Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 50
(b) if the o昀昀eree serves notice of acceptance of the original
o昀昀er before the expiry of the relevant period, that
acceptance has e昀昀ect unless the o昀昀eror applies to the court
for permission to withdraw the o昀昀er or to change its terms—
The tenor of the examples given suggest that what is
envisaged is some radical alteration in circumstances
which would justify an o昀昀eror departing from the
valuation it had placed on the case when making the
o昀昀er it did.”
(i) within 7 days of the o昀昀eree’s notice of acceptance; or
(ii) if earlier, before the 昀椀rst day of trial.
Counsel for the Claimant drew the court’s attention,
inter alia, to the amended text of the overriding
objective (in particular, PD 1A) which focusses on
vulnerability. He also focussed on several other
factors, including excerpts from the Claimant’s
witness statement in which the Claimant described
his struggles with processing the settlement
negotiations due to fatigue.
(3) On an application under paragraph (2)(b), the court
may give permission for the original o昀昀er to be withdrawn
or its terms changed if satis昀椀ed that there has been a change
of circumstances since the making of the original o昀昀er and
that it is in the interests of justice to give permission.
It was not in dispute that, as the Defendant had
accepted the Claimant’s Part 36 o昀昀er before the
expiry date of the relevant period, that the Claimant
required the court’s permission under r.36.10(2)(b)
to withdraw the Part 36 o昀昀er. The court therefore
needed to consider whether there had been “a
change of circumstances” and whether it “[was] in
the interest of justice to give permission” for that
o昀昀er to be withdrawn.
Counsel for the Claimant submitted that there was no
injustice in permitting a seriously injured claimant
to change his mind about the form of award he
wished to accept (lump sum / PP) in circumstances
where alternative o昀昀ers had previously been made
by the defendant. He suggested that there were
multifarious factors which, when placed alongside
the Claimant’s medical vulnerability, would meet
the “change of circumstances” test. He submitted that
a person could be considered vulnerable by reason
of a factor (personal, situational / permanent or
temporary), which might a昀昀ect their ability to
participate in proceedings, and that this vulnerable
condition could amount to part of the relevant
circumstances. He also argued, amongst other
things, that the lump sum o昀昀er of £7,350,500
was identical to the lump sum o昀昀er made by the
Defendant at the RTM, and that in respect of
provisional damages – the o昀昀er dated 29 July 2025
was actually more generous to the Defendant than
the terms of the o昀昀er dated 2 July 2025.
A Wholly Di昀昀erent complexion?
The White Book commentary at 36.10.1 was
considered, including its reference to Wolverhampton
Hospitals NHS Foundation Trust [2015] 1 WLR 4659,
and Leggatt J’s remarks at [52]:
“
The test to be applied when the court is considering
whether to give a party permission to withdraw a
Part 36 o昀昀er is whether there has been a su昀케cient
change of circumstances to make it just to permit the
party to withdraw its o昀昀er. That test was set out by the
Court of Appeal in relation to payments into court in
Camper v Pothecary [1941] 2 KB 58 at 70. The Court
of Appeal gave as examples of such circumstances
“the discovery of further evidence which puts a
wholly di昀昀erent complexion on the case … or a change
in the legal outlook brought about by a new judicial
decision…” This test was adopted in relation to Part
36 payments by the Court of Appeal in Flynn v
Scougall [2004] 1 WLR 3069, 3079 at para 39. I see
no reason why the test should be di昀昀erent in relation
to a Part 36 o昀昀er and, as mentioned earlier, the
defendant’s application to withdraw its Part 36 o昀昀er
was made on the basis that this is the applicable test.”
In essence, he submitted that in reality – there was
no di昀昀erence between the Claimant’s original and
revised Part 36 o昀昀er.
Counsel for the Defendant submitted that the
reports of the neurosurgical, care, and physiotherapy
experts supported the proposition that the
Claimant is known to su昀昀er from fatigue and pain,
with good and bad days. She submitted that this was
not new and could not constitute a radical change
of circumstances: a change of mind could was not a
change of circumstances. Counsel for the Defendant
also placed emphasis on two key factors:
The case of Retailers v Visa [2017] EWHC 3606
(Comm) was also considered. At paragraphs [37][38] of the Retailers case it was noted that:
“
“37 . It is accepted that there must be more than a
change in the parties’ evaluation of known or existing
facts or evidence. There must be new evidence which
puts a wholly di昀昀erent complexion on the case or a
change in judicial outlook by a judicial decision, such
as that of the House of Lords in Benham v Gambling,
which changed the whole approach of the courts to
the measure of damages for loss of expectation of life
without actually changing the law. That was the
position in Cumper v Pothecary.
EXPERT WITNESS JOURNAL
47
•
During the RTM, the Claimant only made o昀昀ers
on the basis of a retained lump sum and indexed
periodical payments; no o昀昀ers were made on a
lump sum only basis. The Part 36 o昀昀er made the
following day was consistent with this.
•
The Claimant’s Part 36 o昀昀er was not made at
or immediately after the RTM on 1 July, which
昀椀nished at around 4:25pm. The o昀昀er was made
the following day at 3:42 by which time the
Claimant had ample time to rest and re昀氀ect
DECEMBER/JANUARY 2025-2026
