Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435

Michael Nkrumah (instructed by DAC Beachcroft Claims Ltd) for the Appellant

LORD JUSTICE POPPLEWELL :

Introduction

• The defendant (‘PZU’) is a Polish insurance company. It appeals from the Order of His Honour Judge Parker (‘the Judge’) dated 21 July 2023 whereby he set aside the order of Deputy District Judge Pithouse (‘the DDJ’) striking out the claimant’s claim.

The procedural history

• On 12 September 2017 the claimant, Ms Alton, was involved in a road traffic accident when driving along the M20 motorway. A lorry with a Polish number plate being driven by Mr Ratajski collided with her vehicle. PZU is the third party liability insurer of Mr Ratajski.

• On 16 September 2019, solicitors acting for Ms Alton, MJW Law (‘MJW’), sent a letter advancing her personal injury claim to InterEurope AG European Law Service (‘InterEurope’), and asking, amongst other things, for the name of the insurers. InterEurope responded saying that liability would not be in issue. The name of insurers was not provided.

• On 12 September 2020 MJW filed Ms Alton’s claim form in the County Court. The claim form was issued in order to protect the three year time limit and said that particulars of claim were to follow. InterEurope was named as the defendant.

• On or about 5 January 2021 Particulars of Claim (‘P/C’) were served. Paragraph 3 alleged that the defendant (i.e. InterEurope) was the UK insurer of the lorry and that Ms Alton had a direct right of action against it pursuant to the Third Party (Rights Against Insurers) Act 2010 (‘the 2010 Act’) and the European Communities (Rights Against Insurers) Regulations 2002 (‘the 2002 Regulations’). Paragraphs 4 to 7 alleged that the accident had been caused by Mr Ratajski’s negligence and relied on InterEurope’s admission of liability. Paragraph 8 gave details of the damage suffered and damages claimed. It identified the personal injury suffered, comprising whiplash injuries, a fracture to the right hand and psychological injuries, evidenced by five medical reports which were served with the P/C. Special damages involving various heads of expenditure and loss totalling about £5,000 were itemised. The total damages claimed were limited to £13,500 plus interest and costs.

• On 2 March 2021 DAC Beachcroft Claims Ltd (‘DAC Beachcroft’) filed a Defence on behalf of InterEurope. Paragraph 2 identified that InterEurope was not the insurer of Mr Ratajski’s vehicle but merely the claims handler in the United Kingdom for PZU as the insurer. For that reason the Court was invited to strike out the claim of its own motion pursuant to rule 3.4 (a) of the Civil Procedure Rules. The Defence went on to allege that in any event no claim against PZU as the insurer arose under the 2002 Regulations because they only applied in respect of vehicles normally based in the United Kingdom, and the territory in which the vehicle is normally based is by regulation 2(a) the territory of the vehicle’s registration plate, which in this case was Poland. For this reason too, the Court was invited to strike out the claim of its own motion. The Defence went on to plead to the substance of the claim without prejudice to those contentions. It admitted that the accident had been caused by the negligence Mr Ratajski, but put Ms Alton to proof that she had suffered the alleged injuries and that they were caused by the accident. Particular points were made as to the various heads of special damages.

• On 3 March 2021, MJW served on DAC Beachcroft a draft amended claim form and draft amended P/C, seeking to substitute PZU as the defendant. The draft amended P/C continued to allege that the direct cause of action against the insurer arose by reason of the 2010 Act and the 2002 Regulations. DAC Beachcroft declined to consent to the amendments.

• On 12 April 2021, MJW issued an application seeking to amend the claim form and P/C to substitute PZU as the defendant, in the form of the drafts which had been served on DAC Beachcroft. The amended P/C continued to allege that the claim lay directly against PZU by reason of the 2010 Act and 2002 Regulations. That application came before Deputy District Judge Murphy on paper on 23 April 2021 and was granted. The Order referred to PZU’s right to apply to set aside the order and gave permission for it to serve an amended defence.

• It did neither, for understandable reasons. InterEurope had itself filed an application to strike out the claim and for a wasted costs order on 12 April 2021, the same day as Ms Alton’s amendment application, but that application had not been processed by the court office and was not before DDJ Murphy. It was subsequently issued and served on MJW.

• Meanwhile pursuant to DDJ Murphy’s order, Ms Alton filed the amended claim form and amended P/C on 19 May 2021. On 27 May 2021 DAC Beachcroft wrote pointing out that the amended P/C were defective in relation to any cause of action against PZU, for the reasons already set out in the Defence. On 5 January 2022 a second application to strike out the claim was issued by DAC Beachcroft. This was intended to be, and was thereafter treated as being, PZU’s application to strike out, although in fact it erroneously still referred to InterEurope as the defendant making the application (‘the strike out application’).

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