I’ve previously advised that as a consultant for Rees Clayton Solicitors Limited I had the fortunate opportunity to attend the Court of Appeal hearing of Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435. I was sitting behind counsel for the claimant/respondent.
The Judgment has been handed (albeit, not yet on bailii or National Archive) and I have been provided with a copy (see below).
UPDATE the Judgment is now on bailii and National Archives.
Background
The matter was a second appeal following an initial strike out of the claimant’s claim. Those who conduct personal injury litigation for claimants will be familiar with the issuing of a protective claim form and then, taking steps to prepare the particulars of claim and serving the substantive proceedings upon the defendant.
In this particular case, the defendant driver was a Polish lorry insured by a Polish insurer. That insurer had admitted liability. They did so through their claims handlers InterEurope AG European Law Service.
Unfortunately, the claims handler responsible at the time issued proceedings against InterEurope instead of the actual defendant. They cited the European Communities (Rights Against Injuries) Regulations 2002. This meant that the claim was filed against the wrong party (not the insurer), and the cause of action referenced legislation that allowed a claimant to pursue a claim directly against both the insurer and a motor insurer in the UK. Since the insurer was Polish, this constituted the incorrect cause of action.
A Defence was filed to argue that the defendant was the incorrect Defendant, and the cause of action was also not applicable in the matter. An application was made to substitute Powszechny Zaklad Ubezpieczen (‘PZU’), but it did not seek to change the cause of action.
Defendant’s application to strike out
On 10th March 2022, DDJ Pithouse heard the defendant’s application to strike out the claim. By the time of the hearing, PZU had substituted in as the correct Defendant. The Claimant was represented by Jake Rowley of Counsel and within his skeleton argument (quoted in the Court of Appeal decision, Jake submitted the following:-
16. Where a statement of case is found to be defective, the Court should consider whether that defect might be cured by amendment and, if it might be, the Court should refrain from striking it out without first giving the party concerned an opportunity to amend (see: In Soo Kim v Youg [2011] EWHC 1781 (QB)).
17. Given PZU are now the Defendant, the claim is capable of amendment to cure the defect, that is because:
a) Pursuant to Article 18 of Council Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) a direct right of action against an insurer defendant is granted if the law applicable to the non-contractual obligation or the law applicable to the relevant contract of insurance so provides. The provisions of Rome II in relation to non-contractual obligations are retained EU Law by virtue of the operation of regulation 6 of The Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008 as amended by The Law Applicable to Contractual and Non-Contractual Obligations (Amendment etc.)(EU Exit) Regulations 2019. As such Rome II applies to claims brought within the jurisdiction of England & Wales whether the claim was instituted before or after 31st December 2020; and
b) Poland is an EU Member State and is bound by the terms of the Sixth Motor Insurance Directive (2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability). Pursuant to Article 18 of the 2009 Directive each Member State is required to permit a direct right of action against an insurer in respect of the civil liability of their insured. The overwhelming likelihood is that the law of Poland permits direct actions against liability insurers in the circumstances of this accident.
Jake’s reference to In Soo Kim v Youg (sometimes referred to as Kim v Park) was to the following paragraph:-
40. However, where the court holds that there is a defect in a pleading, it it normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right
At this point, no application had been made by the Claimant to amend the cause of action. Jake went on to say:-
18. C can make, and ought to be permitted to make, whatever further application is necessary/required in order to amend the PoC in order to rectify the issue, given it is capable of rectification. All the ‘building blocks’ of the case are present, it simply needs to be formulated in an amended way. Strike out would be disproportionate and unjust. If so minded, the Court can order that the making of such an application has to be within a certain period of time, failing which the claim will be automatically struck out. An unless order of that sort would be more appropriate.
DDJ Pithouse gave a very short judgment, of which paragraphs 1, 8-13 were quoted in the Court of Appeal’s judgment. Essentially, the Judge made the following points:-
- He was of the view that he could not be satisfied there would be sufficient pleadings that would overcome the requirements I would strike out the claim.
- He pointed out that he would always be reluctant to take away the rights of an individual who may well be entitled to some form of compensation
- he recognised that counsel for the claimant had quite properly to set out what would need to be done but also recognised that these steps had not been taken.
- That would be consideration of the limitation act in respect of any application to amend given that limitation had passed.
- He reiterated that two months have been made since the defendant’s application to strike out was issued with no application to amend, without further delay if another application is made to amend the proceedings.
- He referred to a substitution of one pot of gold to another (the other being a claim for loss of chance by the claimant against her solicitors.
Claimant’s appeal to His Honour Judge Parker
The Claimant sought permission to appeal from a Circuit Judge and the first appeal was heard by HHJ Parker. The Court of Appeal characterised Judge Parker’s ex tempore judgment as an impressive and well-reasoned explanation for his decision to set aside the DDJ’s strike out order.
Judge Parker noted that it was argued before DDJ Pithouse that the defect in the claimant’s case could be remedied as outlined in Jake’s skeleton argument. Regarding the Limitation Act, he acknowledged that foreign law is a factual matter but stated he need not decide on it since the DDJ had not. He expressed an opinion that the cause of action stemmed from substantially the same facts and that the Limitation Act would not prevent an amendment.
Judge Parker also pointed out pointed out that the DDJ failed to consider if striking out the claim was a proportionate response to the Claimant’s shortcomings and referenced Kim v Youg, which suggests allowing a party the opportunity to rectify issues. He also noted the absence of an unless order.
Judge Parker examined the relevant factors himself. He acknowledged that the defect had been clearly flagged to the claimant and criticised the claimant’s legal advisors for their inadequate articulation, which caused delays. He recognised that the first strike-out application by InterEurope had not yet been before the court and that there was only a two-month gap between PZU’s strike-out application in January 2022 and the hearing before DDJ Pithouse in March 2022.
It was clear that the defendant was not arguing the cause of action proposed was insufficient, but that the claimant had failed to specify it. Judge Parker found that PZU’s status as a Polish insurer, it likely understood the claimant’s intentions to remedy the defect. The defendant was not prejudiced by the delay, having already addressed the claim’s merits, and would only need to provide evidence on Polish law, where any delay would be inconsequential.
The matter was to be listed to hear the Claimant’s application to amend the cause of action (which had been issued prior to the hearing before Judge Parker).
Defendant’s appeal to the Court of Appeal
The Defendant sought permission to appeal from the Court of Appeal, which was granted.
They argued that Judge Parker erred in law by finding that DDJ Pithouse misapplied discretion in striking out the claimant’s claim. They said he incorrectly stated that this was the first time the claim had occupied court time and that DDJ Pithouse failed to consider the claimant’s failings, proportionality, and the possibility of allowing the claimant to rectify the issues. Additionally, they said that Judge Parker did not acknowledge that the claimant had not applied to amend the cause of action, going onto improperly substituted his own conclusions regarding the defendant’s strike-out application in place of DDJ Pithouse’s conclusion.
They also argued that Judge Parker incorrectly found that there was sufficient intention before DDJ Pithouse to amend the cause of action, said that Judge Parker did not assess whether the claimant had a real or financial prospect of getting permission to amend the cause of action and overlooked the lack of evidence in how the claimant could remedy the claim.
During the hearing, which can be viewed on YouTube, the defendant argued that without specifying the relevant Polish legislation to DDJ Pithouse, he could not determine whether there was any realistic chance of the claimant succeeding in an application to amend the Particulars of Claim. The defendant asserted that, at the very least, the specific provision should have been outlined; at most, expert evidence should have been presented. This is because Polish law, while a factual matter, falls outside the court’s area of expertise and would require expert evidence to establish whether Polish law permits a direct cause of action against the insurer by a third-party motorist.
The defendant went on to say that Judge Parker was wrong to intervene and substitute his own conclusion because DDJ Pithouse’s decision was within his ambit given the circumstances and evidence before him. The defendant contended that DDJ Pithouse had all the relevant factors in mind when deciding to strike out. The Appeal Judges did question how likely it would be that Poland, who was a member state of the EU and was required to make Rome II domestic law in Poland (as per Jake’s skeleton argument before DDJ Pithouse).
In particular, one Judge queried how as a Polish insurer, upon being notified about the contents of Jake’s skeleton argument wouldn’t have reverted to the Solicitors to advise if it was wrong that there was Polish legislation that allowed direct cause of action against a polish insurer. The defendant argued that DDJ Pithouse was not bound to take the low bar of inferring that there could be such Polish legislation when determining the defendant’s strike out application. The Appeal Judges were very clear that rather than keeping quite and surprising the claimant at trial the defendant quite rightly set this out clearly in their defence. The Appeal Judges then went on to say that what the Defence does not do is say that they could never be a Defendant in the action. Therefore, when the matter came before DDJ Pithouse, it must have been the case that he would have had to consider whether for all intents and purposes, the remedy was likely to be technical because otherwise, the defendant would have argued that it could never be remedied. Quite fairly, the defendant pointed out that Jake’s skeleton argument was prepared the day before the hearing and it would not have be easy to obtain such instructions.
With respect to the absence of intention of the claimant to make an application, the Appeal Judges questioned whether the request for an unless Order was in fact the evidence/element of intention, because if such an application was not made then it would be struck out. The defendant pointed out that it never expressly stated within Jake’s skeleton argument that the claimant would make an application, but that it could. The defendant argued that the unless order was nothing more than providing the claimant with more time to consider applying, it should not be inferred as intent.
The defendant, therefore, argued that Judge Parker was wrong to intervene with DDJ Pithouse’s decision and substitute his own conclusion.
In response, the claimant maintained that DDJ Pithouse was wrong and, did not give full adequate consideration. Further, the claimant said he was wrong to find that the proceedings could not be amended (and endorsing Judge Parker’s determination). It was argued that it was clear that in writing and orally that the claimant had said, I will amend this and give me a date to do so.
An interest point made in the claimant’s oral submission was this proposition:-
“…at the very start of all this there is Miss Alton driving her car on a motorway. She’s an innocent victim in all this. She presents her claim to, what has always been, a Polish insurer, and she says to the Polish insurer, ‘Look, this is not right. You crashed into me. I’ve suffered a very modest loss. Will you compensate me for this?’. At no point do they write back and say, ‘Aha. I’m not liable for that. I’m not liable for that because, unbeknownst to you, in Poland, there is no direct right cause of action. We didn’t adhere to these various EU directives. Bad luck.’ It is absurd to propose that they wouldn’t know that. They are Polish insures. All they do is insure Polish vehicles in relation to road traffic matters. So not only has the point never been made in argument before, the appellant is essentially holding up a false defence. There has never been and there could be [that defence].”
The claimant also submitted that DDJ Pithouse did not properly take into account or evaluate the consequences if the Claim was stuck out, especially in the light of the modest value and the pre-action admission of liability. In respect of the possibility of expert evidence, the claimant argued that if it was required in every case, the low value RTA rules would have included an express provision for the recovery of such a disbursement. This was a point that the Appeal Judges seemed to indicate that expert evidence would only be necessary if the defendant did not admit that the particular law applied.
(Please note, these are only a few brief points and I encourage those who are interested to watch the appeal. It was really riveting to hear both arguments).
Judgment
The Court of Appeal handed down its judgment on the 22nd November 2024 dismissing the defendant’s appeal.
The Court of Appeal, was of the view that Deputy District Judge Pithouse did have sufficient material before him that indicated that an application to amend the cause of action was not only arguable but likely to succeed. This was on the basis that Poland was obligated to implement the Sixth Motor Directive in its domestic law, and the defendant’s conduct supported this.
They noted that Jake’s skeleton argument clearly outlined the direct claim, and the defendant, as a Polish motor insurer, would have known this. They found that DDJ Pithouse should have inferred that there was unlikely to be an issue regarding the direct claim under Polish law. Additionally, the defendant’s position was that the pleading defect could be cured, rather than asserting it could not. They were not satisfied that the claimant needed to spell out the specific provision to get over the threshold.
With respect to the proposition of requiring expert evidence (which of course was the proposed higher bar that the claimant needed to meet), Popplewell LJ said the following:-
30. As to expert evidence, that is a matter of proof, not pleading, and although foreign law is a question of fact, which, subject to a number of exceptions, has to be proved by evidence, it is by no means necessary in every case for a party to adduce such expert evidence when applying to amend a pleading. Only if there is likely to be an issue as to whether the party seeking to rely on foreign law can surmount the threshold of arguability necessary to support an amendment will it be appropriate to embark upon an evidential inquiry with foreign expert reports at that stage. This was obviously not such a case.
The other question was whether the claimant’s application could succeed given that an amendment would happen after the expiration of limitation and s35 Limitation Act 1980/CPR 17.4 would require a new cause of action or amendment to arise out of substantially the same facts. Popplewell LJ said:-
31. There remains the question whether an amendment would fall foul of s. 35 of the Limitation Act 1980 or whether the new cause of action arises out of the same or substantially the same facts, which we have to address by reference to the procedural position which has arisen. The Judge held that the DDJ had not decided that question, and there is no appeal from that aspect of his decision. It was treated, therefore, by the DDJ and the Judge, as an arguable point of law which did not fall for decision on the strike out application, although as I have said, the Judge went on to express his view that the new cause of action did arise out of the same or substantially the same facts so that the Limitation Act would form no hindrance to the amendment. If so treated as an arguable point of law, it does nothing to undermine the conclusion that the DDJ ought to have held that the defect could be cured by a pleading with a real prospect of success.
32. My provisional view is that the Judge’s obiter conclusion is correct and that the amended claim arises out of the same or substantially the same facts. It is well established that a claim can arise out of the same or substantially the same facts even if it depends upon a new fact: Mulalley v Martlet Homes Ltd [2022] EWCA Civ 32. Although foreign law is a question of fact, it has been treated as a special kind of question of fact, and one on which findings are to be treated differently from other findings of fact: see for example Bumper Development Corporation v Commissioner of Police for the Metropolis [1991] 1 W.L.R. 1362 at 1370 per Purchas LJ. It is, in substance, part of the identification of the legal, rather than factual, basis for a claim. A change in the legal basis of a claim can be made without offending against either the letter or the spirit of what is precluded by s. 35 of the Act and CPR part 17.4(2), the main purpose of which is to avoid placing a defendant in the position where if the amendment is allowed it will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which it could reasonably be assumed to have investigated for the purpose of defending the unamended claim: Goode v Martin[2001] 3 All ER 562. In this case no new investigation would be required of PZU at all, since it can be taken to be familiar with the relevant position in Polish law. Moreover, if it should be confirmed at the amendment hearing that there is no issue about it (on which PZU will have to make its position clear), so that the (foreign) legal basis of the claim were undisputed, it would be quite contrary to the purpose of s. 35 of the Act and CPR 17.4(2) if the introduction of that undisputed “fact” alone were sufficient to require the claim to be treated as arising out of facts which were substantially different.
33. However, this appeal is not about limitation, and we received no argument on the point,which will be for the County Court to determine if necessary, taking into account not only the points to which I have referred but all the arguments which PZU and Ms Alton choose to advance. I have only expressed my provisional view because it may help the parties to avoid wasting further costs where, subject to this point, liability is unlikely to be in issue, the personal injuries are evidenced by medical reports, and the amount claimed is modest in comparison to the costs which may be incurred in further procedural disputes. My conclusion about the DDJ’s first error, is not, however, dependent on these provisional views about limitation.
Poppenwell LJ found that DDJ Pithouse did not appropriately balance the prejudice of the claimant and defendant properly and that there was no evaluation of those factors. He found that on balance, the prejudice strongly favoured dismissing the strike out. He therefore found that Judge Park was correct to interfere with DDJ Pithouse’s decision and make his own fresh conclusions of the application.
Commentary
The key takeaway from this judgment is that the initial approach to the strike-out application should have involved a thorough evaluation of all factors, leading to the conclusion that an unless order was appropriate. In some cases, a proper assessment could yield a different result, particularly if the issue has been presented to the court before.
Many applications from defendants typically include two arguments: a strike-out application or an unless order. Swain v Hillman was referred to at the Court of Appeal hearing. It is the test usually used to establish whether someone has a real rather than fanciful prospect of success (to determine a summary judgment or to set aside default judgment).
I can see why the Court of Appeal and Judge Parker were of the view that the claimant only needed to show that it was more likely than not that there was a way to remedy the defect. This was a specific technical point. An amendment to a cause of action may not be remedied, and if the other party wishes to pursue it, they may need to present evidence to support their claim.
The title of this post includes the phrase “and the accompanying satellite litigation’. This is in respect of what Poppenwell LJ said at paragraph 33. It was his view that the parties should come together and avoid a further hearing to determine the claimants actual application to amend the particulars of claim. He noted that liability was admitted. He noted that it was a modest claim, and he indicated (and it was not a point raised on appeal, so he gave it purely to assist the parties) that such an application would likely succeed and that it would be in the party’s best interest to save costs and court resources of proceeding to a hearing.
It is like the time I had to assist as a consultant on a case where a junior solicitor received a file from another law firm and forgot to issue a protective claim form. It was received by the court (i.e. date deemed to have been brought) 5 days after limitation. Quite literally, I reached out to both Defendants and reitterated that the s11 Limitation defence was exactly that, a defence they were entitled to rely on. They did not have to and their clients could take the proportionate view not to raise it. Either they failed to understand or chose not to but both told me that the claims were ‘statute barred’ and that they would strike out the claim.
After many months and multiple hearings, the Court concluded that it was correct and appropriaterity to disapply Section 11 of the Limitation Act 1980, in accordance with Section 33 of the same Act. Ironically, this process cost both Defendants considerable time and expense. More importantly, by the time the limitation issue was resolved, the driver of the Claimant’s car had already proceeded to a fast-track trial and had been successful. As a result, the Claimant’s chances of success significantly increased.
I thought back this this case when I read paragraph 33 of Alton v PZU. Parties really do sometimes cause so much more work and hassle contesting points that ought not to be contested.
As a closing point, I should emphasise to all that if you attend the Court of Appeal and it’s being streamed, just remember the recording does not stop just because the Judges have left. It has, unfortunately, caught me saying (as we left the court room) “do you think they will mind if I take on of these [law] books as a souvenir?”. Fortunately, the Court clerks did not say anything bad either because their entire conversation after we all left was also included and remains on YouTube.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.