Dr Ezebunwo Chinda v Cardiff & Vale University Health Board

Permission to withdraw an accepted Part 36 offer requires both a change of circumstances and the interests of justice. A change of mind, even where prompted by pain, fatigue, reflection or a preference for a different form of damages award, is not sufficient. The change must be a significant alteration in the circumstances surrounding the case, such as new evidence giving the case a materially different complexion or a change in legal outlook. Part 36 is a self-contained and prescriptive procedural code. Certainty and predictability are therefore important. Vulnerability provisions support effective participation and the giving of evidence, but do not generally permit a represented party to withdraw an offer merely because instructions later change.

The claimant brought a clinical negligence claim arising from delayed diagnosis of spinal tuberculosis, causing severe neurological injury. Liability was admitted and judgment had been entered for the claimant, with quantum to be assessed.

After a round-table meeting, the claimant made a Part 36 offer involving a retained lump sum, periodical payments and provisional damages. He notified the defendant that he wished to withdraw the offer, but the defendant accepted it within the relevant period. The claimant sought permission under CPR 36.10 to withdraw the accepted offer and substitute a lump-sum settlement. The central issues were whether his later reconsideration, in the context of pain, fatigue and alleged vulnerability, amounted to a change of circumstances and whether withdrawal was in the interests of justice.

1. Application refused. The claimant was required to remain bound by his accepted Part 36 offer.
2. Under CPR 36.10, permission to withdraw an accepted offer requires both a change of circumstances since the offer was made and the interests of justice. The rule gives the court a limited discretion within a structured and prescriptive procedural code.
3. The relevant change must be significant enough to justify departing from the valuation placed on the case when the offer was made. A material example is new evidence giving the case a wholly different complexion or a change in judicial outlook. The claimant’s altered preference for a lump sum followed reflection on known matters and was a change of mind, not the significant alteration required.
4. The vulnerability provisions in the overriding objective and PD 1A focus on enabling vulnerable parties and witnesses to participate fully and give their best evidence. They do not convert a later change of instructions by a represented party, who did not lack capacity, into a qualifying change of circumstances.
5. The defendant had properly evaluated the original offer and considered the periodical-payment structure more advantageous than the alternative lump-sum offer. Permitting withdrawal would undermine the certainty and predictability which Part 36 is intended to provide.