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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Bellhouse & Anor v Zurich Insurance PLC (Rev1) [2025] EWHC 1416 (Comm) (18 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/1416.html
Cite as: [2025] EWHC 1416 (Comm)

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Neutral Citation Number: [2025] EWHC 1416 (Comm)
Case No: LM-2024-000066

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

Royal Courts of Justice,
Rolls Building
Fetter Lane,
London, EC4A 1NL
18 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

Hearing date: Tuesday, 13 May 2025
Date judgment circulated: Monday, 9 June 2025
Date judgment handed down: Wednesday 18 June 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.00 am on Wednesday, 18 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    HIS HONOUR JUDGE HODGE KC

    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 – Whether claimants adopting misstatement in defendant insurer's self-generated statement of insurance that the property was not likely to undergo any contract works within the next 12 months following policy inception – Whether a case of mere nondisclosure – Whether defendant placing reliance on any misrepresentation when incepting policy – Whether contract works exclusion available to defendant – Whether properly and fully pleaded

    The following cases are referred to in the judgment:

    AF Kopp Ltd v HSBC UK Bank plc [2024] EWHC 1004 (Ch)

    Axa Sun Life plc v Inland Revenue Commissioners [2024] EWCA Civ 1430, [2025] 1 WLR 2179

    Boake Allen Ltd & Ors v Revenue and Customs Commissioners [2006] EWCA Civ 25, [2006] STC 606

    BV Nederlandse Industrie van Eiprodukten v Rembrandt Enterprises Inc [2019] EWCA Civ 596, [2020] QB 551

    Crossley v Volkswagen AG [2021] EWHC 3444 (QB), [2023] 1 All ER (Comm)

    Duchess of Sussex (HRH the) v Associated Newspapers Ltd [2021] EWHC 273 (Ch), [2021] 4 WLR 35

    Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)

    Hayward v Zurich Insurance Co plc [2016] UKSC 48, [2017] AC 142

    Jones v Zurich Insurance plc [2021] EWHC 1320 (Comm), [2022] Lloyd's Rep 219

    Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB)

    Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm)

    Niprose Investments Ltd v Vincents Solicitors Limited [2024] EWHC 801 (Ch) and [2025] EWHC 14 (Ch)

    Parallel Media LLC v Chamberlain [2014] EWHC 214 (QB)

    Sumitomo Bank v Banque Bruxelles Lambert SA [1997] 1 Lloyd's Rep 487

    Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm), [2015] 1 All E R (Comm) 961

    TFL Management Services Ltd v Lloyds TSB Bank plc [2013] EWCA Civ 1415, [2014] 1 WLR 2006


     

    His Honour Judge Hodge KC:

    I: Introduction

  1. On the afternoon of 9 May 2022 the claimants, Mr and Mrs Bellhouse, insured their home in Chiswick, at 135 Park Road, London W4 3EX, and its contents with the defendant, Zurich Insurance Plc (Zurich) for the period from 9 May 2022 to 8 May 2023. They did so through insurance brokers, Giles Gowers Insurance Associates (Giles Gowers). It is common ground that this was a consumer insurance contract for the purposes of the Consumer Insurance (Disclosure and Representations) Act 2012 (CIDRA). On 29 December 2022, whilst substantial contract works were being carried out to the property, a fire broke out which caused substantial damage to the property and its contents. The claimants made a claim under their home insurance policy. Zurich has purported to avoid liability under the policy, asserting that it would not have entered into the policy of insurance but for a misrepresentation that the claimants had no plans to carry out any major works of renovation, addition or alteration to their home within the next 12 months. Zurich also seeks to rely upon a contract works exclusion from cover under the terms of the policy. By a Part 7 claim form, issued on 8 March 2024, the claimants seek a declaration to the effect that Zurich is obliged under the insurance policy to indemnify them in respect of the claim, together with an indemnity, damages, interest and costs.
  2. II: The litigation

  3. The litigation has proceeded by way of particulars of claim, Zurich's defence and counterclaim (supplemented by a response to a request for further information under CPR 18), the claimants' reply and defence to counterclaim, and (with the permission of HHJ Pelling KC, by order dated 3 October 2024), Zurich's reply to the defence to counterclaim.
  4. This is my considered judgment on an application, issued by the claimants on 3 February 2025, to strike out certain specified paragraphs of both Zurich's defence and counterclaim, and its reply to the defence to counterclaim, under CPR 3.4 (2); and for summary judgment against Zurich on those paragraphs under CPR 24.3. The claimants contend that Zurich has no real prospect of succeeding on those parts of its statements of case; that there is no reason why the disposal of those parts of Zurich's pleaded case should await a full trial of this claim; and that those paragraphs disclose no reasonable grounds for defending the claim or for bringing the counterclaim. The claimants rely on the second witness statement, dated 3 February 2025, of their solicitor, Mr Stephen John Netherway (a partner in Devonshires Solicitors LLP). By a consent order, approved by HHJ Pelling KC and sealed on 20 February 2025, a costs and case management hearing that had been listed to take place on 28 March 2025 has been vacated and is to be re-listed for hearing following the disposal of this application.
  5. Zurich opposes the application. It relies upon witness statements, all dated 28 March 2025, from:
  6. (1) its solicitor, Mr Paul Kenneth Annesley, a partner in Clyde & Co LLP, (his third);
    (2) Mr Paul Duddle, a senior market underwriter with Zurich, who initially dealt with Mr Colin Davison (of Giles Gowers) by email and by phone, and who generated the original quote and statement of insurance, emailing them, with the other policy documentation, to Mr Davison, all on 3 May 2022 ; and
    (3) Mr Jonathan Field, a market underwriter with Zurich, with whom Mr Neil Murphy (of Giles Gowers) spoke by telephone on the afternoon of 9 May 2022 about securing a reduction in the quoted premium, who incepted the policy, and who sent the final statement of insurance and policy documentation out to Mr Murphy later that same afternoon.
    Zurich also relies upon a signed statement dated 19 September 2024 (but not verified by a statement of truth) made by Mr Adrian Giles, on behalf of Giles Gowers, expressly as a 'neutral party'.
  7. There is a responsive witness statement from Mr Netherway (his third) dated 11 April 2025.
  8. There is no witness evidence from either of the claimants, or from Mr Colin Davison or Mr Neil Murphy (both of Giles Gowers).
  9. On this application, the claimants are represented by Mr Mek Mesfin (of counsel). He relies upon a 24-page written skeleton argument, dated 7 May 2025. Zurich is represented by Mr Daniel Crowley (also of counsel). He relies upon a 25-page written skeleton argument, together with a short cast list and chronology. In addition to the permanent case management bundle (presently extending to 116 pages), there is an application bundle of some 886 pages. There is a joint agreed authorities bundle, comprising some 31 authorities (statute law, case law, textbooks, the White Book commentary on CPR 24, and the 2009 Law Commission Report (No 319) on Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation). This extends to some 1,349 pages. In addition, each party has produced a supplementary authorities bundle, comprising an additional four authorities for the claimants and five for Zurich. These add a further 96 and 114 pages respectively to the authorities that are before the court.
  10. The hearing was estimated to last one day. It took place on Tuesday 13 May 2025. Mr Mesfin (for the claimants) addressed me for some 2 Ό hours in the morning. Mr Crowley (for Zurich) addressed me for some 2 ½ hours, either side of the luncheon adjournment. Mr Mesfin addressed me in reply for a little under 15 minutes. Both counsel are to be congratulated for the cogency, and vibrancy, of their oral submissions; and for keeping within their respective time allocations.
  11. III: Short conclusion

  12. I am satisfied that, with the exception of one minor aspect of the contract works exclusion defence, and subject to Zurich supplementing its pleadings, this is not an appropriate case for either the grant of summary judgment against Zurich on any part of its pleaded defence, or the striking out any part of its statements of case. Since my judgment will not be determinative of any of the substantive issues between the parties, and there are extremely full and detailed written skeleton arguments, I do not propose to reproduce the submissions of the parties in full. Nor do I need to rehearse the evidence in any great detail since this is all in the form of witness statements on which there has been no cross-examination of any of their makers. I will limit this written judgment to what is strictly necessary to explain the reasons for my decision. That is in accordance with that element of the overriding objective which takes account of the need to allot the court's resources to other cases. But first I must set out the procedural landscape.
  13. IV: The procedural landscape

  14. By CPR 3.4 (2) the court may strike out a statement of case if it appears to the court that -
  15. (a) the statement of case discloses no reasonable grounds for bringing or defending the claim;
    (b) the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
    (c) there has been a failure to comply with a rule, practice direction or court order.
  16. According to the commentary at para 3.4.1 of Volume 1 of the current (2025) edition of Civil Procedure, grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded, and other cases which do not amount to a legally recognisable claim or defence. Ground (c) covers cases where the abuse lies, not in the statement of case itself, but in the way the claim or the defence (as the case may be) has been conducted. I am not sure that this latter statement is entirely accurate, because the non-compliance contemplated by ground (c) may result from the failure of the statement of case to comply with some requirement imposed by a rule, practice direction or court order. However, it is not necessary for me to determine this point on the present application.
  17. By CPR 24.3, the court may give summary judgment against a party on the whole of a claim or on an issue if -
  18. (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
    (b) there is no other compelling reason why the case or issue should be disposed of at a trial.
  19. The principles governing a claimant's application for summary judgment were identified by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] (and subsequently approved by the Court of Appeal in a later case). They are set out at paragraph 24.3.2 of Civil Procedure, and may be summarised as follows (omitting citation of authorities):
  20. (1) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success.
    (2) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.
    (3) In reaching its conclusion the court must not conduct a 'mini-trial'.
    (4) This does not mean that the court must take at face value, and without analysis, everything that a claimant says in their statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
    (5) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also other evidence that can reasonably be expected to be available at trial.
    (6) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible, or permissible, on an application for summary judgment. Thus the court should hesitate about making any final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to, or alter, the evidence available to a trial judge, and so affect the outcome of the case.
    (7) On the other hand, it is not uncommon for an application under CPR 24 to give rise to a short point of law or construction; and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of that question, and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, they will in truth have no real prospect of succeeding on their claim, or successfully defending the claim against them (as the case may be). Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. Conversely, if it is possible to show by evidence that, although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist, and can be expected to be available at trial, it would be wrong to give summary judgment, because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because, Micawber-like, something may turn up which might have a bearing on the question of construction.
  21. For the claimants, Mr Mesfin submits that where applications for reverse summary judgment and strike out are made together, CPR 3.4 (2) and 24.3 should be taken together and a common test applied. In summary, the court must consider whether the respondent has a 'realistic', as opposed to a 'fanciful', prospect of success.
  22. For Zurich, Mr Crowley emphasises that, on a claimant's application to strike out a defence, the facts pleaded therein must be assumed to be true. Such an application should not be granted unless the court is certain that the defence is bound to fail. On an application for summary judgment, the criterion which the court has to apply is not one of probability, but rather of absence of 'reality', or what is 'fanciful' or 'inconceivable'. Mr Cowley places particular reliance on the following observations of Warby J in HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch), [2021] 4 WLR 35 at [15]:
  23. 15. As Mummery LJ warned in the Doncaster case at [10], on applications for summary judgment the court must be alert to 'the defendant, who seeks to avoid summary judgment by making a case look more complicated and difficult than it really is'. But as he also said at [11], the court should beware 'the cocky claimant who … confidently presents the factual and legal issues as simpler and easier than they really are and urges the court to be 'efficient' …'. Efficiency is not a ground for entering summary judgment. Judgment without a trial may sometimes result in huge savings of time and costs; that would have been so in the hugely expensive litigation in Three Rivers District Council v Bank of England. But neither Part 24, nor the overriding objective, permits the court to enter judgment on the basis that the claimant has a strong case, the defence is not likely to succeed, and the time and costs involved in a trial are disproportionate to the potential gains.
  24. Mr Crowley also points out that compelling reasons why an issue or issues should be disposed of at a trial under CPR 24.3 (b) include cases:
  25. (1) Where summary judgment will not dispose of the whole case, and there will have to be a trial anyway, regardless of the outcome of the summary judgment application. This is of particular relevance if, at the trial, there will, or is likely to, be evidence concerning the same, or similar, factual matters as those traversed in the application.
    (2) Where the trial will involve at least materially overlapping issues to those thrown up for summary determination, and there is a risk that the facts, as found, could throw a different light upon the position as it might now be thought to be.
  26. Mr Crowley draws attention to observations of Floyd LJ in his leading judgment in TFL Management Services Ltd v Lloyds TSB Bank plc [2013] EWCA Civ 1415, [2014] 1 WLR 2006 at [27]:
  27. … the court should still consider very carefully before accepting an invitation to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross-examination in any event, or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action … Removing road blocks to compromise is of course one consideration, but no more than that. Moreover, it does not follow from Lewison J's seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications … Such questions are better decided against actual rather than assumed facts. On the other hand it may be possible to say that the trajectory of the law will never on any view afford a remedy …
  28. Turning to the rules governing pleadings, Mr Mesfin submits that the importance of the full and accurate pleading of a case that alleges fraudulent misrepresentation cannot be understated. It is well-established that any allegation of fraud must be made clearly, unequivocally, and with sufficient particularity, so that the alleged fraudster understands the case made against them. Mr Mesfin makes extensive reference to passages from the judgment of Saini J (on appeal) in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB). He does so in support of the following propositions:
  29. (1) Allegations that a representation is said to have been made fraudulently must be identified with precision. The precise representations (and whether they were express or implied), and the precise respects in which they were factually false, must be pleaded.
    (2) An explanation of the way in which the representee relied upon the representations must be provided. The reader cannot be left guessing.
    (3) One cannot simply suggest that a case of fraud will 'crystallise' in the course of disclosure, and following witness statements. If it is made at all, a clear and sustainable case in fraud must be made at the time of the pleadings. This must be done in the pleading, verified by a statement of truth, and not in the evidence. It is no answer to say that the case might become clearer, or sustainable, at a later stage.
    Mr Mesfin emphasises that pleadings shape the case. They need to be precise, particularly in cases of alleged fraud.
  30. Mr Crowley places particular emphasis upon the opening observations of Leggatt J in Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm), [2015] 1 All E R (Comm) 961 at [1]:
  31. Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.
  32. I do not detect any material differences between counsel on the applicable legal and procedural principles. Any variances are mere matters of emphasis. I have had regard to these principles when arriving at my decision.
  33. Save in a case where issues of limitation may arise, I am satisfied that the court should not strike out a statement of case, or enter summary judgment against a party, without giving them an opportunity of curing any defects or omissions in their pleaded case; provided, of course, there is good reason to believe that they will be in a position to do so, and they invite the court to take that course. That is the approach I adopted in the case of Niprose Investments Ltd v Vincents Solicitors Limited [2024] EWHC 801 (Ch) and [2025] EWHC 14 (Ch); and also in the case of AF Kopp Ltd v HSBC UK Bank plc [2024] EWHC 1004 (Ch). Unsurprisingly, I was referred to neither of these authorities during the course of argument. That is because they establish no new point of principle, but merely confirm the law as set out in previous case law authority. There is good reason for this approach. It furthers the overriding objective of dealing with the case justly and proportionately, saving everyone time and expense. What is the point in striking out a claimant's statement of case if they can cure any defect by issuing a fresh, appropriately pleaded claim? Equality of arms dictates that a defendant should be in no worse position. That is particularly the case where, as here, one of the heads of relief sought by the claimant is a declaration of right from the court. As will become apparent later in this judgment, I consider that this approach is engaged in the present case.
  34. V: Zurich's defence in summary

  35. Two principal limbs of Zurich's defence to this claim are relevant to the present application. The first is that the claimants made a deliberate, or reckless – effectively a fraudulent – qualifying misrepresentation for the purposes of CIDRA, without which Zurich would not have entered into the contract of home insurance. The second is that Zurich is entitled to rely upon a policy exclusion in relation to reinstatement costs following the fire that engulfed the claimants' home. Zurich raises a number of further, and discrete, defences; but these are quite separate, and largely relate to Mr Bellhouse's conduct after the fire.
  36. As to the first of these two limbs, the misrepresentation defence is founded upon the statement of insurance (SOI) that formed part of the policy documentation. One of the questions asked about the property was:
  37. Is the property, including any outbuildings, undergoing any contract works or likely to undergo any contract works within the next 12 months?
    The answer given was: 'No'.
  38. Zurich pleads that that was a misrepresentation; and that the claimants either knew that it was untrue, or did not care whether or not it was untrue. In May 2022, the property was likely to undergo contract works within the next 12 months. The claimants knew this, as they intended to have contract works carried out within the next 12 months.
  39. The SOI clearly states that:
  40. This Statement of Insurance will form part of your home insurance policy. Please check these details carefully and let us know immediately of any errors. This Statement of Insurance sets out the information we have been given and the cover you have selected. Please check these details carefully and let us know immediately of any errors. This Statement of Insurance and the policy wording describe the cover, terms, conditions and exclusions that apply.
  41. As to the second limb, the buildings cover contains a policy exclusion in respect of any works to the home (described as 'contract works') in the following terms:
  42. We will not pay for any loss or damage to:
    • contract works;
    • your home or outbuildings caused by or resulting from contract works;
    where the estimated cost of those contract works exceeds 20% of the buildings sum insured or £1,000,000 whichever is less or where those contract works alter the square footage of your home or outbuildings.
    Zurich claims to be entitled to rely upon this building exclusion.

    VI: The claimants' challenge to these defences

    (i) The misrepresentation defence
  43. In summary, the claimants challenge the misrepresentation defence on the basis that Zurich received no express representation from the claimants stating that there would be no contract works in the 12 months following policy inception. Rather, the claimants say that it has emerged, through the pleadings and initial disclosure, that it was Zurich itself which assumed that answer. This assumption was not based upon any statement by the claimants, or their brokers; but simply because the brokers' risk presentation lacked any mention of any intended contract works. Zurich did not obtain any confirmation from the claimants, or their brokers, as to the presence, or absence, of any contract works. Despite that, Zurich unilaterally generated a statement of insurance, inserting 'No' as the answer to the contract works question (along with assumed answers to several other questions). Zurich now seeks to avoid the policy on the basis that its own assumed answer was incorrect. The fact that the claimants made no representation to Zurich has a further consequence: it means that there can have been no conceivable factual reliance by any underwriter at Zurich upon any representation of which (on this footing) it was entirely unaware. The claimants seek the strike out of, or alternatively reverse summary judgment on, what Mr Mesfin describes as "this unmeritorious and legally impermissible position".
  44. Mr Mesfin characterises Zurich's case on fraudulent misrepresentation as "fundamentally flawed". He submits that it fails to plead two essential elements: (1) that the claimants made a representation to Zurich, and (2) that Zurich relied upon any such representation. Without these elements, Mr Mesfin submits that Zurich's case on misrepresentation has no real prospect of success. Mr Mesfin emphasises that this application does not ask the court to determine: (i) whether any alleged representation was in fact false (i.e., whether there was any misrepresentation), or (ii) whether, if there was a misrepresentation, it was made in breach of the claimants' duty to take reasonable care not to make a misrepresentation. The only issue for this application is whether the pleaded case discloses any representation at all. Mr Mesfin also points out that there is an issue between the parties as to the role of Giles Gowers; but, for the purposes of this application only, the claimants are content to proceed on the basis of Zurich's pleaded case, which is that Giles Gowers were acting as the claimants' agents when placing the insurance cover with Zurich.
  45. In the course of their oral submissions, both counsel referred me to passages in the Law Commission Report on Consumer Insurance Law, which preceded the enactment of CIDRA. Mr Mesfin emphasises that CIDRA codifies much of what had long been recognised in the insurance industry as best practice, and reflects the approach adopted by the Financial Ombudsman Service. He relies upon the following legal principles governing misrepresentation in consumer insurance contracts (which he develops in his skeleton argument by reference to the authorities):
  46. (1) It is fundamental to distinguish between a claim based upon misrepresentation and one based on non-disclosure. This distinction is critical: the law is far more reluctant to impose a positive obligation to disclose than it is to impose a negative obligation not to mislead. Even in the realm of consumer insurance law, there is no longer, as a matter of principle, any general duty to volunteer information during pre-contractual negotiations.
    (2) S. 2 of CIDRA has abolished the duty of disclosure in consumer insurance contracts and replaced it with a duty to take reasonable care not to make a misrepresentation. This removes the consumer's duty to volunteer information to the insurer. Instead, consumers are required to answer insurers' questions honestly, and to take reasonable care that their replies are accurate and complete. If consumers do provide insurers with information which was not asked for, they must do so honestly and carefully. It follows that in consumer insurance cases, such as the present, an insurer cannot seek to avoid the policy based on non-disclosure alone. Any right to avoid must be rooted in a misrepresentation, in breach of the insured's duty under CIDRA.
    (3) The claimants' duty not to make a misrepresentation ends at the inception of the policy. Under s. 4 (1) (a) of CIDRA, the duty to take reasonable care not to make a misrepresentation applies only before the contract is entered into or varied. It has no application post-inception. It follows that any alleged misrepresentation must be made before the insurance was bound; representations made after that point cannot give rise to any right to avoid.
    (4) A fundamental ingredient of a cause of action in misrepresentation (as opposed to non-disclosure) is an actual representation. There must be a statement made to the complainant; and it is for them to plead the representation on which they wish to rely, and to prove that the pleaded representation was made.
    (5) A misrepresentation claim requires not only a representation, but also reliance upon it by the representee; in this case, the insurer. Without reliance, the causal link between the alleged misrepresentation and the insurer's decision to enter into the contract is not established. The courts have consistently treated reliance as a question of fact, requiring proof that the alleged representation was not only made to the insurer, but also that it was actually received and acted upon by the decision-maker – typically the individual underwriter. It is not sufficient that the representation was made; it must have materially influenced the insurer's decision to underwrite the risk on the terms offered.
  47. Applying these principles, Mr Mesfin emphasises that a properly pleaded claim for misrepresentation must allege that:
  48. (1) a representation was made by or on behalf of the insured; and
    (2) that representation was seen, considered, and relied upon by the insurer in entering into or renewing the policy.
    Absent such allegations, a misrepresentation claim is not properly constituted, and has no real prospect of success.
  49. Mr Mesfin's principal submission is that Zurich has not pleaded that any misrepresentation was made to Zurich by or on behalf of the claimants. In none of its pleadings does Zurich explain the key elements of when, or how, the alleged misrepresentation was made by the claimants to Zurich, or how Zurich relied upon it when incepting the home insurance policy. This is a point taken at paragraph 173 of the claimants' reply and defence to counterclaim:
  50. No part of Zurich's pleaded case alleges that the SOI dated 9 May 2022 was in fact provided to Zurich (about which no admissions are made). Zurich are put to strict proof (if it is its case) that Giles Gowers (i) were required to send it to Zurich and (ii) in fact did send it to Zurich. As it stands, Zurich's case does not even plead any factual reliance by any underwriter at Zurich on the SOI dated 9 May 2022. In those circumstances there can be no basis for an allegation that a representation, let alone a qualifying misrepresentation under the 2012 Act was made.
    Mr Mesfin emphasises that cover was incepted on the afternoon of 9 May 2022, so that any communications, or documents, made or created after this time are irrelevant, because the duty to take care not to make any qualifying misrepresentation ended once the contract of insurance was concluded. On Zurich's case, this took place at 16.16 on 9 May 2022, when Mr Field (of Zurich) sent an email to Mr Murphy (of Giles Gowers) attaching updated policy documentation "as discussed", adding: "Should you have any queries or require any changes, please let me know." Anything that occurred thereafter is irrelevant to the misrepresentation defence.
  51. The misrepresentation on which Zurich relies was contained within the SOI. Yet Mr Mesfin objects that this was a document generated by Zurich itself, and not by the claimants. Mr Duddle (of Zurich) first generated the SOI on 3 May 2022; and he sent this, with the other policy documents, to Mr Davison (of Giles Gowers) by email at about 12.35 that afternoon. A further version was sent with Mr Field's email to Mr Murphy at 16.16 on 9 May 2022, when cover was incepted. At paragraph 15 of Mr Duddle's witness statement, he makes it clear that it was he who inserted the answer 'No' to the question about future contract works in the SOI. He did so because Mr Davison had made no mention of any works being undertaken to the property. "If Colin did not mention that there were any works then I took it that none were planned at the property." Mr Mesfin points out that it was therefore Mr Duddle, and not the claimants, or their brokers, who answered 'No' to the contract works question. This flatly contradicts Zurich's pleaded case that it was the claimants who supplied that answer.
  52. Mr Mesfin submits that Zurich's case is not advanced by the telephone call at about 3.16 on the afternoon of 9 May, when Mr Murphy called Mr Field to request a reduction in the quoted premium. There is no suggestion in Mr Field's evidence that, during this call, Mr Murphy said anything relevant to the contract works question. Mr Field simply proceeded on the basis that since no changes were made to any of the answers to any of the questions in the SOI, he was prepared to bind the risk. Mr Mesfin submits that Mr Field's decision to proceed was based upon his own assumptions. He did not rely upon any statement or confirmation from Mr Murphy. Rather, he proceeded in the belief that Mr Duddle had completed the form correctly, and that he (Mr Field) had not been told of any changes by Mr Murphy. In so doing, Mr Field was relying upon a duty of disclosure which simply does not exist. There is no pleaded case of, nor any evidential basis for, any qualifying misrepresentation being made to Mr Field by either the claimants, or Giles Gowers.
  53. Mr Mesfin submits that since it was Zurich itself which generated the SOI document containing the answer 'No' to the contract works question, it cannot now treat that as a misrepresentation by the claimants. He relies upon observations by Mr Richard Seymour QC (sitting as a deputy High Court judge) in Parallel Media LLC v Chamberlain [2014] EWHC 214 (QB) at [48] to the effect that a party cannot rely upon a document containing statements which it has made itself as if they were representations made by the other party. "In English law that amounted to the giving of warranties, not the making of representations."
  54. For these reasons, Mr Mesfin submits that Zurich's assertion that 'No' was the claimants' answer to the contract works question has no factual basis. The claimants never answered that question. The SOI was not created by them (or by Giles Gowers); nor was it provided to Zurich by them (or by Giles Gowers). Rather, it was generated and completed by Zurich. Further, Zurich does not plead any reliance by Zurich on any statement about contract works – just as it does not plead that either the claimants (or Giles Gowers) made any such representation. There is no pleading that the underwriter who issued the policy received, or relied upon, any statement regarding contract works from the claimants, or their brokers. Mr Mesfin suspects that Zurich cannot plead this (or support it with a statement of truth) because:
  55. (1) no such statement was ever made;
    (2) the SOI was never provided to Zurich because it was self-generated by Zurich (and only provided by Zurich to others); and
    (3) Zurich first issued a quotation offering to provide cover on the next working day after it had received (by email timed at 10.52 on the morning of Friday 29 April 2022) a risk summary which was silent about contract works.
  56. Mr Mesfin emphasises that Zurich has not pleaded any case based upon s. 2 (3) of CIDRA. However, Mr Mesfin addresses this provision for the sake of completeness. S. 2 (3) provides as follows:
  57. 2 Disclosure and representations before contract or variation
    (3) A failure by the consumer to comply with the insurer's request to confirm or amend particulars previously given is capable of being a misrepresentation for the purposes of this Act (whether or not it could be apart from this subsection).
  58. The phrase "particulars previously given" necessitates two preconditions: first, that the consumer has provided information to the insurer, meaning, in the case of the claimants, that they had provided information to Zurich; and secondly, that such information is the subject of a subsequent request for confirmation or amendment. A request to 'confirm or amend' presupposes, and factually requires, that there is something specifically originating from the consumer, and provided to the insurer, which is either to be confirmed or corrected. Thus, s. 2 (3) applies only where (1) the consumer has previously given particulars to the insurer concerned, and (2) the insurer subsequently requests confirmation or amendment of those particulars. I would further add (3) that the consumer must also fail to comply with the insurer's request.
  59. Here, Mr Mesfin submits that neither condition is satisfied. Zurich had simply made assumptions; the claimants had not previously given any particulars to Zurich about contract works. Nor was there any request by Zurich to confirm or amend information it had received from the claimants – for the simple reason that there was no such information.
  60. Whilst s. 2 (3) allows an insurer to invite a consumer to revisit and, if necessary, correct, information they have already supplied to that insurer, it imposes no duty on the consumer to verify assumptions unilaterally made by the insurer in the absence of any prior consumer representation to that insurer. Where an insurer – such as Zurich – has made statements, or drawn conclusions, based purely upon its own assumptions, without any input from the consumer, those statements cannot be re-characterised as 'particulars previously given'. Such insurer-generated material lies entirely outside the scope of s. 2 (3).
  61. Mr Mesfin objects that Zurich is impermissibly seeking to invert the statutory framework by treating its own assumptions as if they were consumer representations. It would be seeking to impose upon the claimants a duty to correct or confirm Zurich's own statements – statements that the claimants neither made nor endorsed. That approach finds no support in either the language, or the legislative purpose, of CIDRA. Parliament did not intend to create any duty upon consumer insureds either to vet, or to verify, insurer-generated documentation. On the contrary, CIDRA was designed to protect consumers by codifying the practice, endorsed by the Financial Ombudsman Service, of requiring insurers to ask, and obtain answers to, clear and specific questions, and to bear the consequences if they failed to do so. The Law Commission had been explicit in rejecting the imposition of burdensome, and unrealistic, disclosure obligations on consumers. The test under CIDRA is whether the insurer has asked a clear question, and whether the consumer has provided an inaccurate response; not whether the consumer has failed to police assumptions that the insurer has made independently.
  62. During the course of his oral submissions, Mr Mesfin referred to the relevant section (paragraph 5.52) of the Law Commission Report. This gives two instances of where s. 2 (3) might apply: (1) Where an insurer writes to a consumer on renewal with a statement of the information it holds about the consumer, and asks them whether anything has changed. (2) Where the insurer takes information from the consumer over the phone, and then sends the consumer a statement of fact, and asks the consumer to contact them if the statement is incorrect. Neither situation applies here. S. 2 (3) is simply not engaged where the relevant particulars have not previously been given by the insured, but rather have been assumed, and generated, by the insurer: there is no requirement on an insured to mark the insurer's own homework. Any duty of disclosure is limited to the correction of actual information previously provided by the insured in response to a request from the insurer to confirm or amend particulars the insured has previously given. Mr Mesfin also referred to the practice of the Financial Ombudsman Service when considering a consumer's complaint that, in finding a misrepresentation, their insurer had treated them unfairly. If an insurer considers that information given to them was incomplete or incorrect, the Ombudsman will "need the insurer to provide evidence showing what questions was [sic] asked, what answers were given and proof showing the answer was incorrect".
  63. In the course of his reply, Mr Mesfin pointed out that the only relevant written 'request' from Zurich for confirmation of any particulars given would have had to be constituted by Mr Duddle's email of 3 May 2022 (timed at about 12.35), attaching the original SOI and the other policy documentation. That is because the later email from Mr Field, timed at 16.16 on 9 May, was sent after, or contemporaneously with, the inception of the policy.
  64. In the course of his reply, Mr Mesfin also contrasted the facts of this case with those in Jones v Zurich Insurance plc [2021] EWHC 1320 (Comm), [2022] Lloyd's Rep 219. There the underwriter had sought express confirmation from the insured's broker as to the accuracy of the information that there had been no previous claims. Neither Mr Duddle's original email, nor Mr Field's later email, contained any similar request. Mr Mesfin reiterated that relying upon one's own mistaken assumption is very different from relying upon another's representation. Inducement cannot take place without reliance.
  65. (ii) The contract works exclusion
  66. Mr Mesfin submits that Zurich's reliance on the policy exclusion in respect of loss or damage 'caused by or resulting from contract works' is untenable since it does not plead the cause of the fire; nor does it allege any facts to support any case that the fire was caused by contract works. Zurich has failed to plead any causal link between the contract works and the fire. Alleging that the fire occurred 'during the course of the contract works' – which had been ongoing for some time before the fire – is not a pleading that the fire was 'caused by or resulting from' those works. The formulation 'during the course of' merely suggests a temporal coincidence, and not causation. At a minimum, Zurich is required to plead: (1) what contract works were being carried out at the time of the fire; (2) the mechanism by which those contract works caused or resulted in the fire; and (3) what resulting loss or damage is said to fall within the exclusion. Without those allegations, the contract works exclusion defence has no real prospect of success. At present, there is no issue as to the cause of the fire (because Zurich has not pleaded one), still less any issue in dispute that could engage the exclusion (namely a dispute as to whether the contract works caused loss or damage which would fall to be excluded from cover).
  67. The courts require exclusions in insurance policies to be pleaded with precision and specificity because they limit coverage otherwise provided by the policy of insurance. Mr Mesfin acknowledges that parties are not required to plead evidence. But, he says, that is not the issue here. The point is more fundamental: Zurich has failed to plead any facts to establish that the exclusion applies. There is no pleaded basis that the cause of the fire was the contract works. Mr Mesfin emphasises that this position is aggravated by Zurich's repeated refusal, over the course of the past ten months, to remedy its deficient pleadings, despite ample opportunity to do so; and its insistence that its case should stand or fall on the pleadings as they are. This is a point that, he says, applies equally to the misrepresentation claim. This is not merely a question of deficiencies in the pleading; it has real, and practical, consequences. Without a properly particularised case as to how the exclusion is said to be engaged, it is impossible to identify the real issues in dispute, or determine the proper scope of disclosure (as required by PD 57AD). That not only prejudices the claimants in understanding, and seeking to meet, the case against them; it also deprives the court of the ability to case manage and resolve the issues effectively, fairly and at proportionate cost. The steps of extended disclosure, witness, and expert evidence cannot sensibly be taken in a vacuum.
  68. In summary, Mr Mesfin objects that Zurich cannot invoke an exclusion to avoid liability unless and until it pleads a properly particularised case that sets out why the exclusion is engaged. He says that this is all the more striking given that Zurich already holds expert evidence on the cause of the fire, which it has repeatedly refused to disclose.
  69. In the course of his oral submissions, Mr Mesfin also addressed Mr Crowley's alternative submission that once the house was being redeveloped, then the whole property fell to be treated as 'contract works'. This is wrong, both as a matter of law, and on the facts. First, as to the law, 'contract works' are works carried out to the house. They are not the house itself. Otherwise the second limb of this exclusion would be entirely unnecessary, otiose, and redundant. The physical house is separate from the 'contract works'.
  70. Secondly, on the facts, the works were being carried out to the house. They did not involve the construction of a replacement house. That is clear from paragraph 40 of Zurich's defence and counterclaim, which pleads:
  71. The contract works to the Property were in summary (i) a crown roof extension and loft conversion; and (ii) a single storey rear extension and internal alterations; and (iii) related works ('the contract works').
    Even on Zurich's pleaded case, the property was not being 'entirely re-developed' (as asserted at paragraph 79 of Mr Crowley's skeleton argument).
    (iii) No other compelling reason for trial
  72. Mr Mesfin submits that there is no other reason why either the misrepresentation claim or the contract works exclusion issue should proceed to trial. The suggestion that the claimants' application should be refused because its success would not dispose of the entire claim is misconceived for the following reasons:
  73. (1) The relevant question is whether there is any compelling reason why the issue (rather than the claim as a whole) should be disposed of at trial. Both the misrepresentation claim and the contract works exclusion defence are matters that ought to be grappled with now; and Zurich has suggested no real reason why they ought not to be dealt with now. Summary judgment is appropriate where, as here, the principal basis of the defence to the claim, and the counterclaim advanced by Zurich, are shown to be untenable. Still less is there any 'compelling' reason to postpone their resolution until trial.
    (2) Even if the other defences remain in issue, they all concern narrow, self-contained allegations of post-inception fraud. These will involve very limited factual disputes, will require limited disclosure and evidence, and will require confined legal argument. These points are entirely distinct from the misrepresentation claim and the contract works exclusion - which operate pre-inception - because they relate to alleged fraud during the terms of the policy. There is no overlap. If these limited, post-inception fraud allegations were the only issues left, the litigation would be substantially narrowed. Most of the current pleadings would fall away. The burden of extended disclosure, witness evidence, and trial preparation would be significantly reduced, leading to major savings in time and costs. That is especially relevant where, as here, the claimants are private individuals, who are having to fund this claim personally.
    (3) In his reply, Mr Mesfin suggested that many, if not all, of the allegations of a 'cover-up' would also fall with the fall of the misrepresentation claim.
    (iv) Further oral submissions
  74. Mr Mesfin developed these submissions in oral argument. In summary, he emphasised that Zurich now accepts that it had made an assumption about the answer to the contract works question. It did not ask that question itself. Rather it assumed the claimants' broker had done so. That was said to take the case into the territory of mere non-disclosure. There was no allegation of any representation, and therefore there could be no allegation of any reliance. Nor did any of Zurich's pleadings adequately engage the contract works exclusion.
  75. Mr Mesfin addressed the court under five headings:
  76. (1) The relevant legal and factual background.
    (2) The pleaded case.
    (3) Zurich's attempts to rest the application.
    (4) Reliance.
    (5) The contract works exclusion.
  77. Mr Mesfin stressed that the gravamen of any claim in misrepresentation is that the counter-party has said something upon which the complainant has relied as inducing it to enter into a contract. Here the complaint is not: You spoke and I was misled by what you said. Rather, information was simply not volunteered. Zurich assumed an answer to a question that had never been asked; and the claimants failed to correct Zurich's pre-existing, and self-generated, understanding. That represents a failure to speak out, rather than speaking out falsely. There is a bright-line distinction between silence that misleads and silence that fails to correct a misunderstanding. In the context of consumer insurance contracts, a duty to disclose can only arise in limited circumstances, none of which applied here. That is because, when enacting CIDRA, Parliament removed any duty of disclosure in the case of consumer insurance contracts. If an insurer fails to ask, it cannot complain about any non-disclosure. The burden rests with the insurer to ask questions. If it fails to do so, it cannot avoid the policy.
  78. Here, surprisingly, Zurich's underwriting was not based upon information provided by the insured, but upon the insurer's unilateral assumptions, based upon the brokers' silence. Zurich now seeks to hold the insured to an answer they never gave. It assumed an answer from the brokers' silence, and now seeks to hold the claimants to an answer they never gave to a question they were never asked. But CIDRA does not permit an insurer to rely upon assumptions and inferences from mere silence. In addition to the contract works question, Zurich made similar assumptions from silence about the lack of any director disqualifications or pending criminal prosecutions on the part of the claimants. Zurich simply filled in the gaps in the SOI itself, based upon the brokers' silence. The root cause of this (as explained at paragraph 16 of Mr Duddle's witness statement) is that Zurich's underwriters were "really busy at the time and that we would send out quotes more in hope than expectation". Unfortunately, such an approach comes with a risk. If an insurer chooses speed over scrutiny, says Mr Mesfin, it cannot invoke CIDRA to remedy the consequences of its own haste.
  79. Mr Mesfin emphasises that it is a bedrock of case management that a party is bound by their pleadings. He accepts that a party does not need to plead evidence; but it does need to plead a cause of action. Here there is no plea that the claimants ever made any relevant representation to Zurich. The claimants accept that they signed each page of the SOI without making any amendments. But they did not do so until 24 May. And they then returned the document to their brokers, and not to Zurich. That gave rise to no qualifying representation because of: (1) timing: it was some two weeks after the inception of the insurance cover and policy, and the duty not to make any misrepresentation had long-since ceased; and (2) non-transmission: there is no plea, and no evidence, that the signed SOI was ever passed on to Zurich. At paragraph 18 of his witness statement, Mr Adrian Giles says that upon reviewing the brokers' retained file, there is no correspondence suggesting that the signed SOI was ever forwarded on to Zurich.
  80. On the subject of reliance, Mr Mesfin identifies a three-stage approach: (1) Representation – was anything said by the insured? (2) Reliance – did the insurer hear the representation? (3) Inducement – did the representation affect the insurer's conduct? He complains that Zurich elides reliance and inducement.
  81. Mr Mesfin relies upon observations of Cockerill J in Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm) at [400]-[402] as authority for the proposition that the complainant must have been aware of the relevant representation before they can say that they were induced to act in reliance upon it. Rejecting the suggestion that this would create a 'rogue's charter', the judge commented that… there is no unfairness in not providing a remedy in respect of a representation which has not been received or comprehended. The greater unfairness is to provide a remedy when the standard requirements of the cause of action are not satisfied.
  82. In doing so, Cockerill J drew upon the following observations of Hamblen J in two earlier cases:
  83. (1) Unless one understands the representation is being made, it is difficult to see how it can be said to have been relied upon.
    (2) In so far as the claimants were alleging implied representations it was incumbent on them to prove that such representations were understood to have been made since otherwise there could be no reliance.
    I note, in passing, that earlier (at [398]), Cockerill J described the equation of non-disclosure with misrepresentation as 'legal heresy'.
  84. Mr Mesfin relies upon the conclusion expressed by Cockerill J at [421]-[422]:
  85. 421. I conclude that the law does require that a representation (however made) is received by the representee and that to satisfy the requirements of reliance the representee must be aware of it/have it actively present to their mind when they act on it.
    422. Mr Lord endeavoured to persuade me that in this context a test of 'present to the mind' would suffice. This I regard as a dangerous step away from where the authorities stand, essentially because such a test too easily elides into assumption. 'Actively present to the mind', becomes 'present to the mind', from which it is but a short distance to 'at the back of my mind' - which was exactly where [the claimant] wanted to go because that was what Dr Bauknecht said. But where something is at the back of the mind is it because of assumption or representation? Very often it will be only because of an assumption unconnected to what has been said or done. Accordingly I consider that this approach merely provides another route to dissolve the distinction between representation and assumption – which is also the division between representation and non-disclosure. This is a problem which is particularly acute when (as here) one is dealing with implied representations as to honesty, because it turns every contract into a contract of utmost good faith.
  86. Here, Mr Mesfin submits that there is no plea of reliance; it is merely asserted. It was Zurich which generated the SOI. It was then sent to the brokers, and passed on to the claimants. But Zurich never received back from the brokers the SOI, duly signed by the claimants. In any event, by the time the claimants came to sign the SOI, it was already too late; the insurance policy and cover had already been created and incepted. Mr Mesfin objects that Zurich has 'reverse-engineered' a case on reliance. It relies upon its own document, constituted by answers which Zurich simply assumed, and which were not supplied by the claimants. Mr Mesfin accepts, by reference to Hayward v Zurich Insurance Co plc [2016] UKSC 48, [2017] AC 142, that a complainant need not necessarily believe the representation to be true, so long as it influenced the complaint's mind, and had an effect upon their decision. In the graphic words of Lord Toulson, in his concurring judgment (at [62]):
  87. A misrepresentation which has no impact on the mind of the representee is no more harmful than an arrow which misses the target.
    But the complainant must at least have known about the representation before it can assert that it relied upon it.
  88. For all these reasons, Mr Mesfin invites the court to strike out the relevant parts of the defence, and to enter reverse summary judgment in favour of the claimants in the terms of the draft order that accompanies the application notice.
  89. VII: Zurich's response

  90. For Zurich, Mr Crowley submits that the claimants' application is misconceived because:
  91. (1) Zurich has a realistic prospect of success on both (a) the misrepresentation, and (b) the contract works defences;
    (2) Zurich's case on these two issues is supported by the current evidence, with the full evidence to be exchanged in due course; and
    (3) There are compelling reasons why the issues should be disposed of at a trial.
  92. In very brief summary, Zurich asserts that in May 2022, the claimants made a deliberate or reckless (or careless) qualifying misrepresentation by misrepresenting their intention to carry out contract works to their home in the following 12 months. The claimants expressly confirmed, endorsed and adopted the question and answer in the SOI that the property was not likely to undergo any contract works within the next 12 months; and they instructed Giles Gowers to secure insurance on that basis. The claimants did then, in fact, carry out the contract works; and these caused loss and damage, both to the contract works themselves, and to the property, on 29 December 2022, when a fire occurred during the course of the contract works. Without the misrepresentation, Zurich would not have entered into the contract of insurance with the claimants at all. Zurich have now avoided the policy.
  93. Mr Crowley submits that further evidence needs to be adduced at trial as to what communications took place between the claimants and Giles Gowers, especially what questions they asked, and what answers were given by Mr Bellhouse, throughout the history of their relationship, particularly concerning contract works in existence or in contemplation. This is said to be especially significant now that the claimants are disputing a second, key telephone call between Mr Bellhouse and Mr Davison on 29 April 2022. Evidence will need to be given about this at trial.
  94. Mr Crowley criticises Mr Mesfin's skeleton argument for ignoring, or misunderstanding the 'shape of the case' from the statements of case and the documents and evidence adduced so far. He submits that this application is based on a misunderstanding, and confusion, of the well-established principles of insurance law. Likewise, Mr Mesfin misunderstands, and so confuses, the purpose of statements of case, as opposed to the disclosure that will be given, and the evidence that will be adduced, on the issues identified by the statements of case. Disclosure and evidence on the issues so identified will be produced in the ordinary way, in accordance with the court's directions at the first, deferred, costs and case management hearing. Mr Crowley claims that the misrepresentation and contract works defences are fully and properly pleaded. He says that it is noteworthy that the Part 18 request for further information was fully, and properly, answered; and that there has been no further such request.
  95. In summary, Mr Crowley submits that at the heart of Zurich's first defence is that the claimants misrepresented the contract works they were contemplating. They secured home insurance on the basis of that misrepresentation. Without the misrepresentation, Zurich would not have entered into the contract of insurance. Likewise, the loss and damage, which was contract works, and was caused by contract works, is clearly pleaded and evidenced. Against that unpromising factual backdrop, Mr Crowley says that the application for strike out and summary judgment is misconceived and hopeless.
  96. (i) The misrepresentation defence
  97. Mr Crowley emphasises (by reference to paragraphs 11 to 15 of his witness statement) that Mr Duddle assumed that Mr Davison had questioned Mr Bellhouse about any contract works. Mr Duddle made this assumption because he was aware that Mr Davison knew that Zurich would not write new business where contract works were involved or contemplated. Since Mr Davison made no mention of any works to the property during their telephone conversation, shortly after 12.15 on the afternoon of 3 May 2022, Mr Duddle also assumed that no such works were being undertaken or planned within the next 12 months. If the answer to the contract works question on the SOI had been 'Yes', then Mr Duddle would not have generated a quotation. Instead, he completed the questions on the SOI, generated the quotation, and then emailed it to Mr Davison on 3 May 2022 at around 12.35pm (along with the SOI and the other policy documents) so as to ensure that Giles Gowers checked the questions and answers with the claimants, as their customers.
  98. The claimants plead that on 3 May 2022 (at 14.28), Mr Davison told Mr Bellhouse that he had obtained a quotation from Zurich; and Mr Davison went through a number of questions which related to the SOI. Later that afternoon (at 16.19) this was emailed through to Mr Bellhouse. Mr Crowley says that evidence will need to be given at trial about that conversation. Paragraph 91.3 of the claimants' reply and defence to counterclaim pleads that Mr Bellhouse and Mr Davison spoke by telephone on 9 May 2022 at 13:37. During this call:
  99. Mr Bellhouse and Mr Davison went through the SOI. Mr Bellhouse specifically raised with Mr Davison the contract works question on the SOI. Mr Bellhouse explained to Mr Davison that he had aspirations to do a loft conversion but that he could not presently afford to do so. In response to Mr Davison asking Mr Bellhouse if he anticipated being able to do so in the next 12 months, Mr Bellhouse told him there was no end in sight to the dispute and that he was likely to just fix the roof. Mr Davison advised Mr Bellhouse to answer 'No' to the works question on the SOI, so informing Mr Bellhouse that 'No' was the correct answer to that question. Mr Bellhouse and Mr Davison spoke about the position if in the future Mr Bellhouse was able to afford to do the loft conversion or other renovation works. Mr Davison said that public liability insurance and contractors all risk cover would be required.
    This, says Mr Crowley, is probably the most crucial document in the case.
  100. At 14.39 on 9 May 2022, Mr Bellhouse replied to Giles Gowers's email of 3 May 2022 (which included the SOI) asking them "to progress with this Zurich policy". Mr Crowley contends that the claimants thereby instructed Giles Gowers to place the insurance with Zurich, on the basis that the answer to the contract works question in the SOI was 'No'. This, says Mr Crowley, is the misrepresentation. The claimants admit, at paragraph 159.1 of their reply and defence to counterclaim, that they answered 'No' to the contract works question in the SOI. They thereby admit that they confirmed, endorsed, and adopted Zurich's answer. That was communicated to Zurich by Mr Murphy calling Zurich and placing the insurance on the basis of the documents provided by Zurich, including the SOI. The importance of the accuracy of the SOI, and the need to "check these details carefully and let us know immediately of any errors", is emphasised in the SOI itself, and throughout the insurance documentation. The fact that Mr Bellhouse believed that he had completed the SOI himself is entirely consistent with Zurich's case that he endorsed, confirmed, and adopted the answer 'No' to the contract works question. In this case, looking at what was said and done, and its likely effect upon Zurich, that is precisely what happened. Mr Bellhouse instructed the brokers to place the insurance on the basis of that misrepresentation.
  101. On 9 May 2022, in a telephone call starting at 15.16, Mr Murphy (of Giles Gowers) called Mr Field (of Zurich) seeking to reduce the premium on the quotation. Mr Murphy did not seek to amend the answer 'No' to the contract works question. He thereby secured cover for the claimants on the basis that the answer to the contract works question was 'No'. On that basis, Mr Field agreed to reduce the premium slightly, and to send updated policy documents (including the final SOI, with the reduced premium figure) to Giles Gowers. Mr Field did so at 16.16 on 9 May. Zurich contends that this is when the policy incepted. Later that afternoon, at 16.44, Mr Murphy sent the final SOI and the other policy documentation to Mr Bellhouse, who was asked to read the attached documents carefully, make sure that all the details were in order, and to "kindly print off, sign and date each page of the Statement of Insurance form to our office…". Mr Murphy chased Mr Bellhouse for this on 20 May 2022. On 24 May 2022, Mr Bellhouse returned the SOI to Giles Gowers having signed each page confirming that its contents were correct.
  102. Mr Crowley submits that the misrepresentation is clearly pleaded in paragraph 26 of the defence and counterclaim. The claimants admit (in paragraph 159.1 of their reply and defence to counterclaim) that they answered 'No' to the contract works question; but they deny that it was a misrepresentation, asserting (in paragraph 162) that "Mr Bellhouse was honest and careful in answering the Contract Works Question". Mr Crowley acknowledges that, on the evidence to date, the claimants may not have physically filled out the SOI with the answer 'No' to the contract works question. But he submits that it is telling that the claimants' verified pleaded case (consistent with their solicitors' pre-action correspondence) is that they believed that they did. In any event, the evidence establishes that they confirmed, endorsed and adopted the answer 'No' on the SOIs.
  103. In considering what representation, if any, was made, Mr Crowley emphasises that the court will consider the relevant words and conduct in their context. He relies upon the following observations of Langley J in Sumitomo Bank v Banque Bruxelles Lambert SA [1997] 1 Lloyd's Rep 487 at p. 515 (col.1):
  104. It is well established in law and accepted by the parties that the question whether any and if so what particular representation was made depends on an objective assessment of what was said or done and its likely effect on the alleged representee in the context in which the particular parties were concerned. In other words, what would the documents and exchanges relied upon have conveyed to a prudent [insurer] in the position of [Zurich].
  105. Mr Crowley submits that, on an objective assessment of what was said and done here, and its likely effect upon Zurich in this context, the claimants confirmed, endorsed and adopted the answer 'No' to the contract works question on the SOIs. They instructed Giles Gowers to effect the insurance on that basis. Hence, the claimants made a misrepresentation to Zurich.
  106. Mr Crowley further submits that Parallel Media LLC v Chamberlain should not be treated as good authority for the proposition that there cannot be a representation where an insured confirms and adopts a statement drafted by an insurer. The deputy judge cited no authority in support of that conclusion in Parallel. It is not an insurance case; nor is it a case under CIDRA. It is contrary to the "wide and flexible approach to the issue of what amounts to a misrepresentation" that was advocated by the Law Commission at paragraph 5.50 of their Report. The authority has been doubted in O'Sullivan, Elliott and Zakrzewski: The Law of Rescission (3rd edn) at para 4.75 in the following terms:
  107. It has been suggested that where a person requests the purported representor to verify propositions which the person had himself formulated, and the representor does so, that would amount to the giving of warranties, not the making of representations. However, it is difficult to discern the rationale for this analysis. Whether the adoption of such formulations constitutes a representation or a warranty must depend on the character and terms of the verification or confirmation. If the purported representor promises or warrants that the propositions are true, it will be a contractual warranty (unless that conclusion is inconsistent with other contractual terms). If the purported representor states, adopts, represents, or repeats the relevant propositions, they would amount to a statement of fact, and therefore a representation.
    A foot-note adds that:
    It is also contrary to commercial practice whereby extensive schedules of 'warranties' are often prepared by purchaser's solicitors and the sellers are asked to both 'represent and 'warrant' that they are true. The propositions thereby constitute representations despite having been prepared by the purchaser's solicitors.
  108. In the course of his oral submissions, Mr Mesfin did not take any issue with the general principle enunciated in the Sumitomo Bank case; but he confessed himself to be mystified as to how it assists Mr Crowley on the facts of the instant case. Mr Mesfin described Mr Crowley's explanation of the misrepresentation allegedly made by the claimants to Zurich as 'entirely opaque'. At best, it was merely an allegation of non-disclosure. Although there had been some academic criticism of the observation in the Parallel Media case, it had never been disapproved in any later authority. It was precisely in point. Since it was Zurich that had supplied the answer to the contract works question, it could not amount to a misrepresentation.
  109. Mr Crowley also attacks Mr Mesfin's reliance upon s. 2 (3) of CIDRA. He submits that the phrase 'particulars previously given' in s. 2 (3) is not limited to particulars previously given by the insured. S. 2 (3) introduces a new concept, and makes it clear that there is a misrepresentation for the purposes of the Act 'whether or not it could be apart from this subsection'. At paragraphs 5.50-5.54 of their Report, the Law Commission advocates "… a wide and flexible approach to the issue of what amounts to a misrepresentation". The Commission did not seek to limit 'particulars previously given' to particulars previously given by the insured. There is no reason why it should be so limited. The absence of any such limitation is entirely in accordance with the purpose of CIDRA, which is to give insurers rights and remedies in response to a misrepresentation by an insured. The insured is being given the full opportunity to confirm or amend the particulars, so there is no reason to limit s. 2 (3) to particulars given by the insured. Here, the claimants confirmed, endorsed, and adopted the answer to the contract works question. The two examples given by the Commission at paragraph 5.50 of their Report are merely examples of situations where s. 2 (3) might apply; they are not intended to be exhaustive. In any event, it is significant that the first example applies where information is 'held' by the insurer, with no mention of it having been given by the insured. In answer to a question from the Bench, Mr Crowley submitted that an 'omission', for the purposes of s. 2 (3), is merely an omission to comply with a request from the insurer; it does not require an outright refusal.
  110. On the issues of reliance and inducement, Mr Crowley emphasises that the SOIs containing the misrepresentation were sent by Zurich to Giles Gowers, who then sent them on to the claimants. Obviously, Zurich saw, considered, and relied upon these documents. Mr Crowley says that the claimants' inability to grasp this pretty fundamental and self-evident point appears to be the principal source of their ongoing confusion as to what they term 'factual reliance', which has led to this misconceived application for strike out and summary judgment. In any event, Mr Crowley says that there is no issue between the parties, since, in Devonshires' pre-action letter dated 6 August 2023, the claimants have already conceded that the misrepresentation was communicated to Zurich. Reliance and inducement, are clearly pleaded, and particularised, in paragraphs 9 and 11 of Zurich's reply to the defence to counterclaim.
  111. Mr Mesfin's arguments are said to be premised on a misunderstanding of, and confusion as to, some of the well-established principles of insurance law. The correct legal analysis is that Zurich were 'induced' to enter into the policy by the claimants' misrepresentation in the SOIs as, without the misrepresentation, Zurich would not have entered into the contract of insurance with the claimants at all. Inducement (and reliance) are questions of fact. Zurich's factual reliance on the misrepresentation in the SOIs is properly pleaded. Mr Crowley references paragraphs 78 and 79 of Zurich's defence and counterclaim. These plead:
  112. 78. Without the misrepresentation, Zurich would not have entered into the contract of insurance with the claimants at all.
    79. The misrepresentation was a 'qualifying misrepresentation' within the meaning of the 2012 Act.
    It is obviously part of the plea in these two paragraphs that Zurich saw, and considered, and relied, as a matter of fact, upon the misrepresentation in the SOIs. In any event, reliance is further expressly pleaded in paragraph 9 of Zurich's reply to the defence to counterclaim.
  113. In his oral submissions, Mr Crowley pointed out that the Loreley Financing case had not featured in Mr Mesfin's skeleton argument. It was a very different case to the present. The judgment did not follow on from a strike out, or summary judgment, application, but was delivered after a trial of more than five weeks. At trial, the claimant failed to establish any of the alleged misrepresentations, so Cockerill J's observations on the issue of reliance are said to have been obiter. Mr Crowley submits that a more reliable guide is the judgment of Waksman J in Crossley v Volkswagen AG [2021] EWHC 3444 (QB), [2023] 1 All ER (Comm). That case involved an application for summary judgment. This was refused, both because the claim in deceit, founded upon an implied representation by conduct, had a real prospect of success; and because there were other compelling reasons for a trial. Even if there was nothing in the deceit claim, the trial of the other claims was likely to remain extensive and involved; and it would cover the same, or similar factual, evidence as to the defendant's conduct. In the course of his judgment, Waksman J had to consider whether, as a matter of law, in order to prove reliance upon an implied representation, a representee must plead and prove that they were 'consciously aware' of the representation in question. This was referred to as 'the awareness condition'. For the reasons developed in his judgment, Waksman J considered that the whole issue of the awareness condition could not seriously be described as a 'short point of law', to be grappled with, and determined, on an application for summary judgment. Mr Crowley submits that this is also the case with the present application.
  114. Zurich also relies upon the presumption of inducement. This is addressed in the judgment of Lord Clarke (with whom the other Justices all agreed) in Hayward v Zurich Insurance Co plc [2016] UKSC 48, [2017] AC 142. At [34], Lord Clarke approved the following statement from Chitty on Contracts:
  115. Once it is proved that a false statement was made which is 'material' in the sense that it was likely to induce the contract, and that the representee entered the contract, it is a fair inference of fact (though not an inference of law) that he was influenced by the statement, and the inference is particularly strong where the misrepresentation was fraudulent.
    At [37], Lord Clarke acknowledged that;
    … the authorities seem to me to support the conclusion that it is very difficult to rebut the presumption.
  116. That point was reiterated by Longmore LJ in his leading judgment in BV Nederlandse Industrie van Eiprodukten v Rembrandt Enterprises Inc [2019] EWCA Civ 596, [2020] QB 551 at [43] where he confirmed that:
  117. … there is an evidential presumption of fact (not law) that a representee will have been induced by a fraudulent representation intended to cause him to enter the contract and that the inference will be 'very difficult to rebut'
    (ii) The contract works exclusion
  118. Mr Crowley pointed out that the contract works exclusion has two limbs. First, it excludes loss or damage to 'contract works'. So, as here, once a property is being entirely re-developed, and effectively becomes a building site, then the whole property is 'contract works' and is excluded from buildings reinstatement cover under the policy. Secondly, if the loss or damage to the existing structures is caused by or results from 'contract works', then that is similarly excluded. Zurich relies upon both exclusions. The claimants' alleged loss and damage was 'contract works'; and it was caused by and resulted from the 'contract works'. This is pleaded at paragraphs 76 and 94 of the defence and counterclaim thus:
  119. The Fire
    76. On 29 December 2022, during the course of the contract works, a fire occurred at the Property ('the Fire').
    Mr Crowley observes that this plea plainly includes causation and not just a 'temporal coincidence'.
    94. Without prejudice to the matters pleaded herein, the loss or damage to the contract works and/or the Property was not covered as (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 Property. See the 'Building exclusions' for 'Contract works' on p. 21 of the contract of insurance/Policy.

    Mr Crowley observes that this is a matter of evidence, including expert evidence, which will be exchanged in due course.

  120. Mr Crowley further observes that this limb of the strike out application is truly 'bizarre' as there is no real dispute that the loss and damage were caused by the contract works. This is because:
  121. (1) All the current evidence points to the contract works as the cause of the loss and damage. The property was unoccupied at the time of the fire due to the renovation works being carried out.
    (2) In a preliminary report dated 17 January 2023, the claimants' own loss assessor, Mr Michael Williamson, has accepted that the loss and damage (and the fire) were caused by the contract works.
    (3) The claimants have never alleged any alternative cause of the loss and damage. This is not surprising in light of the current evidence, including their own evidence from their loss assessor.
  122. Mr Mesfin points out that Mr Williamson is a loss adjuster and not a forensic fire investigation expert (unlike Mr John Hughes of Hawkins & Associates, retained by Zurich). I also note that Mr Williamson's report states that "the property sustained fire damage on 29th December 2022, and at the time of issuing this report, the proximate cause is unknown".
  123. (iii) General
  124. Mr Crowley submits that Zurich have drawn a clear distinction between facts that are pleaded and evidence which does not need to be pleaded. Zurich has identified the sources of further evidence (such as the brokers at Giles Gowers and the claimants themselves). Unlike Mr Micawber, Zurich is not simply playing for time in the hope that something will turn up.
  125. Mr Crowley says that, on current evidence, Zurich's defences are in fact highly likely to succeed. The evidence before the court all points one way on the defences. It is noteworthy, and telling, that, in this application, the claimants have not adduced any contrary evidence on the issues that they raise. Mr Netherway's witness statements, and Devonshires's lengthy correspondence, consist of contentions on Zurich's case and unmeritorious, old-fashioned 'pleading points', but no actual contrary evidence on the issues on which the claimants seek strike out and summary judgment.
  126. Drawing together the relevant points from the authorities on striking out and summary judgment which have particular application to this case, Mr Crowley makes the following points:
  127. (1) The defences are not 'fanciful', they do not display an 'absence of reality', and they are not 'inconceivable'.
    (2) Whilst the claimants and Zurich have an initial, neutral statement from Mr Adrian Giles of the claimants' brokers, it can reasonably be expected that more evidence from Giles Gowers will be available by the time of trial.
    (3) Similarly, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to, or alter, the evidence available to a trial judge, and so affect the outcome of the case; for example:
    (a) What communications there were between the claimants and Giles Gowers, especially what questions were asked by Giles Gowers, and what answers were given by Mr Bellhouse, throughout the history of their relationship, especially concerning contract works in existence or in contemplation. This is especially significant now that the claimants are disputing a key telephone call with Giles Gowers on 29 April 2022; and
    (b) Zurich have been chasing the claimants for evidence of their intentions in respect of the contract works. Further evidence is likely to be available at trial which needs to be tested. Reference is made to Mr Annesley's 3rd witness statement at paragraphs 6.2, and 15-16.
    (4) The judgment of Warby J in HRH The Duchess of Sussex v Associated Newspapers Ltd applies word for word here.
    (5) Even within the very narrow scope of this application, there are disputed issues that can only be resolved at trial, such as:
    (a) whether there was a second call with Giles Gowers on 29 April 2022;
    (b) the claimants now appear to dispute that a call took place between Mr Duddle and Mr Davison at around 12.15pm on 3 May 2025;
    (c) the claimants dispute the time of the inception of the Policy. Zurich say that this was at 16.16 on 9 May 2022 at 16.16, whilst the claimants contend that it was earlier that day; and
    (d) the claimants now appear to dispute that the loss and damage were caused by the contract works.
    (6) The issues raised on these applications overlap with the issues the court will still have to resolve at trial in any event. They also concern the claimants' credibility.
  128. Turning to issues of pleading, Mr Crowley submits that Zurich have complied with both the rules and the guidance on pleading misrepresentation and fraud. Zurich's statements of case are clear on what the misrepresentation was, and why it was false and untrue.
  129. The claimants' lengthy correspondence, and this application, are said to be the product of a fundamental misunderstanding, and confusion, about the purpose of statements of case, as opposed to the disclosure that will be given, and the evidence that will be exchanged, on the issues identified by those statements of case. This is said to be exemplified by Mr Netherway's 3rd witness statement (at paragraph 12) where he says that the telephone call between Mr Duddle and Mr Davison on 3 May 2022 at about 12.15pm is not pleaded. But it does not need to be. Zurich does not need to plead every telephone call or document in the case. These are background facts and matters of evidence. Disclosure, and evidence, on such issues will be produced, and exchanged, in the ordinary way, and in accordance with the court's case management directions.
  130. Mr Crowley's primary submission is that no amendments are required to Zurich's pleadings. In the course of his oral submissions, however, Mr Crowley indicated that should the court consider that any amendments are required to Zurich's statements of case, he would wish to be given the opportunity to frame them.
  131. (iv) Other compelling reason for trial
  132. Mr Crowley points out that even if it were to succeed, the claimants' application would not resolve this claim as there are numerous matters to be determined at trial, such as:
  133. (1) The claimants' breach of the 'concealment of fraud' condition precedent.
    (2) The claimants' breach of the common law rules against false statements in the claims process.
    (3) Zurich's rights and remedies under s.12 of the Insurance Act 2015 in respect of fraudulent claims.
    (4) The claimants' suppression of a coverage defence.
    (5) The claimants' breach of the 'Important Notes' and 'Accuracy of Information' general policy conditions by failing to notify Zurich as soon as possible if the answer 'No' to the contract works question ever changed after May 2022.
    (6) The claimants' breach of the 'co-operation after a loss' condition.
  134. Mr Crowley submits that the matters the claimants seek to strike out also overlap with, and are relevant to, these issues, and so will still be issues to be determined at trial in any event. Likewise, the matters sought to be struck out are also relevant to the claimants' credibility; and the claimants will be cross-examined on the misrepresentation at trial in any event.
  135. Finally, even if, contrary to Zurich's submissions, the claimants' application is successful, the paragraphs in Zurich's statements of case referred to in the application should not be struck out as, for the reasons given above, many of them overlap with and are still relevant to the issues at trial. A further illustration of the hopeless nature of the application is that the claimants are seeking to strike out paragraphs which they (partially) admit.
  136. For all these reasons, the claimants' strike out and summary judgment application should be dismissed, with costs to be summarily assessed on the indemnity basis.
  137. VIII: Analysis and conclusions

  138. I first address the misrepresentation defence.
  139. On the evidence presented to this court, I am satisfied that Zurich has demonstrated an arguable defence to this claim on the grounds of misrepresentation. As explained at paragraph 62 above, in very brief summary, Zurich's case is that, in May 2022, the claimants made a deliberate or reckless (or careless) qualifying misrepresentation by falsely answering the contract works question. The claimants expressly confirmed, endorsed and adopted the question and answer in the SOI that the property was not likely to undergo any contract works within the next 12 months; and they instructed Giles Gowers to secure insurance on that basis (which they did). The claimants did then, in fact, carry out contract works to their home; and these caused loss and damage to that property, on 29 December 2022, when a fire occurred during the course of the contract works. Without the misrepresentation, Zurich would not have entered into the contract of insurance with the claimants at all. Zurich has now avoided the policy. In my judgment, Zurich has a real prospect of succeeding on that defence.
  140. It is now clear that it was Zurich, and not the claimants, or their brokers, who supplied the answer 'No' to the contract works question in the SOI. How then was any representation made by the claimants to Zurich? And how can Zurich claim to have relied on an answer that they themselves gave to a standard-form question that they themselves had posed? Clearly, these two questions are closely related.
  141. Zurich's answer is as follows: Following their conversation in the early afternoon of 3 May, Mr Duddle assumed that Mr Davison had questioned Mr Bellhouse about any contract works. Mr Duddle made this assumption because he was aware that Mr Davison well knew that Zurich would not write new business where contract works were involved or contemplated. Since Mr Davison had made no mention of any works to the property during their telephone conversation, Mr Duddle made the assumption that no such works were being undertaken or planned within the next 12 months. He therefore answered 'No' to the contract works question on the SOI; and he generated an insurance quotation and policy documentation accordingly. Had Mr Duddle understood the answer to the contract works question on the SOI to have been 'Yes', then Mr Duddle would not have done this. Mr Duddle then emailed the quotation, the SOI, and the other policy documentation to Mr Davison on 3 May 2022, at around 12.35pm. He did so in the belief that Giles Gowers would check the questions and answers with the claimants, as their customers. Up to this point, I am prepared to accept that this is a case of passive non-disclosure, and not of active misrepresentation.
  142. Mr Duddle's belief that Mr Davison would discuss the answer to the contract works question with his client was well-founded: Mr Davison did discuss this with Mr Bellhouse over the telephone early on the afternoon of 9 May, as acknowledged by the claimants at paragraph 91.3 of the claimants' reply and defence to counterclaim (cited at paragraph 67 above). One realistic analysis of that conversation is that Mr Bellhouse, for himself and his wife, thereby confirmed, endorsed, and adopted the answer 'No' to the contract works question in the SOI. But at that precise point in time, this was not communicated to Zurich. However, that position arguably changed shortly thereafter.
  143. Later that afternoon, by email to Giles Gowers, timed at 14.39, Mr Bellhouse instructed them "to progress with this Zurich policy". One realistic analysis is that the claimants thereby instructed Giles Gowers, impliedly if not expressly, to place the insurance with Zurich on the basis that the answer to the contract works question in the SOI was 'No'. This Mr Murphy proceeded to do, by calling Zurich, speaking to Mr Field, and placing the insurance on the basis of the documents that Zurich had already provided, including the SOI. By this means, any misrepresentation contained within the answer 'No' to the contract works question, previously confirmed, endorsed, and adopted by the claimants, was communicated to Zurich. Zurich thereby relied upon that answer by proceeding, and so was induced, to issue the home insurance policy to the claimants, with a revised quotation, and to incept the household and contents cover. As Mr Field explains (at paragraphs 22 and 25 of his witness statement):
  144. If Neil [Murphy] had told me that there was a change to the quote Statement of Insurance that had been sent out to Giles Gowers and on to Mr Bellhouse such that the contract works question was to be answered 'yes' then I would not have bound the risk … On the basis that Neil asked me to go ahead and bind the policy and did not confirm any other changes, I issued the Statement of Insurance and bound cover.
    By their own brokers' conduct, in compliance with their instructions, the claimants impliedly represented that the property was not likely to undergo any contract works within the following 12 months. Looking at what was said and done, and its likely effect upon Zurich, in my judgment Zurich can maintain an arguable defence that there was a qualifying misrepresentation, which was communicated to Zurich, and upon which it relied when incepting insurance cover for the house and its contents. That defence is not fanciful; and it has an air of reality about it.
  145. In my judgment there is no legal impediment to such an analysis of the evidence in this case. I agree with Mr Crowley that Parallel Media LLC v Chamberlain should not be treated as authority for the proposition that, as a matter of law, there can be no representation where an insured confirms and adopts a statement previously drafted by an insurer. I agree with the criticisms directed to that decision at paragraph 4.75 of The Law of Rescission (cited at paragraph 73 above). In my judgment, whether or not the adoption of such a statement constitutes a representation or a warranty is a question of fact, rather than law. Its characterisation as a representation or as a warranty will depend upon the character and terms of the confirmation and adoption. That is a matter of evidence for trial. Any rigid, and invariable, characterisation of such a statement as a warranty would run counter to the "wide and flexible approach to the issue of what amounts to a misrepresentation" that was advocated by the Law Commission at paragraph 5.50 of their Report. If the purported representor promises or warrants that the statement is true, it may become a contractual warranty (unless that conclusion is inconsistent with other contractual terms). But if the purported representor simply states, adopts, represents, or repeats the relevant statement, then it should be treated as a statement of fact, and therefore a representation. If the deputy judge intended to formulate a principle of law of general application, rather than reaching a decision on the particular facts and documents in the case before him, then I would decline to follow that part of his reasoning and decision.
  146. I would accept the conclusion of Cockerill J in Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd (cited at paragraphs 56-58 above) that the complainant must have been aware of the relevant representation before it can claim to have been induced to act in reliance upon it:
  147. … the law does require that a representation (however made) is received by the representee and that to satisfy the requirements of reliance the representee must be aware of it/have it actively present to their mind when they act on it.
    However, for the reasons I have given, I am satisfied that Zurich's case that this requirement is satisfied on the evidence in this case has an air of reality about it; and that it stands a real prospect of success for the purposes of an application for strike out and summary judgment.
  148. For the sake of completeness, I should record that I find it unnecessary to venture any opinion on the potential application of s. 2 (3) of CIDRA on the evidence presently before this court. That is because Zurich does not need to rely upon that provision to establish any defence of misrepresentation. I would not necessarily dissent from Mr Crowley's submission that the phrase 'particulars previously given' is not necessarily limited to particulars given by the insured. But it seems to me that it is implicit in the sub-section that the insurer's request must relate to particulars previously given to the insurer. On the chronology of events in the present case, and bearing in mind that the insurance policy was incepted before, or contemporaneously with, Mr Field's email to Giles Gowers, timed at 16.16 on 9 May, Zurich may find it difficult to identify any pre-inception request to confirm or amend any particulars previously given to it. But, if properly pleaded, that is a matter for trial.
  149. The difficulty Mr Crowley has to face, however, is that, in my judgment, it is impossible to draw out, and identify, this way of putting Zurich's case on misrepresentation from any of its statements of case. Whilst preparing this judgment, I have read, and re-read, Zurich's pleadings. I am afraid that I find them to be overly long, rambling, and digressive. Rather than focussing upon the facts essential to establish Zurich's grounds of defence, they are full of irrelevancies, and matters of background facts and evidence. They are the very antithesis of the paradigm urged upon pleaders by Leggatt J in Tchenguiz v Grant Thornton (cited at paragraph 19 above); they are not concise, nor do they confine themselves only to the material facts. I agree with Mr Mesfin's criticism that it is impossible to distil from Zurich's pleadings precisely how the qualifying misrepresentation was communicated to Zurich, or (if and when it was) exactly how, and in what way, anyone, and if so who, at Zurich relied upon it. An unkind, or cynical, reader of Zurich's statements of case might be tempted to conclude that their very complexity and length were intended to conceal the lack of essential substance at their very heart.
  150. I accept Mr Mesfin's submission that a properly pleaded claim for misrepresentation must allege that, and explain how:
  151. (1) a representation was made by or on behalf of the claimants; and
    (2) Zurich saw, considered, and relied upon that representation when it entered into the policy of insurance, and incepted cover for the property and its contents.
    Absent such allegations, I consider that any claim in misrepresentation is not properly pleaded, and, to that extent, has no real prospect of success. In my judgment, despite (or perhaps because) of their inordinate length, such allegations are conspicuously absent from Zurich's present pleadings.
  152. Although the authority was not cited to me, I bear in mind the observations of Mummery LJ in Boake Allen Ltd v Revenue and Customs Commissioners [2006] EWCA Civ 25, [2006] STC 606 at [131]:
  153. While it is good sense not to be pernickety about pleadings, the basic requirement that material facts should be pleaded is there for a good reason - so that the other side can respond to the pleaded case by way of admission or denial of facts, thereby defining the issues for decision for the benefit of the parties and the court. Proper pleading of the material facts is essential for the orderly progress of the case and for its sound determination. The definition of the issues has an impact on such important matters as disclosure of relevant documents and the relevant oral evidence to be adduced at trial. In my view, the fact that the nature of the grievance may be obvious to the respondent or that the respondent can ask for further information to be supplied by the claimant are not normally valid excuses for a claimant's failure to formulate and serve a properly pleaded case setting out the material facts in support of the cause of action.
    These observations have been cited with approval at the level of the Court of Appeal in subsequent cases, most recently in Axa Sun Life plc v Inland Revenue Commissioners [2024] EWCA Civ 1430, [2025] 1 WLR 2179 at [90].
  154. Mr Crowley's primary submission is that no amendments are required to Zurich's pleadings. In the course of his oral submissions, however, Mr Crowley indicated that, should the court consider that any amendments are required to Zurich's statements of case, he would wish to be afforded the opportunity of making them. I do consider that substantial clarification, and amplification, of Zurich's case is required. The claimants need to know the particular facts and matters upon which Zurich advances the essential elements of its defence, so that the claimants can identify, and seek to address, them, focussing upon the matters relevant to that defence. At present, this exercise is entirely obscured by the turgid nature of Zurich's statements of case, which only serve to divert the claimants' attention away from essential elements of Zurich's true defence. I will need to consider how Zurich's lack of due pleading should affect the outcome of the present application once I have addressed the other relevant limb of Zurich's defence.
  155. So I move on to the contract works exclusion. So far as concerns the first limb, which excludes cover for the 'contract works' themselves, I am satisfied that this has no real prospect of success and falls to be struck out, with summary judgment being entered against Zurich on this alleged ground of defence. I accept Mr Mesfin's submissions on this issue, as recorded at paragraphs 47-48 above. The contention that once the claimants started to carry out their works to the house, the whole property fell to be treated as 'contract works' is wrong, both as a matter of the true construction of the exclusion (and thus of law), and also on the facts as pleaded. First, as to the law, 'contract works' are defined as 'any work to your home or outbuildings including alteration, construction, demolition, renovation, repair, restoration or other similar work'. 'Contract works' are works carried out to the house. They are not the house itself. Otherwise, the second limb of this exclusion would be entirely unnecessary, otiose, and redundant. The physical house is separate from the 'contract works'. Secondly, and in any event, on the facts as pleaded at paragraph 40 of Zurich's defence and counterclaim, the claimants were carrying out works to only parts of their house and not constructing an entirely new house. Contrary to the assertion at paragraph 79 of Mr Crowley's skeleton argument, on Zurich's pleaded case, the property was not being 'entirely re-developed'.
  156. I therefore turn to consider Zurich's pleaded reliance upon the second limb of the exclusion: that the reinstatement claim is for 'loss or damage … caused by or resulting from contract works'. In my judgment, neither paragraph 76 nor paragraph 94 of Zurich's defence and counterclaim is sufficiently fully and properly pleaded to raise the contract works exclusion as an arguably valid defence to the claimants' reinstatement claim. Unless amended, this part of the defence would also fall to be struck out, and summary judgment entered against Zurich on this issue.
  157. First, as to paragraph 76, as a matter of its true construction, I am entirely satisfied that this does not plead that the loss or damage to the house was caused by, or resulted from, the contract works. All it does is to plead that the fire occurred "during the course of the contract works". I reject, as wholly unsustainable, Mr Crowley's submission that this plea plainly includes causation, and not just a 'temporal coincidence'. I have no hesitation in accepting Mr Mesfin's submissions to the contrary. A temporal coincidence is all that Zurich pleads in paragraph 76. That is insufficient. Zurich needs to plead that loss or damage to the property was caused by, or resulted from, the contract works; and to give full and proper particulars as to how this came about. These omissions may readily be capable of being cured by Zurich; and it is surprising that Zurich have not already sought to do so. After all, it has been a persistent complaint from the claimants' solicitors that Zurich has in its possession, but has refrained from disclosing, a report from an expert forensic fire investigator into the cause(s) of the fire at the property.
  158. Secondly, as to paragraph 94, I have already ruled that the reference to loss or damage to the contract works themselves is unsustainable, as a matter both of law and of fact. The words 'contract works and/or' fall to be struck out in consequence. As to the remainder of this paragraph, in my judgment the present pleading is insufficiently particularised to raise a triable issue with any real prospect of success. The paragraph consists of no more than bare assertions, containing no supporting particulars of Zurich's case as to precisely how either (1) the estimated cost of the contract works exceeded 20% of the buildings sum insured, or (2) the contract works altered the square footage of the house. These are not simply matters for evidence, to be provided when witness statements and expert reports are exchanged in due course. The claimants need to know the case they have to answer on these matters, so that they can seek to address this in their own witness statements and expert evidence. The latter omission may readily be cured by the simple addition of a reference back to paragraph 40 of Zurich's defence and counterclaim, describing the nature of the works that the claimants had been carrying out to their house. The former omission should also be capable of short particularisation to the best of Zurich's present knowledge and belief.
  159. The question therefore arises: what should the court do where it is satisfied that the defence which is the subject of an application for strike out and summary judgment may have real prospects of success but at present is inadequately pleaded. The answer, foreshadowed by my observations at paragraph 21 above, is to give Zurich the opportunity of curing the defects and omissions in its pleaded case. Towards the end of his oral submissions, albeit very much as a fallback position, Mr Crowley invited me to take that course.
  160. I am satisfied that I should afford Mr Crowley the opportunity of addressing the deficiencies in Zurich's present pleadings. Faced with an existing turgid defence and counterclaim, which has inevitably engendered a lengthy, and necessarily discursive, reply and defence to counterclaim from the claimants in response, I am reluctant to afford Zurich any opportunity to add to the length of its existing pleadings, with the attendant risk of further obscuring the true nature of its defence. In my judgment, and in the exercise of my discretionary powers of case management, the appropriate course is to direct that, if and to the extent that Zurich intends to maintain these defences, it shall file short particulars, briefly setting out its case on the misrepresentation and contract works exclusion defences. This document should:
  161. (1) Explain precisely how the qualifying misrepresentation was communicated to Zurich, and (if and when it was) exactly how, and in what way, anyone, and if so who, at Zurich relied upon it.
    (2) Plead that the loss or damage to the house was caused by or resulted from the contract works, with full and proper particulars as to how this came about.
    (3) Set out Zurich'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.
    This document should 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, and without foot-notes and annexures. I have succeeded in summarising my understanding of Zurich's case on the misrepresentation defence, together with references to the evidence relied on in support, in only some four pages (at paragraphs 95-99 above) so I am satisfied that this can realistically be achieved. I will give permission to the claimants to apply back to me when this has been done should they seek any further directions in response.
  162. For the sake of completeness, I should make it clear that had I been minded to conclude that Zurich had no real prospect of succeeding on either (or both) the misrepresentation or the contract works exclusion defences, I would not have found this to be one of those vanishingly rare cases where the court should nevertheless conclude that those issues should be disposed of at a trial. On this aspect of the case, I would have preferred, and accepted, the cogent submissions of Mr Mesfin over the competing submissions of Mr Crowley. For the reasons advanced by Mr Mesfin, I would have found there would have been sufficient factual, and also temporal, separation between those two issues and Zurich's remaining defences; and sufficient case management and litigation advantage in securing a speedy resolution of those two issues to have warranted their summary disposal.
  163. IX: Disposal

  164. For the reasons stated above, I dismiss the claimants' application to strike out Zurich's misrepresentation defence, and its reliance upon the second limb of the contract works exclusion, and to give summary judgment in relation thereto, conditional upon Zurich providing further particulars of those defences in the manner I have outlined above. I do, however, strike out Zurich's pleaded reliance upon the first limb of the contract works exclusion, and give summary judgment against it on that issue.
  165. I invite the parties to seek to agree a substantive order to give effect to this judgment. This should include provision as to the costs of and incidental to this application. 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.
  166. If the parties cannot agree upon a suitable form of order, they should provide a draft composite order, containing their alternative provisions, together with brief written submissions on the outstanding consequential matters. This should be no longer than is strictly necessary, and, in any event, no longer than five pages in length, employing a font size of no less than 12 points, and without foot-notes and annexures. Unless I direct otherwise, I will proceed to determine the outstanding matters on paper.
  167. I propose formally to hand down this judgment remotely at 10.00 am on Wednesday 18 June 2025. No attendance is required. I will extend the time for appealing to 28 days after formal hand down (i.e. to 4.00 pm on 16 July 2025). I direct that written submissions in support of any application for permission to appeal, with concise draft grounds of appeal, are to be filed and served within 7 days after hand down (i.e. by 4.00 pm on 25 June 2025). Unless I direct otherwise, I will determine any such application on paper.
  168. I conclude by reiterating my thanks to both counsel (and their respective solicitors) for their considerable assistance in facilitating the disposal of this application.
  169. That concludes this reserved judgment.

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