Dr Ezebunwo Chinda v Cardiff & Vale University Health Board

By application notice dated 29 July 2025 the Claimant seeks permission to withdraw his Part 36 Offer made on 2 July 2025. The application is supported by the witness statement of the Claimant and the witness statement of his solicitor Elise Burvill, both dated 29 July 2025. The Claimant’s application is opposed.

The claim arises from a delay in a diagnosis of spinal tuberculosis resulting in neurological injury. It is admitted that the Defendant, in breach of duty, failed to arrange MRI scanning when the Claimant attended the Emergency Department on 4 August 2020.

The Claimant is now 35 years of age. By reason of his injuries, he is essentially paraplegic. He is unable to walk or stand. He has no movement in both legs. He is wheelchair bound.

The Claimant suffers from significant neuropathic pain, paraesthesia and burning sensations in his back and lower limbs. He also suffers from bladder, bowel and sexual dysfunction.

The Claimant has suffered a syrinx which, according to Mr. Tizzard (the Claimant’s neurosurgery expert), gives rise to a small, but material risk, that he may in future suffer a deterioration of in the neurological function affecting his upper limbs. There is also a small risk that he may suffer a further deterioration in his bladder, bowel and sexual dysfunction.

A letter of Claim was sent on 8 March 2022. A letter of response was sent on 17 November 2022 in which an early admission of breach of duty was made. Proceedings were issued on 31 March 2023 and Particulars of Claim were served on 12 April 2023.

The Defendant’s admission of breach of duty was repeated in the Defence dated 6 June 2023, in addition further admissions of causation were made namely:

Judgment was entered for the Claimant on the basis of the admissions made in the Defence for quantum to be assessed. A trial on quantum was set down to take place on 2 October 2025.

A round table meeting (RTM) was arranged for 1 July 2025. It took place at the offices of the Claimant’s solicitors and was attended by solicitors and counsel for both parties. Prior to the RTM all directions had been complied with, save for experts’ discussions and joint reports.

At the RTM, offers were exchanged but no settlement was reached because the Claimant wished to settle on a provisional damages basis. The Claimant had not previously intimated such a claim and not surprisingly the Defendant did not have authority to settle on that basis.

At the end of the RTM it was agreed that the Claimant would propose terms, including as to provisional damages, on which he would be prepared to settle the claim.

On the day following the RTM (2 July 2025) the Claimant’s solicitors made a Part 36 offer which included a retained lump sum, a variable periodical payments order and order for provisional damages. This offer was made on the basis of instructions given by the Claimant at the RTM on 1 July 2025.

On 8 July 2025 the Claimant’s solicitor wrote to the Defendant’s solicitor to put the Defendant on notice that the Claimant wished to withdraw the Part 36 offer made on 2 July 2025. However the offer was accepted by the Defendant 22 July 2025.

The Claimant now wishes 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 offer. The offer was made in writing on 29 July 2025.

By consent the trial on quantum has been vacated and the parties instead wish me to determine this application.

In the circumstances the court is concerned with CPR 36.10, which provides:

(1)

Subject to rule 36.9(1), this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree.

(2)

Where this rule applies—

(a)

if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and

(b)

if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms—

(i)

within 7 days of the offeree’s notice of acceptance; or

(ii)

if earlier, before the first day of trial.

(3)

On an application under paragraph (2)(b), 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.

It is common ground that the Defendant has accepted the Claimant’s Part 36 offer before the expiry date of the relevant period and that in the circumstances the Claimant requires the court’s permission under r 36.10(2)(b) to withdraw the Part 36 offer. The court must therefore consider whether there has been a “change of circumstances” and that “it is in the interests of justice to give permission” for the part 36 offer to be withdrawn.

The note in the White Book at 36.10.1 states that r 36.10 (3) states in general terms the approach the court should take and that the provision introduced in 2015 reflects the guidance given in previous decided cases. There is a reference to Wolverhampton Hospitals NHS Foundation Trust [2015] 1 WLR 4659 where Leggatt J stated at paragraph 52:

“The test to be applied when the court is considering whether to give a party permission to withdraw a Part 36 offer is whether there has been a sufficient change of circumstances to make it just to permit the party to withdraw its offer. 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 different 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 different in relation to a Part 36 offer and, as mentioned earlier, the defendant’s application to withdraw its Part 36 offer was made on the basis that this is the applicable test.”

Whilst Mr Kellar KC suggested that I should treat some of the observations in the older cases with a degree of caution and instead focus on the clear words of the CPR, I note that in Retailers v Visa [2017] EWHC 3606 (Comm) Sir Jeremy Cooke made clear that the rule did reflect the earlier authorities, see paragraph 29. The judge then at paragraph 32 summarised the principles to be derived from the authorities:

“(i)

the object is to encourage reasonable settlement of actions with consequent saves in cost to the parties and to the state in terms of court time.

(ii)

the earlier such settlement takes place the better and the rules encourage this, because the earlier the offer, the earlier the expiry of the relevant period, with the automatic cost consequences which follow from an early offer under the terms of CPR 36.13(1) if there is an acceptance, and 36.17(3) if it is declined.

(iii)

any settlement, however late, is to be encouraged if it results in savings of costs and court time.

(iv)

Part 36 is a self-contained procedural code which contains a highly structured and highly prescriptive set of rules with limited and restricted discretion given to the court.

(v)

certainty and predictability is of vital importance in construing such a procedural code. Parties need to know where they stand when offers are made or considered.

(vi)

the underlying rationale for the setting of a relevant period is to give the offeree sufficient opportunity to consider the offer free from the fear that it might be withdrawn at any moment. Prior to trial, 21 days is considered sufficient. At trial, the whole duration of the trial is specified, though it is plain that some trials might last only one or two days whilst others may last months, as in the current case.

(vii)

the need for the court's permission for acceptance in a number of situations, including the situation where a trial is in progress, or for permission to withdraw an offer in the time allowed by the rules for consideration of the offer by the offeree is to give the court a monitoring function so it can release an offeror from its offer where there is a sufficient change of circumstances to make it unjust for the offeror to be held to that offer.”

At paragraphs 37 and 38 of his judgment the judge said:

“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 different 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.

38.

The tenor of the examples given suggest that what is envisaged is some radical alteration in circumstances which would justify an offeror departing from the valuation it had placed on the case when making the offer it did.”

Lastly, Mr Kellar KC referred me to the recently amended text of the overriding objective and in particular to PD 1A.

“Vulnerability

1.

The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.

2.

Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.

3.

A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.

4.

Factors which may cause vulnerability in a party or witness include (but are not limited to)—

(a)

Age, immaturity or lack of understanding;

(b)

Communication or language difficulties (including literacy);

(c)

Physical disability or impairment, or health condition;

(d)

Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);

(e)

The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case);

(f)

Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));

(g)

Social, domestic or cultural circumstances.

5.

When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—

(a)

understand the proceedings and their role in them;

(b)

express themselves throughout the proceedings;

(c)

put their evidence before the court;

(d)

respond to or comply with any request of the court, or do so in a timely manner;

(e)

instruct their representative/s (if any) before, during and after the hearing; and

(f)

attend any hearing.

6.

The court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result.

7.

If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective. This may include concealing the address and/or contact details of either party or a witness for appropriate reasons.

8.

Subject to the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering ground rules before a vulnerable person is to give evidence, to determine what directions are necessary in relation to—

(a)

the nature and extent of that evidence;

(b)

the conduct of the advocates and/or the parties in respect of the evidence of that person;

(c)

whether one or more special measures and/or any other support should be put in place for that person;

(d)

any duty or power of the court under any enactment or its inherent jurisdiction to prohibit, limit or modify cross-examination of or by a vulnerable witness or to appoint a legal representative to conduct a cross-examination.

9.

Before ordering any ground rules, special measures or other support, the court must consider views expressed by a party or witness about participating in the proceedings or giving evidence

Special Measures

10.

Special measures may include, but are not limited to:

(a)

preventing a party or witness from seeing another party or witness by the use of screens;

(b)

allowing a party or witness to give evidence remotely by video conference;

(c)

hearing a party or witness’s evidence in private;

(d)

dispensing with the wearing of wigs and gowns;

(e)

admitting pre-recorded video evidence;

(f)

questioning a party or witness through an intermediary; and

(g)

using a device or other aid to help a party or witness communicate.”

Mr Kellar KC begun by identifying the change of circumstances he relied upon. He started by referring me to paragraphs 11, 17 and 22 of the Claimant’s witness statement:

“11.

I found the whole day really quite overwhelming and exhausting. On reflection, as a result of my fatigue and pain, I was unable to focus, think clearly and fully consider the instructions I provided to my solicitors on the day.”

“17.

In the meantime, I met with Ed Tomlinson (author of the Periodical Payment Suitability report) and Steven Balmer (IFA) via video call on 14 July 2025. It was a useful initial discussion about my options and Steven Balmer met with me at home the following day (15 July) to go through things in more detail. My intention was to obtain independent advice and make a fully informed decision before instructing my legal representatives to make any further offers.”

“22.

I appreciate that it will be frustrating to my legal team and to the Defendant that I have changed my mind following the settlement meeting and I am sorry about that. I was exhausted on the day and once I got home and started to think through the vast sums of money that we were referring to, I wanted to speak to my brother and seek his opinion. I think it is normal for people to seek opinions and advice from their family and friends when dealing with something so significant, but I cannot do that in the usual way. All of my family live abroad and so I came to the settlement meeting alone and arranged a call with my brother afterwards. This is when I really processed it for the first time.”

Mr Kellar KC then pointed to the Claimant’s reasons for preferring a lump sum payment set out in paragraph 14 of his witness statement:

Mr Kellar KC acknowledged that the change of circumstances he was putting forward in this case was of a very different nature to that set out in cases such as Camper v Pothecary however, he submitted that:

In relation to the broader interests of justice Mr Kellar KC identified five factors, which in his submission, favoured permitting the Claimant to withdraw his offer and substitute his alternative offer dated 29 July 2025:

Mr Kellar KC suggested that when the above factors were placed alongside the Claimant’s medical vulnerability the “change of circumstances” test was met. He pointed out that a person could be considered vulnerable by reason of a factor which could be personal or situational, permanent or temporary which may affect their participation in proceedings. In other words the Claimant’s condition could amount to part of the “relevant circumstances. The Claimant gave his instructions to settle on a bad day and came to give a change of instructions on a good day. The change from bad day to good day was therefore a change in circumstances which the court could and should take into account.

On behalf the Defendant Ms Watson KC emphasised that while the Defendant is sympathetic to the fact that the Claimant's condition causes him to suffer from pain and fatigue, he has not identified any new evidence or legal authority which puts a different complexion on his case. The change relied upon here is simply a change of mind by the Claimant.

Ms Watson KC accepted that the reports of the neurosurgical, care and physiotherapy experts supported the proposition that the Claimant is known to suffer from pain and fatigue and to have good days and bad. However she submitted this was not new and could not represent a radical change of circumstances of the kind envisaged in Evans v Wolverhampton and Retailers v Visa. It is clear from the authorities, a change of mind cannot constitute "a change of circumstances" of the nature required by rule 36.10(3).

Ms Watson KC drew two particular factors to my attention:

Ms Watson KC explained these factors formed part of the Defendant’s consideration of the Claimant’s Part 36 offer. The Defendant concluded that this form of settlement was more advantageous than the lump sum offer made in the alternative at the RTM. As is well recognised, a Periodical Payment Order has the advantage of avoiding over or under compensation in cases like this where the Claimant's life expectancy has been impaired by his injury and provides financial certainty and predictability for both parties. She submitted that these factors weighed heavily in the balance when the Defendant accepted the Claimant's offer and they are not outweighed by limiting the claim for provisional damages to a deterioration in upper limb function only.

In the circumstances, Ms Watson KC submitted that to allow the Claimant to withdraw his offer on the basis of a change of mind would significantly undermine the certainty and predictability underlying Part 36 and would deprive the Defendant of the important protection from withdrawal of an offer within the relevant period.

Although not expressly contained in his written skeleton argument, Mr Kellar KC placed considerable emphasis in his oral submissions on the Claimant’s status as a vulnerable party and the consequent need for me to take that fact into account when interpreting and exercising my power under CPR part 36 as required by CPR r 1.2.

CPR r.1.1(2)(a) was amended by the Civil Procedure (Amendment) Rules 2021 (SI 2021/117) as from 6 April 2021. This amendment, was introduced as a result of the Civil Justice Council’s report, Vulnerable Witnesses and Parties within Civil Proceedings  added reference to the need to ensure all parties and witnesses can participate fully in proceedings and give their best evidence. Its purpose was intended to ensure that “dealing with cases justly” takes proper account of the need to consider any measures that may facilitate all parties contributing effectively to proceedings. It is an extension of the principle of equality of arms.

It is important to note that the emphasis is on participation in proceedings and the giving of evidence by vulnerable people and it is important to note that by paragraph 6 of PD 1A, the court, with the assistance of the parties, should try to identify vulnerability of parties at the earliest possible stage of proceedings. At no point before the hearing before me was it suggested on behalf of the Claimant that he might be vulnerable in the sense that his ability to instruct his representatives might be adversely affected.

At all times the Claimant was represented by specialist personal injury solicitors who should be presumed to be aware of his difficulties, particularly as they were referred to in the expert medical evidence obtained by them. 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 sufficient 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.

As has been repeatedly recognised in the cases, CPR Part 36 is a self-contained procedural code which contains a highly structured and highly prescriptive set of rules with limited and restricted discretion given to the court, and as such certainty and predictability is of vital importance when applying these provisions. Parties and their advisors need to know where they stand when offers to settle are made or considered.

The Claimant does not assert that he lacked capacity to make his decision. The part 36 offer was made by solicitors acting on his behalf.

In the circumstances I accept Ms Watson KC’s submission that there has been a change of mind by the Claimant and that a change of mind cannot amount to a change of circumstances for the purpose of CPR r36.10 (3). To hold otherwise would be to introduce an unacceptable degree of uncertainty into what should be a certain process.

In my judgment the cases of Cumper v Pothecary and Retailers v Visa correctly identify that there must be some significant alteration in the circumstances surrounding the case which would justify an offeror departing from the valuation it had placed on the case when making the offer.

I do not accept Mr Kellar KC’s submission that in reality there is no difference between the Claimant’s original and revised Part 36 offer. In this case the Defendant concluded, after proper reflection, that a periodical payment settlement was more advantageous than the lump sum offer made in the alternative at the RTM. It is well recognised, a Periodical Payment Order has the advantage of avoiding over or under compensation in cases like this where the Claimant's life expectancy has been impaired by his injury and provides financial certainty and predictability for both parties.

In the circumstances the Claimant must be held to his Part 36 Offer and I decline to give him permission to withdraw it.