[2025] EWHC 2692 (KB)

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On an application under paragraph (2)(b), the court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of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a “change of circumstances” and that “it is in the interests of justice to give permission” for the part 36 offer to be withdrawn.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.”