Can A Vulnerable Party's Change Of Mind Justify Part 36 Withdrawal Of An Accepted Part 36 Offer?

Vulnerability and fatigue do not create grounds to withdraw accepted Part 36 offers where the “change of circumstances” is merely a change of mind about settlement preferences, reinforcing Part 36’s certainty requirements.

CHINDA V CARDIFF & VALE UNIVERSITY HEALTH BOARD [2025] EWHC 2692 (KB)

In Chinda v Cardiff & Vale University Health Board, the High Court refused a claimant’s application under CPR 36.10 to withdraw an accepted Part 36 offer in a clinical negligence claim concerning delayed diagnosis of spinal tuberculosis. The claimant made a Part 36 offer following a round table meeting, combining lump sum, periodical payments, and provisional damages. Days later, he sought to withdraw it, arguing his pain, fatigue, and vulnerability had impaired his instructions at the meeting, and that subsequent financial advice led him to prefer a lump sum settlement. The defendant had accepted the offer. Applying CPR 36.10(3) and authorities including Cumper v Pothecary and Retailers v Visa, Senior Master Cook held that a change of mind based on reassessment of known facts did not constitute the requisite “change of circumstances,” which requires radical alteration such as new evidence or legal development. The court held that vulnerability provisions in PD 1A address participation in proceedings and giving evidence, not settlement decision-making capacity. Part 36’s self-contained code prioritises certainty and predictability. The application was refused.

“In the circumstances I accept Ms Watson KC’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.”

Citations

Cumper v Pothecary [1941] 2 KB 58 A party may withdraw an offer only where there has been a significant change of circumstances, such as the emergence of new evidence or a change in the legal landscape affecting case valuation. Flynn v Scougall [2004] 1 WLR 3069 The test for withdrawing a Part 36 offer requires a demonstrable change in circumstances that alters the fairness of holding the offeror to their original position. Evans v Wolverhampton Hospitals NHS Foundation Trust [2015] 1 WLR 4659 Permission to withdraw a Part 36 offer will only be granted where there is a substantial and material change in circumstances, justifying departure from the original offer in the interests of justice. Retailers v Visa [2017] EWHC 3606 (Comm) Part 36 rules are designed to ensure certainty and to promote early and fair settlement; withdrawal of an offer requires a radical change of circumstances, not merely a reassessment of known facts or a change of mind. March v Frenchay Healthcare NHS Trust [1996] PIQR Q101 The interests of justice in relation to withdrawal of offers must consider procedural fairness and whether changes in agreement terms reflect a genuine evolution in case position, particularly in serious injury litigation.

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Key Points

The court may grant permission to withdraw a Part 36 offer after its acceptance if satisfied that there has been a change of circumstances since the offer was made and that it is in the interests of justice to give such permission. [16-17]
A ‘change of circumstances’ for the purpose of CPR 36.10(3) requires a significant alteration in the circumstances surrounding the case, such as the discovery of new evidence or a change in the legal outlook, and not merely a change of mind or a reassessment of known facts. [18-20, 38-39]
The principles of certainty and predictability are of vital importance when construing Part 36, as it is a self-contained procedural code with a highly structured and prescriptive set of rules; parties need to know where they stand when offers are made or considered. [19, 36]
A party’s medical vulnerability, which may affect their participation in proceedings or ability to give instructions, is a factor the court may consider, but it should be identified at the earliest possible stage of proceedings to be relevant to the exercise of discretion under Part 36. [21, 32-35]
The underlying rationale for the relevant period in Part 36 is to give the offeree sufficient opportunity to consider the offer free from the fear that it might be withdrawn at any moment, and the court’s permission to withdraw an offer during this period serves as a monitoring function to release an offeror where a sufficient change of circumstances makes it unjust to be held to the offer. [19, 41]

"It is important to note that the emphasis is on participation in proceedings and the giving of evidence by vulnerable people and it is important to note that by paragraph 6 of PD 1A, the court, with the assistance of the parties, should try to identify vulnerability of parties at the earliest possible stage of proceedings. At no point before the hearing before me was it suggested on behalf of the Claimant that he might be vulnerable in the sense that his ability to instruct his representatives might be adversely affected."

Key Findings In The Case

The Claimant’s Part 36 offer made on 2 July 2025 was properly accepted by the Defendant within the relevant period, and in the absence of a sufficient change of circumstances, the Claimant could not revoke the offer post-acceptance; therefore, costs consequences under CPR Part 36 apply in the usual way following that acceptance [13, 17, 41].
The Claimant’s reasons for seeking to withdraw the Part 36 offer—namely fatigue, later reflection, and a change of preference from periodical payments to a lump sum—did not constitute a sufficient change in the factual or legal circumstances for the purposes of CPR 36.10(3), and thus did not justify departing from the normal costs consequences [22-24, 38-39].
The Defendant reasonably relied on the structure and certainty of the Part 36 provisions when accepting the Claimant’s offer, particularly given that the offer mirrored the format proposed by the Claimant during prior settlement discussions; this reliance was relevant in determining that costs should follow the course mandated by CPR Part 36 [12-13, 19, 30-31].
While the Claimant was medically vulnerable and had good and bad days due to his injury-related fatigue and pain, this vulnerability was not raised earlier in proceedings as affecting his ability to participate in or instruct his legal representatives; accordingly, it did not displace the usual cost consequences stemming from acceptance of a Part 36 offer [32-35].
The court held that allowing withdrawal of the Part 36 offer in these circumstances—absent a material change in evidence or law—would undermine the certainty and predictability that Part 36 is designed to ensure concerning settlement and cost allocation [36, 38-39].

“In my judgment the cases of Cumper v Pothecary and Retailers v Visa correctly identify that there must be some significant alteration in the circumstances surrounding the case which would justify an offeror departing from the valuation it had placed on the case when making the offer.”

The High Court’s decision in Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB) establishes that client vulnerability and medical conditions affecting concentration do not justify withdrawing an accepted Part 36 offer where no objective change of circumstances has occurred.

Background

The claim concerned a delay in the diagnosis of spinal tuberculosis which resulted in the Claimant sustaining a severe neurological injury [§2]. By reason of his injuries, the 35-year-old Claimant is essentially paraplegic, wheelchair-bound, with no movement in both legs [§3]. He suffers from significant neuropathic pain, paraesthesia and burning sensations, together with bladder, bowel and sexual dysfunction [§4]. There was also a small but material risk of future deterioration affecting his upper limbs [§5].

The Defendant, Cardiff & Vale University Health Board, admitted a breach of duty in failing to arrange an MRI scan when the Claimant attended the Emergency Department on 4 August 2020 [§2]. Judgment was entered for the Claimant on the basis of admissions made in the Defence, with damages to be assessed [§8]. A trial on quantum was listed for 2 October 2025 [§8].

A round table meeting took place on 1 July 2025, concluding at approximately 4:25pm [§9-10]. During this meeting, the Claimant, for the first time, indicated a wish to settle on a provisional damages basis [§10]. No settlement was reached, and it was agreed that the Claimant would propose terms [§11]. The following day, on 2 July 2025 at 3:42pm, 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 [§12, §29]. This offer was made on the basis of instructions given by the Claimant at the RTM on 1 July 2025 [§12].

On 8 July 2025, less than seven days later, the Claimant’s solicitors notified the Defendant of the Claimant’s wish to withdraw this offer [§13]. However, the Defendant accepted the offer on 22 July 2025 [§13]. The Claimant then issued an application on 29 July 2025 seeking permission to withdraw the Part 36 offer [§14]. By consent, the trial on quantum was vacated, and the court was asked to determine this application [§15].

Costs Issues Before the Court

The central costs issue was whether the court should grant the Claimant permission to withdraw his Part 36 offer pursuant to CPR 36.10 [§16]. The rule requires that where an offeree serves notice of acceptance of an 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 within seven days of the notice of acceptance [§16(2)(b)]. The court must be 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 [§16(3)]. The application turned on the interpretation and application of CPR 36.10(3).

The Parties’ Positions

The Claimant argued that there had been a change of circumstances sufficient to justify withdrawal [§22-26]. He relied on his medical condition, which caused him significant pain and fatigue, asserting that he found the RTM “really quite overwhelming and exhausting” and that “as a result of my fatigue and pain, I was unable to focus, think clearly and fully consider the instructions I provided to my solicitors on the day” [§22]. The Claimant characterised his condition as rendering him vulnerable and affecting his ability to provide clear instructions during the round table meeting [§26].

The Claimant stated that after the meeting, he had the opportunity to rest, reflect, and seek independent financial advice from an IFA and the author of his Periodical Payment Suitability report, leading him to prefer a lump sum award over the periodical payments structure originally offered [§17, §23]. He said that his revised offer, made on 29 July 2025, was for a lump sum of £7,350,500 – identical to an alternative lump sum offer previously made by the Defendant at the RTM [§25(iii)]. The Claimant also noted that the provisional damages element was now more limited (relating only to upper limb deterioration, not bladder/bowel/sexual function), being more favourable to the Defendant [§25(iv)].

The Claimant further argued that he had notified the Defendant promptly of his wish to withdraw (less than seven days after making the offer, and well before acceptance) [§25(i)], and that all quantum issues were agreed, with the only remaining dispute being the form of the award [§25(v)].

The Defendant opposed the application, contending that no relevant change of circumstances had occurred [§27-28]. They argued that the Claimant’s change of mind, based on a reassessment of known facts, did not meet the threshold required by CPR 36.10(3) [§28]. The Defendant highlighted that the Claimant’s Part 36 offer was made at 3:42pm on 2 July 2025, almost a full day after the round table meeting concluded at 4:25pm on 1 July, allowing ample time for reflection [§29(ii)]. During this time, the Claimant could have rested, discussed the case with his family, or delayed making any offers until after obtaining financial advice [§29(ii)].

The Defendant explained that when considering whether to accept the Claimant’s Part 36 offer, it had concluded that the periodical payment structure proposed was more advantageous than a pure lump sum settlement, offering financial certainty and avoiding over or under-compensation given the Claimant’s impaired life expectancy [§30, §40]. The Defendant submitted that permitting withdrawal on these grounds would undermine the predictability and certainty fundamental to the Part 36 regime [§31].

The Court’s Decision

Senior Master Cook refused the Claimant’s application for permission to withdraw the Part 36 offer [§41]. In applying CPR 36.10(3), the court found that there had been no relevant change of circumstances [§38]. The Claimant’s reassessment of his preferences, influenced by his medical condition and subsequent advice, was characterised as a change of mind rather than a change in circumstances [§38].

The court acknowledged the Claimant’s vulnerability but found this did not constitute a change of circumstances for several reasons [§32-35]:

First, the amended overriding objective and Practice Direction 1A, which address vulnerability, relate to ensuring parties can participate fully in proceedings and give their best evidence [§33]. The emphasis is on participation in proceedings and the giving of evidence, not on decision-making about settlement offers [§33-35].

Second, at no point before the hearing had it been suggested that the Claimant might be vulnerable “in the sense that his ability to instruct his representatives might be adversely affected” [§34]. The Claimant’s specialist personal injury solicitors “should be presumed to be aware of his difficulties, particularly as they were referred to in the expert medical evidence obtained by them” [§35]. If there had been any real concern, the solicitors should have raised the issue or ensured their client had sufficient space to give instructions [§35].

Third, the Claimant did not assert that he lacked capacity to make his decision, and the Part 36 offer was made by solicitors acting on his behalf [§37].

The court emphasised that Part 36 is a self-contained procedural code designed to promote certainty and predictability in settlement negotiations [§36]. Parties and their advisors “need to know where they stand when offers to settle are made or considered” [§36]. The court referred to authorities such as Cumper v Pothecary and Retailers v Visa, which establish that a change of circumstances must be “some significant alteration in the circumstances surrounding the case” – such as new evidence putting a wholly different complexion on the case or a change in the legal outlook from a new judicial decision – and not merely a reevaluation of existing facts [§18-20, §39].

The court rejected the Claimant’s submission that there was no real difference between the original and revised offers [§40]. The Defendant had concluded that a periodical payment settlement was more advantageous, providing financial certainty and avoiding over or under-compensation in a case where life expectancy was impaired [§40].

The court concluded that “to hold otherwise would be to introduce an unacceptable degree of uncertainty into what should be a certain process” [§38]. Consequently, the Claimant was held to his original Part 36 offer [§41].

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