Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 49
If You Change Your Mind:
A closer look at CPR 36.10
by Charlotte Wilk, Barrister at Gatehouse Chambers
of the RTM, o昀昀ers were exchanged but settlement
could not be reached because the Claimant wished
to settle on a provisional damages basis, and the
Defendant did not have authority to settle on that
basis. As the RTM drew to a close, it was agreed that
the Claimant would propose new terms (including as
to provisional damages) on which he was prepared
to settle.
In Chinda v Cardi昀昀 & Vale University Health Board
[2025] EWHC 2692 (KB) the court found that
there must be some signi昀椀cant alteration in the
circumstances of a case which would justify an
o昀昀eror withdrawing or changing the terms of an
o昀昀er, and the Claimant’s vulnerability (when viewed
in tandem with other factors) did not meet this test;
the Claimant was held to his Part 36 o昀昀er, with the
court declining permission to withdraw it.
The next day (2 July 2025), the Claimant’s solicitors
made a Part 36 o昀昀er which included a retained lump
sum, a variable periodical payments order and an
order for provisional damages. This o昀昀er was made
on the basis of instructions given by the Claimant at
the RTM on 1 July 2025.
The Background
An application by the Claimant dated 29 July 2025,
seeking permission to withdraw his part 36 O昀昀er
made on 2 July 2025, came before Master Cook.
The background to the Claim is that the Claimant
alleged a delay in diagnosis of spinal tuberculosis
relating to neurological injury. It is admitted that
the Defendant, in breach of duty, failed to arrange
MRI scanning when the Claimant attended A&E in
August 2020.
On 8 July 2025 the Claimant’s solicitor wrote to the
Defendant to put them on notice that the Claimant
wished to withdraw the Part 36 o昀昀er made on 2 July.
However, that o昀昀er was accepted by the Defendant
on 22 July 2025.
The Claimant is now 35, and by reason of his injuries,
is essentially paraplegic. He su昀昀ers from neuropathic
pain, paraesthesia and burning sensations in his
back and lower limbs as well as bladder, bowel and
sexual dysfunction. The Claimant has had a syrinx
which according to the Claimant’s neurosurgery
expert, gives rise to a small but material risk of
future deterioration of the neurological function in
his upper limbs, as well as a small risk that he may
su昀昀er further deterioration to his bladder, bowels
and sexual dysfunction.
The Claimant wished to settle his Claim on the basis
of a lump sum damages award and an order for
provisional damages calculated on the basis that the
lump sum award would be equal in value to the lump
sum and variable periodical payments contained in
the Defendant’s Part 36 o昀昀er. The o昀昀er was made
in writing on 29 July 2025. The quantum trial was
vacated hence the matter fell to be considered by
Master Cook.
The CPR
The Defendant admitted several breaches of duty
in the Defence dated 6 June 2023, and judgment
was entered for the Claimant with quantum to be
assessed. A trial on quantum was scheduled for 2
October 2025.
The following rule, CPR 36.10, fell to be considered:
The settlement negotiations
(2) Where this rule applies—
An RTM was arranged for 1 July 2025, prior to which
all directions had been complied with, except for
experts’ discussions and joint reports. On the day
(a) if the o昀昀eree has not served notice of acceptance of
the original o昀昀er by the expiry of the relevant period, the
o昀昀eror’s notice has e昀昀ect on the expiry of that period; and
EXPERT WITNESS JOURNAL
(1) Subject to rule 36.9(1), this rule applies where the
o昀昀eror serves notice before expiry of the relevant period
of withdrawal of the o昀昀er or change of its terms to be less
advantageous to the o昀昀eree.
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DECEMBER/JANUARY 2025-2026
