Master Cook’s judgment in Chinda v Cardiff & Vale University Health Board EWHC 2696 (KB) provides an important clarification on the strict limits surrounding the withdrawal of Part 36 offers once accepted. This case highlights that a mere change of mind, even by a vulnerable claimant suffering severe neurological injury, does not meet the threshold for “change of circumstances” under CPR 36.10. Upholding the principle of certainty in settlement negotiations, the court refused permission to withdraw an offer accepted within the relevant period. The ruling emphasises the need for careful client instructions during negotiations, especially in complex clinical negligence claims.
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Case Background
The claimant suffered paraplegia following a negligent delay in diagnosing spinal tuberculosis when attending A&E in August 2020. Liability for breach and causation was admitted by Cardiff & Vale University Health Board, leaving damages quantum to be determined. At a round table meeting (RTM) on 1 July 2025, the claimant indicated a desire to settle on a provisional damages basis, but the defendant lacked authority to consent to those terms immediately. The claimant’s solicitors made a Part 36 offer the following day, including a lump sum, variable periodical payments, and provisional damages. The claimant then sought to withdraw this offer on 8 July, but the defendant accepted it on 22 July. The claimant applied to court for permission to amend the offer to exclude periodical payments.
Legal Rules Governing Part 36 Offer Withdrawal
CPR 36.10 sets out that where an offer has been accepted within the relevant period, the offeror can only withdraw or change its terms with court permission, which will be granted only if there has been a “change of circumstances” since the offer was made and it is in the interests of justice to do so. CPR 36.10 states:
“The court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.”
Examples of such changes may include new evidence or a shift in legal principles – not a mere reassessment or regret. The policy underpinning Part 36 enshrines certainty and predictability in civil litigation settlements, especially critical in personal injury cases involving provisional damages or periodical payments.
The full text can be found on the Ministry of Justice’s CPR Part 36 rules. See LEXLAW’s guide to Part 36 offers and costs consequences.
Court’s Decision and Reasoning
Master Cook refused the claimant’s application to withdraw or amend the Part 36 offer. The court found that the claimant’s later change of mind did not constitute a sufficient change of circumstances. Although the claimant was vulnerable due to severe injury and fatigue at the RTM, there was no evidence that this impacted his ability to instruct specialist personal injury solicitors adequately. Importantly, vulnerability under CPR Part 1 was considered but found not to alter the application of Part 36’s strict requirements where proper legal advice was given.
The court emphasised that allowing withdrawal on these grounds would undermine the certainty the Part 36 regime seeks to maintain. Furthermore, the defendant’s periodical payments offer was held to be more advantageous than the lump sum alternative, providing financial certainty tailored to the claimant’s life expectancy.
The full judgment is accessible via the Bailii database.
Practical Part 36 Advice for Litigants
- Claimant representatives should ensure clients understand the finality of Part 36 offers and seek additional time for consideration, especially for vulnerable clients at RTMs or mediations.
- Defendants should promptly acknowledge and accept offers where appropriate, taking care not to allow undue delays or uncertainty after acceptance.
- Both sides must keep clear records of negotiation instructions and ensure clients receive appropriate advice from experienced solicitors.
- Vulnerability should be flagged early to courts to consider procedural adjustments under Practice Direction 1A.
- Parties should recognise the inherent financial predictability benefits of periodical payments in clinical negligence claims, often more advantageous than lump sums when life expectancy is reduced.
For more on negotiation strategy, read about strategic Part 36 offers and pre-action protocols.
FAQ: Part 36 Offer Withdrawal
1. I made a Part 36 offer but have changed my mind. Can I withdraw it?
It depends on timing. If the defendant has not yet accepted within the relevant period (usually 21 days), you can withdraw freely. However, once acceptance is served, withdrawal requires court permission under CPR 36.10. Master Cook’s ruling in Chinda v Cardiff confirms that a mere change of mind, even post-RTM, will not suffice; you must demonstrate a genuine change of circumstances and convince the court that justice favours withdrawal. See our litigation guide.
2. What counts as a “change of circumstances” under CPR 36.10?
A change of circumstances is material and objective, not subjective regret. Examples include receipt of new expert evidence, adverse case law developments, or factual shifts affecting valuation. Fatigue at a round table meeting, later reflection, or family advice do not qualify, as Chinda confirms. The test is strict to preserve Part 36’s core purpose: certainty in negotiations.
3. I am a vulnerable party with severe injuries. Does that help me withdraw a Part 36 offer?
Vulnerability is a consideration under CPR Part 1 and may influence procedural steps before an offer is made (e.g., allowing overnight review). However, Chinda shows that vulnerability alone does not override CPR 36.10’s requirements once an offer is accepted and specialist solicitors have properly advised you. Courts will ask whether the vulnerability impacted your ability to receive and act on legal advice; if your solicitors managed your instructions soundly, withdrawal is unlikely.
4. How long do I have to apply for permission to withdraw after the defendant accepts?
5. If I withdraw a Part 36 offer, can I serve a new one on better terms for me?
Yes but it suggests your first offer was flawed and your litigation case may benefit from a second opinion. A new offer would restart the 21-day acceptance period and reset your costs protection. Courts may scrutinise repeated amendments as gaming the system. Chinda teaches that your first offer should reflect genuine instructions; shifting positions invites judicial scepticism and risks adverse costs orders.
6. What is the difference between periodical payments and a lump sum in clinical negligence, and why did the court prefer periodical payments in Chinda?
Periodical payments (also called structured settlements) provide ongoing income tied to inflation and the claimant’s needs, whereas a lump sum is a one-off capital award. In Chinda, the defendant’s periodical payments offer was deemed more advantageous given the claimant’s limited life expectancy; it ensured financial certainty and protected against investment risk. Lump sums suit claimants with normal life spans or strong investment expertise; periodical payments suit those with reduced prognosis or complex care needs. Courts weigh both when assessing Part 36 offers.
7. My solicitors advised me during the RTM but I was exhausted. Can I claim they gave poor advice to justify withdrawal?
It depends on exactly what happened. Courts would tend to presume specialist personal injury solicitors are alert to clients’ vulnerabilities and fatigue during lengthy meetings. Chinda confirms that even a “vulnerable” claimant cannot escape Part 36’s finality if the solicitor-client relationship was functional. You would need to prove clear breach of duty by your solicitors.
8. If I do get permission to withdraw, what happens next?
9. Should I serve a Part 36 offer at an RTM or shortly after?
Best practice: discuss settlement parameters at the RTM without formal offers, then serve a written Part 36 offer a day or two later after you have reflected and obtained client instructions in writing. This gives time for proper consideration and reduces regret claims.
10. What should vulnerable claimants do to protect themselves during RTMs?
Request a break or overnight adjournment before agreeing final terms, especially if you have suffered serious injury. Ensure your solicitor documents your instructions clearly in writing. Ask for a written summary of any offer before it is served formally. Understand that Part 36 offers are binding once made; treat them as final commitments, not trial runs.
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