Too late to change your mind? – by David Knifton KC
October 29, 2025
David Knifton KC considers the recent decision in Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692, in which the High Court refused to permit a Part 36 offer to be withdrawn
The Claimant suffered neurological injury resulting in paraplegia as a result of an admittedly negligent delay in diagnosis of spinal tuberculosis. Judgment was entered for quantum to be assessed at a trial in October 2025. At a round table meeting (RTM) on 1.7.25, no settlement was reached, as the Claimant indicated for the first time that he sought provisional damages, and the Defendant did not have authority to settle on that basis. However, during the RTM the Defendant made final settlement offers of £7,350,500 on a lump sum basis, or £4m plus variable PPOs. It appears that the offers were intended to be of equal value.
On the day following the RTM, the Claimant made a Part 36 offer on identical terms to the Defendant’s PPO offer, except that it now included provisional damages to cover a deterioration in neurological function of his upper limbs. That offer was made on the basis of instructions given by the Claimant at the RTM. However, on 8.7.25, the Claimant’s solicitors notified the Defendant that he wished to withdraw the offer, and that he now wished to settle on a lump sum basis. On 22.7.25, within the relevant 21 day period, the Defendant served notice of acceptance of the Claimant’s Part 36 offer.
CPR 36.9 provides that a Part 36 offer can be withdrawn if the offeree has not previously served notice of acceptance, but that provision is subject to 36.10, which provides that if the offeree serves notice of acceptance before expiry of the relevant period, the acceptance has effect unless the court gives permission for the offer to be withdrawn. By 36.10(3), the court may give permission 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 permission.
In Evans v Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185, Leggatt J held that the test of whether there had been a change of circumstances to make it just to permit withdrawal should be the same as that previously adopted in relation to payments into court. Examples of such circumstances would include the discovery of further evidence which puts a wholly different complexion on the case or a change in the law brought about by a new judicial decision. In Retailers v Visa [2017] EWHC 3606, Sir Jeremy Cooke held that there must be more than a change in the parties’ evaluation of known or existing facts or evidence: what is envisaged is some radical alteration in circumstances which would justify departing from the valuation placed on the case when the offer was made.
The Claimant argued that he was a vulnerable party, who was overwhelmed by fatigue and pain at the time of the RTM, but that following subsequent discussions with an IFA and his family, he had changed his mind and decided he would prefer the finality and investment opportunities presented by a lump sum. Since he had notified the Defendant of the withdrawal of his offer well before the Defendant indicated acceptance, and the lump sum terms he was now proposing were identical to those offered by the Defendant at the RTM, there was no disadvantage to the Defendant.
Master Cook rejected the submission that the Claimant was a vulnerable party, in the sense of an inability to instruct his representatives so as to participate fully in the proceedings. He had been represented throughout by specialist PI solicitors, who would have ensured that he had sufficient space in which to give instructions. Part 36 was a self-contained procedural code, containing a highly structured and prescriptive set of rules. Certainty and predictability were of vital importance when applying their provisions, so that parties and their advisers knew where they stood when making or considering offers. A change of mind cannot amount to a change of circumstances for the purposes of CPR 36.10(3). To hold otherwise would be to introduce an unacceptable degree of uncertainty into what should be a certain process. The Claimant’s application to withdraw his Part 36 offer was refused.
Comment
At first sight the decision seems rather harsh. After all, the Claimant had notified the Defendant of his intention to withdraw the offer well before the Defendant had given notice of acceptance. Why should he be prevented from changing his mind, when the Defendant had itself changed its mind, having been willing at the RTM to make offers on both a lump sum and PPO basis? It is clear, however, that the Senior Master’s decision is entirely consistent both with the provisions of Part 36 and a long-established line of authority. The purpose of Part 36 is to ensure that, when a Part 36 offer is made, the offeree has a sufficient opportunity (usually 21 days) within which to consider it, free from the fear that it might be withdrawn at any moment. In the absence of a change in circumstances, the offeror is not permitted to withdraw the offer or change its terms until that period has expired. The cases (which can be traced back to the wartime decision in Camper v Pothecary [2941] 2 KB 58) establish that the change in circumstances must be significant, rather than a simple change of heart. Contrary to the rules as to offer and acceptance in the law of contract, this means that even if the offeror changes his mind and serves a notice of withdrawal, the offeree remains free to accept the offer, provided they do so within the relevant period.
Not for the first time, this decision demonstrates that, whilst Part 36 has repeatedly been said to be a self-contained code, it remains vital to be aware of the relevant case law. In this case, the undefined expression “change of circumstances” in CPR 36.10(3) has been given a much narrower interpretation by the courts. It is clearly important to all of us to ensure that, before making Part 36 offers, our clients fully understand the position to which they are committing themselves.
