Summary of Opinion — Anonymised

Factual and Procedural Background

This dispute arises from an admitted failure to arrange MRI scanning when the Plaintiff attended the Emergency Department on 4 August 2020, which led to a delayed diagnosis of spinal tuberculosis and resultant neurological injury. The Plaintiff (now aged 35) is described in the opinion as effectively paraplegic, wheelchair bound, with no movement in both legs, significant neuropathic pain and paraesthesia, and bladder, bowel and sexual dysfunction. There is also an identified syrinx which an expert reports creates a small but material risk of future deterioration affecting the Plaintiff's upper limbs and a small risk of further deterioration in bladder, bowel and sexual function.

Procedural history in summary (as stated in the opinion):

• A Letter of Claim was sent on 8 March 2022.
• The Defendant responded on 17 November 2022 with an early admission of breach of duty.
• Proceedings were issued on 31 March 2023; Particulars of Claim were served on 12 April 2023.
• The Defence dated 6 June 2023 repeated the admission of breach and included admissions on causation (set out in the opinion).
• Judgment in liability was entered for the Plaintiff on the basis of those admissions, leaving quantum to be assessed; a trial on quantum was listed for 2 October 2025.
• A round table meeting ("RTM") took place on 1 July 2025; offers were exchanged but the parties did not settle because the Plaintiff sought provisional damages in a form the Defendant had not previously authorised.
• The Plaintiff's solicitors made a Part 36 offer on 2 July 2025 that included retained lump sum, variable periodical payments and an order for provisional damages.
• The Plaintiff gave notice of withdrawal of that Part 36 offer on 8 July 2025; notwithstanding that, the Defendant accepted the Part 36 offer on 22 July 2025.
• By application notice dated 29 July 2025 the Plaintiff applied to the court for permission to withdraw the Part 36 offer. The application is supported by witness statements of the Plaintiff and of his solicitor (both dated 29 July 2025). The Defendant opposes the application.
• By consent the trial on quantum was vacated so that the court could determine this application under CPR Part 36.

Legal Issues Presented

1. Whether, for the purposes of CPR 36.10(2)(b) and (3), there has been a "change of circumstances" since the making of the original Part 36 offer such that the court should give permission for the Plaintiff to withdraw or change the offer.
2. Whether it is "in the interests of justice" to grant permission to withdraw the Part 36 offer in the circumstances described, having regard to the limited discretion under CPR Part 36 and the policy considerations identified in the authorities.
3. To what extent the Plaintiff's medical condition and alleged vulnerability (fatigue, pain and fluctuating capacity to focus) should be taken into account under the overriding objective and Practice Direction PD 1A when deciding whether to permit withdrawal of a Part 36 offer.

Arguments of the Parties

Plaintiff's Arguments (as advanced by Attorney [Kellar])

• The Plaintiff relied on passages in his witness statement describing that he found the RTM day overwhelming, that fatigue and pain impaired his ability to focus and to give clear instructions on the day, and that after the RTM he obtained further independent financial advice (meetings and calls with advisors) before deciding he wished to withdraw the Part 36 offer.
• Counsel submitted that the term "change of circumstances" in CPR 36.10(3) should be interpreted with some flexibility and in light of the overriding objective; the rule does not circumscribe what may qualify as a relevant change of circumstances.
• It was submitted that the Plaintiff's vulnerability (physical disability, pain and fatigue) could be part of the relevant circumstances and that the Plaintiff had given instructions on a "bad day" and later changed his mind on a "good day", so that the change in personal circumstances should be relevant.
• Several practical factors were put forward in support of permission being granted:
  • The Plaintiff served notice of withdrawal promptly (8 July) and before the Defendant accepted (22 July).
  • The lump sum now proposed by the Plaintiff (£7,350,500 as stated in the opinion) is identical to the lump sum the Defendant had offered as an alternative at the RTM, and the Defendant's own alternative offered lump sum was treated by the Defendant as equivalent in value to the PPO offer.
  • The revised terms on provisional damages in the Plaintiff's revised offer were, in certain respects, more generous to the Defendant than the original Part 36 offer.
  • There was no suggestion from the Defendant that it would not be willing to settle on terms previously offered at the RTM if permission to withdraw were granted; the only remaining dispute was the form of award.
• Overall, Attorney [Kellar] argued that, weighed together with the Plaintiff's vulnerability, these matters amounted to a change of circumstances and that it would be in the interests of justice to permit withdrawal.

Defendant's Arguments (as advanced by Attorney [Watson])

• The Defendant accepted the Plaintiff's pain and fatigue but submitted that those facts were known and evidenced before the offer; there is no new evidence or change in legal authority that puts a different complexion on the case.
• Counsel emphasised that the change relied upon is, in substance, a "change of mind" by the Plaintiff, and the authorities establish that a mere change of mind does not amount to the sort of "change of circumstances" required by CPR 36.10(3).
• The Defendant drew attention to the negotiation history:
  • During the RTM the Plaintiff had only made offers combining a retained lump sum and indexed periodical payments; no lump-sum-only offers were made at the RTM, so the Part 36 offer made on 2 July 2025 was consistent with that position.
  • The Part 36 offer was made at 15:42 on 2 July 2025 (the day after the RTM), giving the Plaintiff time after the RTM to rest, reflect and to instruct solicitors; thus the Plaintiff had the opportunity to consider matters before making the offer.
• The Defendant submitted that it reasonably concluded, after reflection, that a periodical payment settlement was more advantageous and that allowing withdrawal for a change of mind would undermine certainty and predictability in CPR Part 36.

Table of Precedents Cited

Court's Reasoning and Analysis

The court framed the application under CPR 36.10(2)(b) and (3): because the Defendant had accepted the Plaintiff's Part 36 offer within the relevant period, the Plaintiff required the court's permission to withdraw the offer. The court therefore asked whether there had been a "change of circumstances" since the making of the original offer and whether it was in the interests of justice to give permission.

The court considered authorities that articulate the test for permission to withdraw: the test requires more than a change in the parties' evaluation of known facts or evidence. The kind of changes envisaged include discovery of fresh evidence that puts a wholly different complexion on the case or a change in legal outlook produced by a new judicial decision. The court emphasised the established policy considerations underpinning Part 36: encouraging reasonable settlement, promoting certainty and predictability, and recognising that Part 36 is a structured procedural code conferring limited discretion on the court.

The court addressed the Plaintiff's submission that his medical vulnerability (fatigue, pain and fluctuating ability to focus) ought to be taken into account under the overriding objective and PD 1A. The court noted:

• Amendments to the overriding objective and PD 1A require the court to consider vulnerability and to take proportionate measures to ensure participation and best evidence, but the emphasis is on participation in proceedings and giving evidence, and such concerns should be identified at the earliest stage.
• In this case, the Plaintiff's representatives were specialist personal injury solicitors who had the medical evidence and were aware of his difficulties. The court observed that no party raised vulnerability as an issue before the hearing; there was no suggestion prior to the hearing that the Plaintiff's ability to instruct his solicitors was adversely affected.
• The court was not satisfied that the situation required special measures under PD 1A (such as directions or support to facilitate participation). The court regarded the circumstances as different from cases that require such measures.

On the central statutory test, the court accepted the Defendant's submission that the change relied upon by the Plaintiff amounted to a change of mind. The court held that a change of mind cannot constitute a "change of circumstances" for the purposes of CPR 36.10(3). The court reasoned that to allow withdrawal on such grounds would introduce unacceptable uncertainty into a regime that requires certainty and predictability.

The court also rejected the Plaintiff's argument that, in substance, there was no material difference between the original and revised offers. The court accepted the Defendant's position that, on proper reflection, a periodical payment settlement was more advantageous and provides distinct benefits (avoiding over- or under-compensation, financial certainty) in cases where life expectancy is impaired by injury. The court concluded that these considerations justified holding the Plaintiff to his Part 36 offer.

Holding and Implications

Core Ruling: Permission to withdraw the Part 36 offer is refused.

Consequences and practical implications:

• The Plaintiff must be held to the Part 36 offer he made on 2 July 2025; the court declined to exercise its limited discretion under CPR 36.10(2)(b) and (3) to permit withdrawal.
• The court emphasised the importance of certainty and predictability in the operation of CPR Part 36 and reiterated that a mere change of mind or reevaluation by a party does not meet the statutory test of a "change of circumstances".
• The opinion records that the court considered, but did not find persuasive, the submission that the Plaintiff's medical vulnerability should alter the application of the Part 36 test in this case, noting that vulnerability concerns had not been raised earlier and that the Plaintiff had specialist legal representation.
• The decision does not purport to establish a new principle of law beyond applying established authorities; the court stated that the existing authorities require a significant alteration in circumstances to justify permitting withdrawal of a Part 36 offer, and that test was not met here.

Note on anonymisation: All personal names and sensitive identifiers in this summary have been replaced with consistent anonymised placeholders. The substance of the court's reasoning, the factual matrix and procedural chronology are taken exclusively from the provided opinion and no additional facts or inferences have been introduced.