LM-2024-000066 - [2025] EWHC 1416 (Comm)

Fecha: 18-Jun-2025

II: The litigation

II: The litigation

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.

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.

Zurich opposes the application. It relies upon witness statements, all dated 28 March 2025, from:

(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’.

There is a responsive witness statement from Mr Netherway (his third) dated 11 April 2025.

There is no witness evidence from either of the claimants, or from Mr Colin Davison or Mr Neil Murphy (both of Giles Gowers).

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.

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 ¼ 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.