If You Change Your Mind: A closer look at CPR 36.10

In Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB) the court found that there must be some significant alteration in the circumstances of a case which would justify an offeror withdrawing or changing the terms of an offer, and the Claimant’s vulnerability (when viewed in tandem with other factors) did not meet this test; the Claimant was held to his Part 36 offer, with the court declining permission to withdraw it.

The Background

An application by the Claimant dated 29 July 2025, seeking permission to withdraw his part 36 Offer made on 2 July 2025, came before Master Cook. The background to the Claim is that the Claimant alleged a delay in diagnosis of spinal tuberculosis relating to neurological injury. It is admitted that the Defendant, in breach of duty, failed to arrange MRI scanning when the Claimant attended A&E in August 2020.

The Claimant is now 35, and by reason of his injuries, is essentially paraplegic. He suffers from neuropathic pain, paraesthesia and burning sensations in his back and lower limbs as well as bladder, bowel and sexual dysfunction. The Claimant has had a syrinx which according to the Claimant’s neurosurgery expert, gives rise to a small but material risk of future deterioration of the neurological function in his upper limbs, as well as a small risk that he may suffer further deterioration to his bladder, bowels and sexual dysfunction.

The Defendant admitted several breaches of duty in the Defence dated 6 June 2023, and judgment was entered for the Claimant with quantum to be assessed. A trial on quantum was scheduled for 2 October 2025.

The settlement negotiations

An RTM was arranged for 1 July 2025, prior to which all directions had been complied with, except for experts’ discussions and joint reports. On the day of the RTM, offers were exchanged but settlement could not be reached because the Claimant wished to settle on a provisional damages basis, and the Defendant did not have authority to settle on that basis. As the RTM drew to a close, it was agreed that the Claimant would propose new terms (including as to provisional damages) on which he was prepared to settle.

The next day (2 July 2025), the Claimant’s solicitors made a Part 36 offer which included a retained lump sum, a variable periodical payments order and an order for provisional damages. This offer was made on the basis of instructions given by the Claimant at the RTM on 1 July 2025.

On 8 July 2025 the Claimant’s solicitor wrote to the Defendant to put them on notice that the Claimant wished to withdraw the Part 36 offer made on 2 July. However, that offer was accepted by the Defendant on 22 July 2025.

The Claimant wished to settle his Claim on the basis of a lump sum damages award and an order for provisional damages calculated on the basis that the lump sum award would be equal in value to the lump sum and variable periodical payments contained in the Defendant’s Part 36 offer. The offer was made in writing on 29 July 2025. The quantum trial was vacated hence the matter fell to be considered by Master Cook.

The CPR

The following rule, CPR 36.10, fell to be considered:

(1) Subject to rule 36.9(1), this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree.

(2) Where this rule applies—

(a) if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and

(b) 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—

(i) within 7 days of the offeree’s notice of acceptance; or

(ii) if earlier, before the first day of trial.

(3) 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.

It was not in dispute that, as the Defendant had accepted the Claimant’s Part 36 offer before the expiry date of the relevant period, that the Claimant required the court’s permission under r.36.10(2)(b) to withdraw the Part 36 offer. The court therefore needed to consider whether there had been “a change of circumstances” and whether it “[was] in the interest of justice to give permission” for that offer to be withdrawn.

A Wholly Different complexion?

The White Book commentary at 36.10.1 was considered, including its reference to Wolverhampton Hospitals NHS Foundation Trust [2015] 1 WLR 4659, and Leggatt J’s remarks at [52]:

“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 Camper 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.”

The case of Retailers v Visa [2017] EWHC 3606 (Comm) was also considered. At paragraphs [37]-[38] of the Retailers case it was noted that:

“37 . It is accepted that there must be more than a change in the parties’ evaluation of known or existing facts or evidence. There must be new evidence which puts a wholly different complexion on the case or a change in judicial outlook by a judicial decision, such as that of the House of Lords in Benham v Gambling, which changed the whole approach of the courts to the measure of damages for loss of expectation of life without actually changing the law. That was the position in Cumper v Pothecary.

38. The tenor of the examples given suggest that what is envisaged is some radical alteration in circumstances which would justify an offeror departing from the valuation it had placed on the case when making the offer it did.”

Counsel for the Claimant drew the court’s attention, inter alia, to the amended text of the overriding objective (in particular, PD 1A) which focusses on vulnerability. He also focussed on several other factors, including excerpts from the Claimant’s witness statement in which the Claimant described his struggles with processing the settlement negotiations due to fatigue.

Counsel for the Claimant submitted that there was no injustice in permitting a seriously injured claimant to change his mind about the form of award he wished to accept (lump sum / PP) in circumstances where alternative offers had previously been made by the defendant. He suggested that there were multifarious factors which, when placed alongside the Claimant’s medical vulnerability, would meet the “change of circumstances” test. He submitted that a person could be considered vulnerable by reason of a factor (personal, situational / permanent or temporary), which might affect their ability to participate in proceedings, and that this vulnerable condition could amount to part of the relevant circumstances. He also argued, amongst other things, that the lump sum offer of £7,350,500 was identical to the lump sum offer made by the Defendant at the RTM, and that in respect of provisional damages – the offer dated 29 July 2025 was actually more generous to the Defendant than the terms of the offer dated 2 July 2025.

In essence, he submitted that in reality – there was no difference between the Claimant’s original and revised Part 36 offer.

Counsel for the Defendant submitted that the reports of the neurosurgical, care, and physiotherapy experts supported the proposition that the Claimant is known to suffer from fatigue and pain, with good and bad days. She submitted that this was not new and could not constitute a radical change of circumstances: a change of mind could was not a change of circumstances. Counsel for the Defendant also placed emphasis on two key factors:

• During the RTM, the Claimant only made offers on the basis of a retained lump sum and indexed periodical payments; no offers were made on a lump sum only basis. The Part 36 offer made the following day was consistent with this.
• The Claimant’s Part 36 offer was not made at or immediately after the RTM on 1 July, which finished at around 4:25pm. The offer was made the following day at 3:42 by which time the Claimant had ample time to rest and reflect upon the exchange of offers at the RTM, as well as time to reflect on advice he had received on those offers and to instruct his solicitors to delay making any offers until he had discussed the case with his family.

The self-contained code strikes again: avoiding an “unacceptable degree of uncertainty”

Master Cook noted that it was not suggested to him that the Claimant might be vulnerable in the sense that his ability to instruct his representatives might be adversely affected. In fact, at all times the Claimant was represented by a specialist personal injury firm who were presumably aware of his difficulties, particularly given such difficulties were referred to within the expert medical reports obtained by the firm. Master Cook remarked that [at 35]: “In the circumstances, if there had been any such real concern on their part I would have expected the solicitors to raise the issue or at least ensure that their client had sufficient space in which to give his instructions to them. In my judgment this situation is far removed from that in which directions under paragraph 8 or special measures under paragraph 10 of the PD are required.”

As had been repeatedly recognised in the case law, CPR Part 36 is a self-contained procedural code: it is highly structured and prescriptive with restricted discretion [36]. As such, Master Cook accepted Counsel for the Defendant’s submissions that a change of mind cannot amount to a change of circumstances for the purpose of CPR r.36.10(3). To find otherwise would introduce “an unacceptable degree of uncertainty” [38] into a code designed to ensure predictability and certainty. As such, a significant alteration in the circumstances surrounding a case must be identified in order for an offeror to justify the withdrawal of an offer. The Claimant would therefore be held to his Part 36 offer.

As identified by the Master himself, the case law is couched in references to the self-contained nature of the Part 36 regime. When practitioners are faced with knotty problems arising out of Part 36 such as these, it is always important to go back to basics, and to consider the tenor and purpose of the regime – after all, procedural self-containment is expressly enshrined in CPR 36.1(1).

Article by Charlotte Wilk