Often, courts can be quick to find that a failure of procedure should result in a claim being struck out. In Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435, the Court of Appeal provided some useful guidance on amendments to pleadings and the need to consider proportionality before striking out claims.

In Alton, the Claimant was involved in a Road Traffic Accident with a Lorry registered in Poland. The Claimant’s solicitors reached out to a claims management company called InterEurope who advised that liability would not be an issue, but did not advise on the identity of the Defendant.

The Claimant then issued protective proceedings against InterEurope, identifying the Third Party (Rights Against Insurers) Act 2010 and the European Communities (Rights Against Insurers) Regulations 2002 in the cause of action. These provisions only relate to vehicles based in the UK.

InterEurope raised a Defence that they were the incorrect Defendant ,and Powszechny Zaklad Ubezpieczen (PZU) was the correct one. The Claimant subsequently applied to amend the pleadings to name PZU as the Defendant. This was granted by the Court.

Around the same time InterEurope made an application to strike out the claim on the basis the pleadings didn’t identify the correct legislative provision that allowed the Claimant to bring the action.

In opposing the application to strike out the claim, the Claimant’s skeleton argument identified Article 822(4) of the Polish Civil Code which would allow the Claimant the correct cause of action against PZU and proposed amending the claim again. The Deputy District Judge refused and struck out the claim.

The Claimant appealed, submitting another amended Particulars of Claim, correctly identifying Article 822(4) of the Polish Civil Code and Article 18 of Rome II through The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.)(EU Exit) Regulations 2019. These allow individuals to bring claims directly against insurers.

The Claimant successfully appealed the order striking out the claim was set aside on the basis that the  Deputy District Judge did not consider whether striking out was proportionate; specifically, they did not consider Kim v Park [2011] EWHC 1781 (QB), indicating that it would be normal to give a party a chance to remedy through amendment; and that the DDJ did not address the possibility of the court making an unless order.

The Defendant then appealed. The Court of Appeal upheld the Circuit Judge’s decision, considering and affirming the decision in Kim v Park. This decision is important to all civil practitioners as it confirms that the Court should consider whether it would be more proportionate to grant the party the opportunity to amend their pleadings or to make an unless order rather than simply striking out a statement of case.