“From Strike-Out to Amendment” – The Alton v Powszechny Zakład Ubezpieczeń Principle on Curing Defective Pleadings Involving Foreign Law

Introduction

Case: Alton v Powszechny Zakład Ubezpieczeń (PZU) [2024] EWCA Civ 1435
Court: Court of Appeal (Civil Division), England & Wales
Judgment date: 22 November 2024

Ms Alton, injured in a 2017 motorway collision with a Polish-registered lorry, brought proceedings that were initially mis-directed at InterEurope (the UK claims-handler) rather than PZU (the Polish insurer). After repeated procedural mis-steps, Deputy District Judge (DDJ) Pithouse struck out the claim. His Honour Judge (HHJ) Parker reinstated it, and PZU appealed. The Court of Appeal has now:

• Confirmed that where a pleading is defective yet clearly curable, strike-out is disproportionate.
• Clarified how CPR 3.4, CPR 17.4 and the Limitation Act 1980 interact when foreign law constitutes the new “fact” pleaded.
• Stressed the court’s duty to weigh prejudice and to consider an unless order before extinguishing a claim.

Summary of the Judgment

Lord Justice Popplewell (with Holgate LJ and Peter Jackson LJ concurring) dismissed PZU’s appeal. He upheld HHJ Parker’s decision to set aside the strike-out because the DDJ had:

1. Misjudged the curability of the pleading defect: a direct right of action under Polish law (via Rome II Art 18) was overwhelmingly likely.
2. Mischaracterised “prevarication”: the claimant had signalled her intention to amend and requested an unless order.
3. Ignored the balance of prejudice: strike-out would deprive Ms Alton of a meritorious, modest PI claim, whereas PZU faced negligible prejudice.

The appeal court reaffirmed that it can intervene where the lower court (i) errs in principle, (ii) omits relevant factors, or (iii) reaches a conclusion outside the reasonable range. Popplewell LJ found all three errors.

Analysis

1. Precedents Cited and Their Influence

• Park v Kim [2011] EWHC 1781 (QB) – Tugendhat J’s guidance that courts normally allow amendment before striking out was central. The DDJ failed to heed it.
• Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 – reiterated the “real, not fanciful” prospect test for strike-out and amendments; adopted by Popplewell LJ.
• Carroll v Chief Constable of GMP [2017] EWCA Civ 1992 – restated appellate limits on disturbing discretionary decisions; cited to show when intervention is justified.
• Mulalley v Martlet Homes [2022] EWCA Civ 32 – authority that a new cause can arise out of “substantially the same facts” even if new facts are introduced.
• Goode v Martin [2001] – key for understanding the purpose behind CPR 17.4(2) and s.35 Limitation Act.
• Bumper Development Corp v MPS [1991] 1 WLR 1362 – special status of foreign law as “fact”.

2. The Court’s Legal Reasoning

a) Curability of the Pleading
The Court emphasised that “curability” turns on whether an amended pleading would have a real prospect of success. Given EU Motor Insurance Directive obligations, Article 822(4) Polish Civil Code and PZU’s own conduct (early admission of liability), success was “overwhelmingly likely”.

b) Foreign Law as Fact
Failure to cite the precise Polish provision was deemed a technical deficiency. Where the defendant (a Polish motor insurer) plainly knows its domestic law, demanding immediate expert evidence would be disproportionate and contrary to the Overriding Objective.

c) Limitation Considerations
Although the Court left the point for the County Court, Popplewell LJ’s obiter view was that substituting a Polish-law cause of action would still arise from “substantially the same facts”; therefore s.35 Limitation Act need not bar amendment.

d) Proportionality and Prejudice
The DDJ overlooked the skewed prejudice: a modest PI claim would vanish, yet PZU would incur minimal additional effort. An unless order, suggested by the claimant, would have met the case management aims without injustice.

3. Impact on Future Litigation

The judgment crystallises several practical rules—collectively labelled here the “Alton Principle”:

1. Courts should favour amendment over strike-out where a defect is arguably curable, especially in cross-border motor cases.
2. Foreign-law particulars need not be pleaded with granular precision at strike-out stage if the defendant is better placed to confirm or deny the proposition.
3. Unless orders are the preferred tool for managing dilatory or reluctant pleaders.
4. Balance-of-prejudice analysis is mandatory; failure to conduct it is an appealable error.

Expect claimants to rely on Alton when rescuing mis-pleaded cross-border insurance or product liability claims, and defendants to face heavier burdens before securing strike-outs.

Complex Concepts Simplified

• CPR 3.4(2)(a) – permits the court to strike out a statement of case that discloses no reasonable grounds. Alternative ≈ summary judgment.
• Unless Order – a conditional order: non-compliance automatically triggers a specified sanction (e.g., strike-out).
• Rome II, Article 18 – EU Regulation allowing a direct action against an insurer where either (i) the law governing the tort, or (ii) the law governing the insurance contract, provides such a right.
• Sixth Motor Insurance Directive (2009/103/EC) – requires EU states to guarantee a right of action against motor insurers.
• Foreign Law as Fact – In English proceedings, the content of non-UK law must be pleaded and proven like any other fact (usually with expert evidence) unless agreed or notorious.
• s.35 Limitation Act / CPR 17.4(2) – after limitation expires, a new cause of action may be added only if it arises from the same or substantially the same facts.

Conclusion

Alton v PZU is more than a procedural skirmish over a modest whiplash claim. It sets a clear precedent that:

• The default reaction to a defective pleading—especially one involving foreign-law rights—is to allow amendment, not to extinguish the claim.
• Court discretion must be exercised with explicit regard to proportionality, curability, and prejudice.
• Defendants conversant with the relevant foreign law cannot exploit technical pleading gaps to win strike-outs.

The “Alton Principle” strengthens access to justice in transnational tort and insurance litigation, affirms the role of unless orders, and signals to practitioners that precision in pleading remains vital yet curable where substance supports the claim.