Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 51
upon the exchange of o昀昀ers at the RTM, as well
as time to re昀氀ect on advice he had received on
those o昀昀ers and to instruct his solicitors to delay
making any o昀昀ers until he had discussed the
case with his family.
As had been repeatedly recognised in the case
law, CPR Part 36 is a self-contained procedural
code: it is highly structured and prescriptive with
restricted discretion [36]. As such, Master Cook
accepted Counsel for the Defendant’s submissions
that a change of mind cannot amount to a change of
circumstances for the purpose of CPR r.36.10(3). To
昀椀nd otherwise would introduce “an unacceptable degree
of uncertainty” [38] into a code designed to ensure
predictability and certainty. As such, a signi昀椀cant
alteration in the circumstances surrounding a case
must be identi昀椀ed in order for an o昀昀eror to justify
the withdrawal of an o昀昀er. The Claimant would
therefore be held to his Part 36 o昀昀er.
The self-contained code strikes again:
avoiding an “unacceptable degree of
uncertainty”
Master Cook noted that it was not suggested to
him that the Claimant might be vulnerable in the
sense that his ability to instruct his representatives
might be adversely a昀昀ected. In fact, at all times the
Claimant was represented by a specialist personal
injury 昀椀rm who were presumably aware of his
di昀케culties, particularly given such di昀케culties
were referred to within the expert medical reports
obtained by the 昀椀rm. Master Cook remarked that [at
35]:
“
As identi昀椀ed by the Master himself, the case law is
couched in references to the self-contained nature
of the Part 36 regime. When practitioners are faced
with knotty problems arising out of Part 36 such as
these, it is always important to go back to basics, and
to consider the tenor and purpose of the regime –
after all, procedural self-containment is expressly
enshrined in CPR 36.1(1).
“In the circumstances, if there had been any such
real concern on their part I would have expected
the solicitors to raise the issue or at least ensure that
their client had su昀케cient space in which to give his
instructions to them. In my judgment this situation
is far removed from that in which directions under
paragraph 8 or special measures under paragraph 10
of the PD are required.”
www.gatehouselaw.co.uk
Mr. Nick Gillham
Mr. Steven Borland
Trauma and Orthopaedic
Surgeon
Consultant Trauma and
Orthopaedic Surgeon
BA BM BCh, MA, FRCS Ed, FRCS Ed Orth
MBChB MMedEd PGDip(Orth)
FRCS(Tr+Orth)
Full time NHS Consultant Trauma and Orthopaedic Surgeon, Horton General
Hospital, Oxford University Hospitals Banbury. Nick Gillham has more than 30
years experience as a consultant Trauma and Orthopaedic surgeon. He has
prepared medical reports for more than 25 years and undertaken medical
negligence reports for 10 years.
Mr. Steven Borland is a Consultant Trauma and Orthopaedic Surgeonwork at
Newcastle’s Royal Victoria Infirmary, which is the regional major trauma centre.
Having a particular interest in complex fractures and reconstruction, including
pelvis and acetabular fractures, complex periarticular fractures, and limb
reconstruction after trauma, including the use of specialist Ilizarov techniques
and circular frames.
Experience of giving evidence
Prepared medical reports for more than 25 years. Approximately 500 reports a
year. The majority of the cases are for the claimant with few (
