We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
18/11/2025
In Chinda v Cardiff & Vale University Health Board[1] the High Court refused permission to a claimant to withdraw a Part 36 offer shortly after it had been made and before it had been accepted because the claimant’s change of mind did not constitute sufficient grounds. The decision seems harsh at first blush but it is an illustration of the strict approach that the courts adopt to such applications. The judgment contains some consideration of the relevance of a claimant’s ‘vulnerability’ (within the meaning of PD 1A). The decision also highlights a number of important points of practice.
The claimant suffered a serious spinal cord injury causing paraplegia as a result of admitted clinical negligence. Causation of his condition was largely agreed. He had developed a syrinx that gave rise to a small risk of future deterioration in his upper limb function. There was also a risk that his bladder, bowel and sexual function would further deteriorate.
Three months before the trial the parties held a settlement meeting. At that meeting the claimant indicated to the defendant (apparently for the first time) that provisional damages and/or and a variable PPO were sought in respect of future risks. The defendant did not have instructions to make an offer of provisional damages/variable PPO at the meeting.
Negotiations proceeded with the claimant only making offers of provisional damages/a variable PPO and culminated in the defendant making alternative offers of either a PPO comprising a £4 million capital sum plus specified annual payments or a £7,350,500 lump sum. It appears that the capitalised value of the PPO offer was intended to be the same as the lump sum offer. The claimant did not accept either offer, apparently because provisional damages/a variable PPO were not offered, and the settlement meeting ended without compromise. However, the claimant agreed to propose settlement terms on the basis of provisional damages.
On the afternoon of 2 July 2025, the day following the settlement meeting, the claimant made a Part 36 offer that was identical in financial terms to the last PPO offer that the defendant had made at the settlement meeting but was on the basis of provisional damages and a variable PPO covering the risk of both types of deterioration (upper limb and bladder/bowel). The claimant had apparently given instructions for this offer at the end of the settlement meeting on 1 July.
On 8 July the claimant’s solicitors wrote to the defendant’s solicitors stating that the claimant wished to withdraw his Part 36 offer. On 22 July the defendant served notice of acceptance of the Part 36 offer.
It appears that the claimant had been in possession of written financial advice at the time of the settlement meeting but on 14 and 15 July he took further advice from the author of that report and from an IFA.
On 29 July the claimant made a further Part 36 offer that was identical in financial terms to the last lump sum offer that the defendant had made at the settlement meeting but was on the basis of provisional damages covering the risk of only one of the types of deterioration (upper limb). The defendant did not accept this further Part 36 offer but instead sought to hold the claimant to the earlier (PPO) offer.
The claimant’s application was brought under CPR Part 36.10, which applies where the application to withdraw or change the terms of a Part 36 offer is brought before expiry of the “relevant period” (usually 21 days unless close to trial). If the offeree (here the defendant) does not serve notice of acceptance during the relevant period, then the withdrawal/change of the offer takes effect upon the expiry of the relevant period.
Where (as here) the offeree serves notice of acceptance before the relevant period expires, then the offeror (here the claimant) has 7 days to apply to court for permission to withdraw/change the offer.
In deciding whether to give permission to the offeror to withdraw/change the offer, 36.10(3) provides:
“…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.” (emphasis added)
In a passage that echoes through the authorities to this day, the Court of Appeal in Cumper v Pothecary[2] stated that
“…there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, does constitute a contract…”
or, in modern parlance (reiterated in Chinda) it is a
“self-contained procedural code”.
Accordingly, the common law contractual rules of offer and acceptance do not generally apply. Were it otherwise a Part 36 offeror would be free to withdraw an offer before it had been accepted.
In Cumper, the Court of Appeal stated that an offeror
“…must, in our opinion, show that there are good reasons for his application – for instance, 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… and there may be others. Having once put a valuation on the plaintiff’s case, the defendant ought not to be allowed to alter it without good reason…
Apart from matters such as fraud or mistake affecting the original payment, it should consider whether there is a sufficient change of circumstance since the money was paid in to make it just that the defendant should have an opportunity of withdrawing or reducing his payment.”
Thus, the ratio of the case was that, where an offeror requires permission to withdraw an offer, they must show a change of circumstances sufficient to justify the decision. Examples of where this might apply were where further evidence that puts a wholly different complexion on the case emerged or a change in the legal outlook such as a new judicial decision occurred. These were clearly not intended to be an exhaustive list of the circumstances where the court might allow withdrawal.
Practitioners of a certain vintage will recall that, with the advent of the CPR in 1999, citation of old authorities decided under the previous rules was generally deprecated. In Biguzzi v Rank Leisure PLC[3] Lord Woolf stated
“The whole purpose of making the C.P.R. a self-contained code was to send the message which now generally applies. Earlier authorities are no longer generally of any relevance once the C.P.R. applies.”
In the early days of the CPR, this injunction seemed likely to affect decisions on withdrawing Part 36 offers and the relevance of Cumper looked to be on the wane. Until 2015, the CPR said nothing of the circumstances in which permission to withdraw a Part 36 offer should be given. In the absence of specific criteria in the CPR and no doubt taking their lead from Lord Woolf’s words, Curtis J. in Marsh v Frenchay Healthcare NHS Trust[4] and Garland J in MRW Technologies v Cecil Holdings[5] took a more flexible approach than in Cumper, in order to achieve the overriding objective.
May LJ in Flynn v Scougall[6] referred to Garland J’s decision in MRW:
“…he also considered that Goddard LJ’s phrase in Cumper v Pothecary… “a sufficient change of circumstance since the money was paid to make it just that the defendant should have an opportunity of withdrawing or reducing his payment” was to be adopted as consistent with the overriding objective. I agree.”
On the face of it, May LJ was merely restating that the examples in Cumper met the overriding objective. However, his words have subsequently been taken as elevating to principle what were merely examples in Cumper.
The trend continued. So by the time Leggatt J (as he then was) decided Evans v Wolverhampton Hospitals NHS Foundation Trust[7] the test in Cumper was recorded as having been adopted as applicable to the CPR by Flynn.
In Retailers v Visa[8] Sir Jeremy Cooke appeared to take a step further. Regarding the examples in Cumper, he stated
“There must be new evidence which puts a wholly different complexion on the case or a change in judicial outlook by a judicial decision”[9].
No doubt cognisant of these authorities, when Part 36 was substantially amended in 2015, for the first time the criterion found in the current rule (see above) was enacted.
So by the time of Master Cook’s decision in Chinda, what were expressed in Cumper to be examples of a situation where a court might allow an offeror to withdraw an offer, were being spoken of as necessary requirements.
Master Cook declined to give the claimant permission to withdraw the Part 36 offer. He held that the claimant had not shown any circumstances that would justify the application. He emphasised the importance of predictability, such that when an offer is made, the offeror knows that they have a period in which they can accept, without uncertainty that the offer can be withdrawn.
The claimant had argued that he was a vulnerable party and that this should be taken into account. Master Cook was plainly unimpressed by the fact that it had never previously been suggested that the claimant qualified as a vulnerable party and that if the claimant’s advisors had concerns, they should have ensured that he had “sufficient space” to give them instructions. He stated that the claimant’s situation was “far removed” from that in which specific steps are required to protect a vulnerable party, as envisaged by PD1 paragraphs 8 or 10.
The specific problem that arose in this case (claimant offered PPOs and changed his mind in favour of an equivalent lump sum) is one that would probably not have arisen outside of a claim against the NHS. Many private insurers would far rather pay an equivalent lump sum and would have agreed to the claimant’s application. However, the principles are obviously of wider application.
The CPR require only that there has been a change of circumstances since the offer was made and that it is in the interests of justice to permit the offeror to withdraw. Pre-CPR case law has perhaps been surprisingly influential in determining what the test should now be. Furthermore, what were given as examples of when withdrawal might be permitted have, on occasions, been elevated to a greater significance. It would certainly seem well arguable that the gloss put on the words of 36.10(3), to the effect that there must be new evidence that puts a different complexion on the case and/or a relevant change in the law for permission to be given, does not accurately reflect the authorities and is unsupported by the wording of the rule.
Ultimately, however, the case reiterates the point that it is hard to withdraw an offer within the relevant period where the other side wishes to accept it and unusual circumstances will be required to do so (not least that the sufficient change in available evidence or law will have come about within that short period).
There is clear authority that simply taking a different view of existing evidence or receiving evidence that was awaited at the time the offer was made are each not sufficient reasons for permission to withdraw an offer (Flynn v Scougall).
There is some conflict as to whether the fact that the offeror has already accepted at the time of withdrawal is of relevance. Flynn suggested it was, Evans suggested otherwise.
A number of pointers for future practice in personal injury claims emerge from the case.
[1] [2025] EWHC 2692 (KB)
[2] [1941] 2 KB 58
[3] [1999] 1 WLR 1926
[4] The Times 13 March 2001
[5] Unreported, 22 June 2001
[6] [2004] 1 WLR 3069
[7] [2015] 1 WLR
[8] [2017] EWHC 3606 (Comm)
[9] Paragraph [37], although see also [38], where they are referred to as “examples”.
Call: 1991
Sign up
To be kept up-to-date with our latest news and future events, please complete the short form.
A member of the clerking team will help you resolve your request.
