due to Zurich's intransigence; and its refusal to adopt a clear, and properly pleaded, position. It has taken a court order to compel Zurich to accept that it must do what the claimants have been urging it to do for eleven months: to clarify its pleaded defences so that they have any chance of remaining viable. It remains to be seen whether Zurich will do so, and if its defences will remain open to it. But, in any event, this course of conduct falls outside the norm of reasonable litigation. It is not reasonable, nor can be it condoned as acceptable, for a party to allow proceedings to be stalled for a year through persistently standing on pleadings from which, despite reading and re-reading them, it is "impossible to distil" the core elements of its case. It cannot be said that Zurich was successful. The pleadings on representation, reliance, and the contract works exclusion all fell to be struck out and the subject of summary judgment. The second limb of the contract works exclusion, as pleaded, is also amenable to summary judgment. What has saved those elements of Zurich's defences from being struck out, and the subject of summary judgment, was the court's decision to give Zurich an opportunity to seek to retrieve the position by filing further particulars: the dismissal of the application is expressly conditional on that basis. If Zurich fails to satisfy this condition for one, or all, of the defences upon which the application was based, they will die. Zurich has lost, and has been granted an indulgence: that can, in no way, be labelled as a victory.

    (3) Zurich's defence alleges fraudulent misrepresentation. The current pleaded case renders it amenable to strike out and summary judgment. Where a party advances allegations of fraud, and those allegations fail, there is a presumption in favour of an award of indemnity costs.

    (4) In respect of the contract works exclusion defence, the first limb was struck out and summarily dismissed. As to the second limb, the court has expressly recognised that, in its present form, it is similarly vulnerable to both strike out and summary judgment. Notwithstanding this, the court has afforded Zurich an indulgence, in the form of the opportunity to remedy deficiencies that ought never to have arisen, and the persistence of which is surprising. It remains to be seen whether or not Zurich will adequately particularise its case such that it can continue to rely on this defence; but the fact that points made in pre-action correspondence, and formally pleaded (a year ago) in the claimants' reply, and persistently requested, are only finally being addressed, in response to a court order, takes this case "out of the norm".

  19. As Zurich has been ordered to amend its case (if it seeks to rely on those defences), the claimants also seek the costs of and occasioned by those amendments, including the costs wasted due to the need for a necessarily extensive reply and defence to counterclaim, and other procedural steps. These are not yet reflected in the claimants' schedule of costs; but that cannot prohibit an order in principle, consequent upon the decision to grant Zurich an indulgence to amend its defence.
  20. In accordance with HHJ Pelling KC's order of 28 March 2025, the claimants are also entitled to the reasonable costs of and occasioned by the extension of time for service of Zurich's evidence. The parties agreed these would be addressed at the conclusion of this hearing. These costs total £2,088.00 (including VAT); and they ought to be summarily assessed (in full) in this sum.
  21. Notwithstanding Mr Crowley's full and able submissions, as recorded above, I adhere to the provisional view I expressed at paragraph 115 of my substantive judgment (which is reproduced at paragraph 7 above): the successful parties to this application are the claimants, and not Zurich. Although I have not struck out the majority of Zurich's challenged pleadings, or entered summary judgment against it, that is only because I have ordered Zurich to remedy the clear deficiencies in its pleaded case. That is not something that Zurich had ever previously recognised was necessary. The claimants had provided Zurich with the opportunity of doing so by their request for further information, served on 3 October 2024. This began by putting the request in context, by identifying Zurich's failure to plead that it had been provided with the statement of insurance (the SOI), and the claimants' several previous written requests for this information; and it made the point that "the nature of the request for information/documentation is such that the basis of any response is within the control of, and easily accessible to, the Defendant …". Against that background, the request asked:
  22. 1. Please state whether the SOI which contained the alleged misrepresentation was provided to the Defendant.
    2. If the answer to the aforementioned request is in the affirmative, please provide full and proper particulars with the particularity to be relied on at trial of (a) the date or dates on which the SOI is said to have been provided to the Defendant; (b) by whom; (c) to whom; (d) by what means it was so provided, in each case providing copies of the documents, if any, upon which the Defendant intends to rely to evidence the said details of whether and how the SOI was in fact provided to the Defendant i.e. covering emails, letters etc. or confirm that no such documents exist/are relied upon.
  23. This simple request was simply never answered. Indeed, the entirely inadequate response that was given was prefaced with the extraordinary assertion:
  24. The Claimants' CPR Part 18 Request served on 3 October 2024 is not concise or strictly confined to matters which are necessary and proportionate to enable the Claimants to prepare its own case or to understand the case it has to meet. Further, the Request requests evidence in advance of disclosure and exchange of evidence.
  25. In my judgment, Mr Crowley is simply wrong to submit "that there was a full and proper Response" to this request. For the reasons I have sought to explain in my substantive judgment, there was not. Mr Crowley complains that the claimants "did not make an application for an order on its Request and instead chose to make this strike out/dismissal application". In my judgment, that was an appropriate, and proportionate, response to Zurich's failure to engage with an entirely proper request for it to remedy a crucial omission at the heart of its pleaded case. Having received the answer, 'There is no-one at home', I do not consider that a litigant is obliged to knock on the same door again. The claimants' application succeeded, not in securing an order for the immediate strike-out of, and summary judgment on, the relevant part of Zurich's defence. But that is only because the court has given Zurich one final chance to cure that which it had previously, and steadfastly, refused to remedy. The present case is in no way comparable with the case of Burnden Holdings (UK) Ltd v Fielding, which is prayed in aid by Mr Crowley. There the defendants succeeded both in resisting an opportunistic application for summary judgment, and also in securing an order for security for costs which the claimant had resisted to the bitter end. Here, Zurich is being compelled to provide further particulars of essential elements of its defence, which it has previously refused to provide to the claimants. The fact that it may, ultimately, have proved possible to identify those elements of its case from the witness evidence filed in response to the claimants' application is no substitute for a proper pleading in the first instance.
  26. In agreement with the submissions of Mr Mesfin, I find that the claimants are the successful party.
  27. My initial reaction to Mr Mesfin's further submission that this was an appropriate case for a summary assessment of the claimants' costs on the indemnity basis was that that was an over-optimistic submission. But having reflected further on his submissions, I am persuaded that Mr Mesfin is right. I do not consider that the allegation of a fraudulent misrepresentation justifies an assessment of costs on the indemnity basis. That is because the omissions in Zurich's pleaded case are equally applicable to a non-fraudulent qualifying misrepresentation: these are the inadequate particularisation of how the misrepresentation was communicated to Zurich; and of how Zurich placed any reliance upon it. But I entirely agree with Mr Mesfin's first, second, and third points (as summarised above).
  28. Mr Crowley submits that the claimants' costs should be assessed on the standard basis as there is nothing which takes the case 'out of the norm' in any way which would justify an award of indemnity costs. He says that there was a reasonable disagreement as to what needed to be pleaded, and what were matters of evidence. He refers me to paragraphs 44.3.8 – 44.3.9 of the current edition of Civil Procedure. I reject this submission.
  29. I am satisfied that Zurich's extraordinary behaviour, which has necessitated this application by the claimants, takes this case outside the 'norm' for consumer insurance disputes of the present kind. It has necessitated a vast, and wholly unnecessary, expenditure of costs by private individuals, who have suffered substantial damage to their home, and are claiming for this on their insurance. It has put the timetable for this case back by almost a full year. It has diverted the parties' focus away from the true issues in the case. And it has involved an unnecessary drain upon the court's scarce resources as a result of conduct by a well-represented insurer which should have known, and acted, better. For these reasons, I will conduct the summary assessment on the indemnity basis. However, I make it clear that this has almost certainly had no effect upon my assessment of the claimants' costs.
  30. I now turn to the summary assessment of the claimants' costs.
  31. Mr Crowley notes that the claimants' solicitors originally served a costs schedule for the hearing on 13 May 2025 in the total sum of £75,451.20. They also served a costs schedule for the order for an extension of time in the total sum of £2,088. I note that these schedules include VAT of £12,575.20 and £348.00 respectively. Mr Crowley points out that on 11 June 2025, the claimants served a further, revised costs schedule for the hearing. This had increased by £13,939.20 to £89,390.40. I note that of this latter sum, £14,898.40 represents VAT. Mr Crowley invites the court to ignore this second schedule as (self-evidently) it was not served 24 hours before the hearing on 13 May (as required by CPR PD 44 9.5(4)(b)). Mr Crowley submits that it is contrary to the principles of summary assessment to load up the costs on the served costs schedule after receipt of the draft judgment with: (1) costs after the schedule was served, (2) costs, 'and estimated' costs, for dealing with the handing down of judgment; and (3) "re-jigging" counsel's fees. In any event, another £13,939,20 is not reasonable and proportionate for costs from the date of the claimants' original served costs schedule. He says that if the claimants were correct, it would be routine to serve two costs schedules: one 24 hours before the hearing, and a second one after receipt of a draft judgment. It is not. An award of costs on a second costs schedule, served after a draft judgment, would set an unwelcome precedent.
  32. On the claimants' original costs schedule, dated 9 May 2025, and served in advance of the hearing, Mr Crowley submits that there should be the usual/general reductions for solicitor/own client costs of about one-third. As to specific reductions, Mr Crowley makes the following detailed points (with Zurich's suggested figures in brackets):-
  33. (1) Attendance on the claimants at 5.9 hours is excessive (he suggests £983.00).

    (2) Attendance on opponents at 8.1 hrs is excessive when Zurich claim 2.1 hours (he suggests £900).

    (3) Attendance on court/counsel of 14.7 hours is excessive (suggest £2,403);

    (4) The advice from counsel of £21,900 is excessive, in addition to the hearing fee of £11,250 (he suggests £10,000).

    (5) Attendance at hearing. The was no need for two fee earners at the hearing. One Grade B is reasonable and proportionate (he suggests £1,750).

    (6) Work done on documents; the following claimed sums are excessive: (a) Preparing exhibit 8.3 hours - £1,543; (b) Preparing w/s 24.8 hrs - £6,838; (c) Preparing authorities bundle - 9.8 hours - £2,086; (d) Work/considering skeletons 8.6 hours; (e) statement of costs - 4.9 hrs - £385.10 (he suggests £9,000).

  34. Mr Crowley submits that the claimants' costs of £2,088 are excessive for an agreed extension of time for Zurich to file its evidence. He says that there was no need for counsel to advise. He suggests a figure of £500.
  35. For the claimants, Mr Mesfin addresses the issue of the quantum of costs at paragraphs 15 to 25 of his most recent skeleton argument. He invites the court to undertake a summary assessment of the claimants' costs. He also invites the court to allow these costs in full, whether on the standard or the indemnity basis. He submits that these costs have been necessarily and proportionately incurred in pursuing the application; and they are reasonable in amount, and properly documented. The claimants' costs now total £74,492.00 (excluding VAT). These reflect proportionate legal expenditure relative to the complexity and scope of the application, for which the claimants had the full carriage and burden.
  36. Mr Mesfin rightly emphasises that the hourly rates charged by the claimants' solicitors are considerably below the guideline rates for London 2: Grade A (£360, instead of £413), Grade B (£250, as against £319), and Grade D (£110, as opposed to £153). He says that this stands in contrast to Zurich's solicitors' rates which are "bang on" the guideline rates for National 1, applicable to solicitors based in the M3 postal district of Salford, within Manchester Central (of £288 for a Grade A, and £139 for a Grade D, fee-earner). Mr Mesfin submits that the claimants' costs show that this application was approached with efficiency and appropriate allocation, with the vast majority of work being done by junior and mid-level fee earners. Looking at the solicitors' time:
  37. (1) On documents, 107.9 hours were spent: 72.8 hours of grade B time, 18.4 hours of Grade D, and only 16.7 hours of grade A (partner) time; in other words, just 15% partner involvement, with the majority of the work undertaken by a Grade B solicitor.

    (2) As to attendance on the (non-legal) client, counsel and court totalled: 45.3 hours, made up of 34.7 hours of grade B time, 0.5 hours of grade D time, and 10.1 hours of Grade A time. The claimants' solicitors' work included, of course, the preparation of the application, the necessarily lengthy witness statements of Mr Netherway (which had to explain the lengthy factual background to the application, and matters before the court), as well as the claimants having the burden and carriage of the application, and associated procedural work.

    In stark contrast, Zurich spent more time on documents (137 hours). But what is remarkable is that, of that time, only 16.9 hours were spent by a grade D solicitor; the rest – a very high 120.1 hours, totalling 88% - was partner time. It appears that no intermediate level solicitor (i.e. grade B or C) was engaged at all on this claim.

  38. As for counsel, both parties engaged junior counsel. Mr Mesfin points out that the claimants' total of £33,150 (advice at £10,500, and a brief fee of £22,500), plus an estimate of £1,875 for reviewing the judgment and consequential matters, is reasonable and proportionate for what was a heavy, and detailed, one day application. Again, the reasonableness of the claimants' counsel's fees is further supported by the contrast with Zurich, whose junior counsel's fees totalled £55,425 (being £26,925 for advice and £28,500 as a brief fee).
  39. For these reasons, Mr Mesfin submits that Zurich ought to pay the entirety of the claimants' costs (to include VAT). These are both reasonable and proportionate. By contrast, it is inherently unreasonable for Zurich to have allocated nearly all the work to two senior partners, particularly where a senior junior barrister was also instructed. This level of duplication at senior fee-earner level is plainly disproportionate and unjustified.
  40. Since this application was completed (just) within one court day, it is entirely appropriate that I should undertake a summary assessment of the costs. For the reasons I have indicated, I do so on the indemnity basis. That means that, strictly, proportionality does not feature in the assessment process . But I am satisfied that all the costs and fees incurred by the claimants are entirely proportionate to the nature of this application. The indemnity basis of assessment also means that, in case of any doubt, this falls to be resolved in favour of the claimants, as the receiving party, rather than Zurich, as the paying party (as would be the case with a standard basis assessment). The hourly rates charged by the claimants' solicitors are clearly reasonable since they are lower than the applicable guideline hourly rates. I remind myself that this is a summary, and not a detailed, assessment. Nevertheless, I have had regard to all the detailed points raised by both counsel on the amount of costs. I bear in mind that the claimants' costs statements are all vouched by the signature of Mr Netherway, the partner in the claimants' solicitors' practice with the overall conduct of this case. I consider that it is appropriate to have regard to the claimants' revised statement of costs since this encompasses the not inconsiderable amount of work that has been involved in dealing with my handed-down judgment, and addressing consequential matters.
  41. I have no doubt that the fees charged by Mr Mesfin, as counsel for the claimants, are all entirely reasonable and proportionate. Even allowing for their different dates of call, and consequent level of seniority, Mr Mesfin's fees compare most favourably with those charged by Mr Crowley. I consider that it is appropriate to look at the aggregate level of fees, and not how these are apportioned between advice and court representation. I also consider that the £1,875 estimated fee for reviewing the judgment, drafting a court order, and preparing the consequential written submissions (which, probably inevitably, is not mirrored by any corresponding disclosed fee for Mr Crowley) is both reasonable and proportionate. However, I agree with Mr Crowley that there was no need for counsel to be involved in, or to advise upon, the consent order for an extension of time for serving evidence in response to the present application. The fee for that (of £935 plus VAT) will not be allowed.
  42. Subject to one exception, I am satisfied that there is no merit in any of the objections taken by Mr Crowley to the claimants' solicitors' fees. Having regard to the nature and importance of the issues raised by this application, and the extent of the documentation, the number of hours claimed, and the division of work between different grades of fee earner, is reasonable (and, to the extent that this is relevant, proportionate). The fees charged by the claimants' solicitors compare favourably with Zurich's own fees given: (1) the higher (but reasonable and proportionate) charging rates applicable to the location of the claimants' solicitors; and (2) that as the party with the conduct of the application, one would expect a greater burden to fall upon the claimants' solicitors. However, I agree with Mr Crowley that one would not expect two fee-earners to be in attendance at the hearing, particularly given the involvement of counsel. I therefore disallow the £1,500 charged for the attendance of the Grade B fee-earner, and also a further £250 for travelling and waiting time, together with VAT thereon, making a total sum of £2,100.
  43. For these reasons, I summarily assess the total costs of the application (including VAT) at £87,290.40. I assess the total reserved costs of the extension application at £966 (£805 plus VAT of £161). These costs are to be paid within 14 days of the hand down of this consequentials judgment, i.e. by 4.00 pm on Tuesday 8 July 2025. I agree with Mr Mesfin that it is appropriate for the claimants to recover their costs of and occasioned, or thrown away, by the service of the further particulars.
  44. Once again, I conclude by reiterating my thanks to both counsel (and their respective solicitors) for their considerable assistance in facilitating the final disposal of this application.
  45. That concludes this written consequentials judgment.
  46. Draft Order

    UPON the Claimants' application dated 3 February 2025 for strike out and/or summary judgment in relation to the Respondent's Defence and Counterclaim and Reply to Defence to Counterclaim (the 'Application')

    AND UPON reading the second witness statement of Mr Stephen John Netherway dated 3 February 2025 in support of the Application; the third witness statement of Mr Paul Kenneth Annesley, the first witness statement of Mr Jonathan Field, and the first witness statement of Mr Paul Duddle, all dated 28 March 2025; and the third witness statement of Mr Netherway, dated 11 April 2025

    AND UPON reading written submissions on behalf of the Applicants and the Respondent

    AND UPON hearing Counsel for the Applicants (Mr Mek Mesfin) and Counsel for the Respondent (Mr Daniel Crowley) on 13 May 2025

    AND UPON the formal handing down of Judgment upon the Application on 18 June 2025

    AND UPON reading further written submissions on outstanding matters consequential to the court's judgment dated 18 June 2025

    IT IS ORDERED that:

    1 The words 'contract works and/or' are struck out from paragraph 94 of the Defendant's Defence and Counterclaim dated 8 May 2024 under CPR 3.4(2) as disclosing no reasonable grounds for defending the claim, and summary judgment is entered on that issue for the Claimants.

    2 If and to the extent that the Defendant intends to maintain such defences, by 4.00 pm on 9 July 2025 it is to file at court and serve upon the Claimants short particulars ('the Further Particulars') briefly setting out its case on the misrepresentation and contract works exclusion defences. This document should:

    (a) Explain precisely how any qualifying misrepresentation under the Consumer Insurance (Disclosure and Representations) Act 2012 ('CIDRA') was communicated to the Defendant; and (if and when it was) exactly how, and in what way, anyone, and if so who, at the Defendant relied upon it.
    (b) If and to the extent that the Defendant relies upon s. 2 (3) of CIDRA, explain precisely how it claims to be entitled to do so.
    (c) Plead that the loss or damage to the Property was caused by or resulted from the contract works, with full and proper particulars as to how this came about.
    (d) Set out the Defendant's case as to precisely how: (i) the estimated cost of the contract works exceeded 20% of the buildings sum insured and/or (ii) the contract works altered the square footage of the house.

    3 The Further Particulars shall be no longer than is strictly necessary, and, in any event, no longer than six pages in length, employing a font size of no less than 12 points, without any foot-notes or annexures; and they shall be verified by a Statement of Truth.

    4 By 4.00 pm on 25 July 2025 the Claimants may file and serve an application for any further directions in response to the Further Particulars, such application to be determined by HHJ David Hodge KC if available.

    5 Upon the Defendant filing and serving the Further Particulars in compliance with paragraph 2 above, and subject to any Order made pursuant to any application under paragraph 4 above, the Application shall be dismissed.

    6 Any written submissions in support of any application for permission to appeal, with concise draft grounds of appeal, are to be filed and served by 4.00 pm on 25 June 2025. Unless otherwise directed, any such application shall be determined on paper. The Parties' time for applying to the Court of Appeal for permission to appeal, if so advised, is extended until 4.00 pm on 16 July 2025.

    7 The Defendant shall:

    (a) Pay within 14 days (i.e. by 4.00 pm on Tuesday, 8 July 2025) the Claimants' costs of the Application on the indemnity basis, summarily assessed in the sum of £87,290.40 (including VAT).
    (b) Pay in any event the Claimants' costs of and occasioned, or thrown away, by the service of the Further Particulars.

    8 In accordance with the order of HHJ Pelling KC dated 28 March 2025, the Defendant shall pay within 14 days (i.e. by 4.00 pm on Tuesday, 8 July 2025) the Claimants' reasonable costs of and occasioned by the extension of time for service of the Defendant's evidence, summarily assessed in the sum of £966.00 (including VAT).

    9 This claim is to be listed for a CCMC on the first convenient date after 1 October 2025 with a time estimate of one-half day (preceded by half a day's pre-reading). Such hearing is to be listed before HHJ Hodge KC, if available. The Claimants' solicitors are to submit an agreed list of convenient dates to the Commercial Court Listing Office by 4.00 pm on Friday 27 June 2025.

    10 The Claimants are to serve this Order on the Defendant.

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