COURT OF APPEAL FIND THAT CLAIMANT’S ACTION AGAINST “WRONG” DEFENDANT SHOULD NOT HAVE BEEN STRUCK OUT: PERMISSION TO AMEND THE CLAIM SHOULD HAVE BEEN GIVEN

I am grateful to barrister James Patience for sending me a copy of the Court of Appeal judgment in ELYSA ALTON  and –
POWSZECHNY ZAKLAD UBEZPIECZEN [2024] EWCA Civ 1435. The Court of Appeal upheld the decision of a Circuit Judge who stated that a claimant’s action against a foreign insurer should not have been struck out but rather the claimant should be given permission to amend the claim to plead an action against the correct party (the actual insurer rather than the UK claims handler). A copy of the case can be found here Alton Judgment for hand down

“… the Judge’s criticism of the DDJ’s failure to take into account what Tugendhat J said at [40] of Kim v Park, namely that it is normal to permit a claimant an opportunity to cure a defective pleading, is well-founded. The dictum is not a freestanding principle, but merely a reflection of what will in many cases fulfil the Overriding Objective.”

THE CASE

The claimant was injured in a collision with a lorry with a Polish number plate.  The claimant’s solicitors wrote to InterEurope AG European Law advancing the claim and asking for details of the insurer.  Liability was admitted by the identity of the insurers was not rpovided.

Proceedings were issued in the county court and InterEurope was named as the defendant.

THE DEFENCE

The defendant filed a defence that admitted negligence but denied liability on the  grounds that InterEurope was not the insurer of the vehicle but simply the claims handler in the United Kingdom.

THE AMENDED PARTICULARS AND THE DEFENDANT’S APPLICATION TO STRIKE OUT

The claimant sought, and was granted on a without notice basis, permission to amend the Particulars of Claim to substitute the Polish insurer  PZU as the defendant.   However that proposed amendment did not correctly identify the provision which allowed the claimant to bring the action to strike the action out. The defendant applied to strike out the action.

THE DISTRICT JUDGE’S STRIKING OUT OF THE ACTION

The claimant’s skeleton argument identified the correct cause of action against the insurer and proposed a further amendment.  However the District Judge struck out the action.

THE CLAIMANT’S  PROPOSED AMENDED PARTICULARS

The claimant sought permission to appeal and to further amend the Particulars to plead the  correct cause of action against the insurer.

“Ms Alton sought and was granted permission to appeal against the DDJ’s strike out order. Whilst it was pending, on 2 November 2022 MJW issued an application to amend her P/C in the form annexed to the notice. The draft reamended P/C identified the basis of the direct cause of action against PZU in exactly the same terms as had been articulated in paragraph 17 of Mr Rowley’s skeleton argument before the DDJ, save that the applicable provision of Polish law was now identified as being Article 822(4) of the Polish Civil Code, which provides that a person entitled to compensation for a contingency covered by a civil liability insurance policy may bring a claim directly against the insurer. Therefore the law applicable to the insurance contract provided the claimant with a right to bring her claim directly against the insurer and she had the right to bring her claim directly against PZU pursuant to Article 18 of Rome II. A witness statement by the legal executive at MJW handling the claim, Mark Winton, confirmed that the cause of action against PZU arose under Rome II as set out in the draft reamended P/C which he exhibited. He explained that it was his error which had led to the cause of action at the time of the first amendment continuing to rely on the 2002 Regulations rather than these provisions, which he described as an oversight.”

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE CIRCUIT JUDGE

On appeal the claimant was successful in setting aside the striking out.

“He said that the DDJ’s judgment did not contain any consideration of whether striking out was a proportionate response to the claimant’s failings; did not take account of what was said in Kim v Park indicating that it would be normal to give a party a chance to put matters right; and that the DDJ did not address the possibility of the court making an unless order

He therefore addressed the factors relevant to the exercise of the discretion for himself. He accepted that the defect had been very clearly flagged up to the claimant in the original defence and that the “deeply unimpressive” conduct of the claimant’s legal advisers in failing properly to articulate the basis for the claim had caused delay. In relation to the extent of delay, he also took account of the fact that the first strike out application by InterEurope had not yet been before the court, and that there was only a two month period between the strike out application by PZU (in January 2022) and the hearing before the DDJ at which the proper basis of the claim had been identified (March 2022). He also adverted to the fact that the claimant’s advisers had not only failed to address the point until the end of that two months but had not even then appeared before the DDJ with a proposed draft reamended P/C. However the wider context was one in which PZU did not say that there could be no cause of action against it, but merely that the claimant had failed to identify what it was. Given “the status of the defendant” (i.e. that it was a Polish insurer) it would probably have been apparent to it for some time how the claimant would remedy the defect. The defendant was not prejudiced by any delay since it had already addressed the merits of the claim in the Defence, and it would not need any evidence of its own to meet the claim, save possibly as to Polish law in respect of which any delay would have no effect.
19. The Judge concluded that strike out was a disproportionate response and outside the scope of the DDJ’s reasonable discretion.

THE DEFENDANT’S UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

“Like the judge, I have not found the DDJ’s judgment easy to follow, but on the most benevolent construction it seems he took into account the following matters. The claimant had been aware of the need to rectify the defect in the pleading since the Defence was served and had still not formulated a draft pleading doing so (para 8); an application for leave to amend would have to consider a question under the Limitation Act 1980 (which would in fact be whether the new cause of action arose out of the same or substantially the same facts pursuant to s. 35 of the Limitation Act 1980 and CPR 17.4(2) (para 9); the claimant was still considering whether to apply to amend, which was surprising, and involved another two months of delay from when the strike out application had been issued in January (para 10); the application had to be resolved without reference to Ms Alton having a claim in negligence against her solicitor if the claim were struck out because that would not substitute “one pot of gold” for another in the sense of providing an adequate remedy to Ms Alton for failings by her advisers (para 11); the DDJ was not satisfied that a pleading could properly be formulated to advance a claim against PZU (para 12).

23. In my view this reasoning discloses three errors of principle, each of which entitled the Judge to substitute his own evaluative assessment.
(1) The DDJ was wrong to doubt that a pleading could properly be formulated to advance a claim against PZU.

(2) The DDJ was wrong to treat the claimant as merely considering whether she might or might not apply to amend the pleading (‘prevaricating’, as Mr Nkrumah put it in argument); and in failing to take account of the possibility of an unless order which was the course the claimant invited.
(3) The DDJ took no account of the balance of prejudice to the parties.
24. I will address each in turn.”

THE DEFECTS IN THE DISTRICT JUDGE’S REASONING

“The question whether the defect in the pleading could be cured was simply whether a pleading could properly be formulated to advance a claim against PZU which had a real prospect of success. That would not require it to be shown that there was a cause of action which was bound to succeed, but merely one which was arguable in the sense that it had a real, as opposed to fanciful, prospect of success. This is the merits test for striking out a statement of case under CPR 3.4(2)(a), for reverse summary judgment, and on an application to amend: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd. [2021] EWCA Civ 33 [2021] 3 All E.R. 978 at [16]-[18].

In fact the position on the material which was before the DDJ was sufficient to show that it was not only arguable by reference to this threshold, but overwhelmingly likely to succeed. That was so not only as a result of it being Poland’s obligation to give effect in its domestic law to the Sixth Motor Directive, but also from PZU’s conduct in relation to the claim. It is clear that InterEurope was from the time when the claim was first advanced by Ms Alton the authorised agent of PZU in relation to the claim; and InterEurope had said at an early stage that liability would not be in issue, which was only consistent with PZU having a direct liability as the insurer of the lorry. The Defence of InterEurope pleaded full reasons why PZU was not liable under the 2002 Regulations, but did not suggest that PZU was not subject to a direct claim at all. Most tellingly, when Mr Rowley’s skeleton argument set out in terms the basis for the direct claim at paragraph 17, it was not met by the suggestion that there was no such claim under Polish law, a matter with which PZU would be immediately familiar as a Polish motor insurer. The DDJ should have drawn what we take to be the obvious inference that there was most unlikely to be an issue about the direct claim existing under Polish law once it was pleaded. That was further supported by the terms of DAC Beachcroft’s email of 15 March 2021. In substance, therefore, PZU’s stance had never been to suggest that the defect in the pleading could not be cured, but rather simply that it hadn’t been

27. Mr Nkrumah argued that nevertheless the critical feature before the DDJ was that Ms Alton had failed to identify the specific provision of Polish law relied on and to support it with expert evidence. In the course of his argument he very frankly described these defects in the prospective amended pleading as “technical”, but argued that they were nevertheless of critical importance. I am unable to accept that either was a critical feature which cast doubt on whether the existing pleading could be cured by an amendment.

28. As to identification of the particular provision of Polish law, the overwhelming inference from the matters I have described was that such a provision existed, although it had not been identified. That is sufficient to establish that there was a real prospect of the defect in the pleading being cured by amendment notwithstanding the lack of identification at that stage of the relevant provision of Polish law itself. Moreover, under CPR 1.3 the parties are required to help the court to further the Overriding Objective, which in cases of this kind includes as an important element dealing with the case in a way which is proportionate to the amount at stake and the financial position of the parties. Whilst there is no general duty on one party to provide information to remedy defects in its opponent’s case, the circumstances which had arisen before the DDJ made it incumbent on PZU to make clear whether it challenged what was said in paragraph 17 of Mr Rowley’s skeleton about what Polish law must provide, and to admit it if it was not challenged, a matter which PZU as a Polish motor insurer would have known without having to undertake any inquiries. To require Ms Alton to go to the expense of taking advice on Polish law in order to set the provision out in a pleading would not have been proportionate if it were not going to be in issue. In those circumstances, having failed to challenge what Mr Rowley said at para 17 of the skeleton as to what Polish law provided, and having admitted liability in pre-action correspondence, PZU could not properly be heard to say that the failure to identify the specific provision of Polish law was such as to cast doubt on whether a direct cause of action could properly be advanced, still less a critical factor.

29. Mr Nkrumah argued that without identification of the specific provision of Polish law the court could not be satisfied that an amendment would have a real prospect of success. I disagree. On the material before the DJ he could and should have been satisfied that there was a real prospect, at the very lowest, that there was a provision of Polish law which had the effect contended for, albeit unidentified. Indeed that was overwhelmingly likely, as Mr Rowley had submitted.

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.

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.

34. Against that background, the Judge’s criticism of the DDJ’s failure to take into account what Tugendhat J said at [40] of Kim v Park, namely that it is normal to permit a claimant an opportunity to cure a defective pleading, is well-founded. The dictum is not a freestanding principle, but merely a reflection of what will in many cases fulfil the Overriding Objective. Mr. Nkrumah’s argument as to why it should not be applied in this case focussed on the proviso in the passage (“provided that there is reason to believe that he will be in a position to put the defect right”); and was dependent on the argument, which I have rejected, that there was no reason to suppose in this case that the defect could be cured by amendment.

Prevarication and an unless order

35. There is no transcript available of what was said during the hearing before the DDJ but it seems reasonable to proceed on the footing that the argument advanced orally by Mr Rowley followed that in his skeleton argument. The Judge did not treat what was said at paragraphs 17 and 18 of the skeleton as indicating any prevarication, and I agree. It was accepted by Mr Rowley that the current pleading identified an erroneous legal basis for a direct claim against PZU, and he identified the alternative proper basis for it. That can only reasonably be interpreted as indicating an intention to amend to advance the new basis.

36. In any event, had there been any prevarication it would properly have been dealt with by an unless order, providing that the claim be struck out unless an application to amend be made within a limited time. That was Mr Rowley’s suggestion.

Balance of prejudice

37. The DDJ did not advert to, or take account of, the balance of prejudice to Ms Alton of being deprived of her claim if it were struck out, and the prejudice to PZU in having to meet it if it were not struck out. These were not the only factors to be taken into account but they were important ones. The generic reference to rights in paragraph 1 of his judgment and the reference to the pot of gold in paragraph 11 show that he was of course cognisant of the fact that a strike out would deprive Ms Alton of her claim, as he could not have failed to be. But there is no evaluation of the strength of that claim or of the (lack of) prejudice to PZU if it were not struck out.

38. The balance of prejudice militated strongly in favour of dismissing the strikeout application. If struck out, Ms Alton would lose a claim for which liability was unlikely to be in issue, to put it at its lowest, and the quantum of which was to a large extent simply not admitted rather than denied. By contrast, PZU would suffer no prejudice by reason of the defective pleading being cured by amendment, and would have the opportunity to resist such amendment on limitation grounds when the application to amend were heard. Any costs prejudice could be addressed by way of a costs order.

40. In my view the Judge was clearly entitled to reach the conclusion that the claim should not be struck out. His reasoning discloses no error of principle and was not outside the generous ambit of his discretion; indeed I would have reached the same conclusion myself. In the end Mr Nkrumah’s principal challenge to the reasoning rested on his twin arguments that the Judge could not be satisfied that the defect could be cured by amendment, and that he failed to take sufficient account of the prevarication about making an amendment, both of which are unsound for the reasons I have identified. Indeed the point about the lack of particularisation of the relevant provision of Polish law was even less meritorious by the time the appeal was heard by the Judge, because by then article 822(4) of the Polish Civil Code had had been identified in the draft reamended P/C attached to Ms Alton’s amendment application of 2 November 2022. Mr Nkrumah’s only additional argument was that the Judge did not give sufficient weight to the fact that the defect in the pleading could have been addressed on the first application to amend which was determined by DDJ Murphy, having already been identified in the Defence. However the Judge did take that into account as is apparent from his judgment, and the weight to be attached to it was a matter for him in his evaluative assessment of all the relevant factors.