Claimant’s attempt to withdraw a Part 36 offer
Dr Ezebunwo Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB)
This was an application made by a Claimant before Senior Master Cook to withdraw a Part 36 offer. The Defendant had been notified that the Claimant sought to withdraw the offer after it had been made and before the 21 days expired but the Defendant had then accepted it within the original 21 days.
The Claimant was not a protected party but was a young man who had been rendered paraplegic as a result of the Defendant’s admitted negligence in failing to carry out an MRI scan. It was admitted the MRI would have detected spinal tuberculosis and allowed it to be treated before the Claimant became paraplegic.
Master Cook summarised the Claimant’s injury as follows:
“The Claimant suffers from significant neuropathic pain, paraesthesia and burning sensations in his back and lower limbs. He also suffers from bladder, bowel and sexual dysfunction.
The Claimant has suffered a syrinx which, according to Mr. Tizzard (the Claimant’s neurosurgery expert), gives rise to a small, but material risk, that he may in future suffer a deterioration of in the neurological function affecting his upper limbs. There is also a small risk that he may suffer a further deterioration in his bladder, bowel and sexual dysfunction.”
The parties met at a Round Table Meeting 3 months before trial and a settlement could not be agreed as the Defendant had no instructions to agree provisional damages.
Following the Round Table Meeting the Claimant’s solicitors on the Claimant’s instructions made a Part 36 offer on 2 July 2025 in terms that included a retained lump sum, variable periodical payments and an order for provisional damages. On 8 July 2025 the Claimant’s solicitors notified the Defendant’s solicitors that the Claimant sought to withdraw the Part 36 offer. On 22 July 2025 the Defendant accepted the Part 36 offer.
As the Defendant accepted the Claimant’s Part 36 within the specified 21 days the Claimant needed the Court’s consent pursuant to Part 36. 10(2)(b), which provides:
“if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms-“
And Part 36.10(3) provides:
“On an application under paragraph (2)(b), the court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.”
The Claimant therefore needs to persuade the Court both that:
- there has been a change of circumstances and
- that it is in the interests of justice to give permission.
That is as described by Leggatt J. in Evans v Wolverhampton Hospitals NHS Foundation Trust [2015] 1 WLR 4659 at paragraphs 51 and 52
“Part 36 provides a statutory procedure designed to facilitate and encourage the settlement of disputes. It is essential to its efficacy that there should be clarity and certainty in its operation. An important element of the scheme is that, when a Part 36 offer is made, the offeree knows that it has a period of 21 days (or longer if the parties agree) in which to decide whether or not to accept the offer – subject only to the reservation that the offer may be withdrawn before the expiry of that period if the court gives permission.
The test to be applied when the court is considering whether to give a party permission to withdraw a Part 36 offer is whether there has been a sufficient change of circumstances to make it just to permit the party to withdraw its offer. That test was set out by the Court of Appeal in relation to payments into court in Cumper v Pothecary [1941] 2 KB 58 at 70. The Court of Appeal gave as examples of such circumstances “the discovery of further evidence which puts a wholly different complexion on the case … or a change in the legal outlook brought about by a new judicial decision…” This test was adopted in relation to Part 36 payments by the Court of Appeal in Flynn v Scougall [2004] 1 WLR 3069 , 3079 at para 39. I see no reason why the test should be different in relation to a Part 36 offer and, as mentioned earlier, the defendant’s application to withdraw its Part 36 offer was made on the basis that this is the applicable test.”
Senior Master Cook refused to allow the Claimant to withdraw the Part 36 offer.
In essence the Claimant’s reason for seeking to withdraw the Part 36 offer after he had given instructions for it to be made was that he had changed his mind. The reasons given for doing so related to his not being able to think through the consequences when he gave instructions to make it. The Claimant sought to rely on the vulnerability of the Claimant and CPR 1.1 (2)(a) and the overriding objective with the new PD 1A.
Senior Master Cook concluded:
In the circumstances I accept [the Defendant’s] submission that there has been a change of mind by the Claimant and that a change of mind cannot amount to a change of circumstances for the purpose of CPR r36.10 (3). To hold otherwise would be to introduce an unacceptable degree of uncertainty into what should be a certain process.
Lessons from the decision
- Where a Claimant is not a protected party but is nevertheless seriously injured he is unlikely to be treated differently on the basis of vulnerability in respect of decisions made with legal advice. The provisions of PD 1A relate largely to protection of vulnerable witnesses in Court.
- Advice in respect of making a Part 36 offer for a Claimant who is not a protected party needs to include advice that the Claimant will not be able to withdraw the offer if they change their mind about it. The offer can only be withdrawn where there is not just a change in circumstances but one that a Judge considers sufficiently serious to merit departure from the principle that Part 36 offers provide clarity and finality. That is, it needs to be understood that not every change in circumstances will entitle the Claimant to withdraw the offer.
- Advice to the litigation friend of a protected party should be in similar terms but the position is slightly different as a Part 36 offer from a Claimant who is a protected party, even if accepted, still needs to be subject to Court scrutiny on approval and the Court may not approve such a settlement if the Part 36 was not in the interests of the protected party.
- The crucial point the case emphasises is that the purpose of Part 36 offers is to provide certainty and finality and the concept of withdrawal from such offers reduces the benefit of having such a procedure.
Robert Kellar KC of 1 Crown Office Row acted for the Claimant in these proceedings. He did not contribute to the writing of this article but reviewed it for factual accuracy only.”
