[2025] EWHC 2692 (KB)

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.