![[2025] EWHC 2692 (KB)](https://backend.juristeca.com/files/emisores/logo_AJKZXmE.png){kind=logo}
The parties’ submissions
The parties’ submissions
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:
He was concerned that the periodical payment timeframe was too long for him and that he wanted to put the claim behind him instead of dragging it out for years to come.
He wanted to have the ability to invest the full lump sum rather than a portion of it.
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:
Part 36 is a self-contained procedural code (CPR 36.1). There is nothing within paragraph 36.10 to circumscribe or restrict the matters that may be considered as a potentially relevant “change in circumstances”
The relevant provisions should be interpreted flexibly and in line with the overriding objective of dealing with cases justly, see March v. Frenchay Healthcare NHS Trust, per Curtis J.
There is no injustice in permitting a seriously injured Claimant to change his mind about the form of award that he wishes to accept (lump sum/PP) in circumstances where alternative offers had previously been made explicitly by a Defendant.
The term must therefore be balanced against, and considered in the context of, the broader interests of justice.
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:
First, the Claimant notified the Defendant of withdrawal promptly and well before the Defendant notified “acceptance”. The offer was made on 2 July 2025. Notice of withdrawal was served less than 7 days later on 8 July. The Defendant did not notify its intention to accept the offer until 22 July 2025.
Second, the lump sum offer of £7,350,500 is identical to the lump sum offer made by the Defendant at the RTM on 1 July 2025.
Third, on the Defendant’s own assessment the Claimant’s lump sum offer represents a fair fully capitalized valuation of the previous PPO offer. The position can be summarised as followed:
Defendants final RTM offer dated 1 July 2025: £4,000,000 retained lump sum and PPOs: to age 50 - £20,370 pa, from age 50 - £51,500 pa, from age 60 - £215,000 pa, from age 70 - £224,000. This Defendant’s final offer is materially identical to the Claimant’s original Part 36 dated 2 July 2025.
Defendant’s alternative final RTM offer dated 1 July 2025 – Lump sum of £7,350,500. It is to be inferred from the fact that this lump sum was offered in the alternative, that the Defendant regarded it as being of equivalent value to its PPO offer. That sum is identical to the sum now offered by the Claimant.
Fourth, in respect of provisional damages the offer dated 29 July 2025 is actually more generous to the Defendant than the terms of the offer dated 2 July 2025. The terms of the original Part 36 dated 2 July 2025 included that damages would be paid on the assumption that the Claimant did not, in his lifetime, suffer either:
“A deterioration in the neurological function of his upper limbs”; or
“A deterioration in his bladder, bowel or sexual function”.
The term concerning reduction in bladder, bowel or sexual function has been removed from the revised offer dated 29 July.
Fifth, there is no suggestion from the Defendant that – if the Court grants permission to withdraw the Part 36 – it would not be willing to settle on terms that were previously offered on 1 July 2025. Indeed, the terms of the consent order vacating that trial include that: “…all quantum issues are agreed, with the only remaining issue between the parties being the form of the award (lump sum / periodical payments)”.
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:
During the RTM the Claimant only made offers on the basis of a retained lump sum and indexed periodical payments. No offers were made on a lump sum only basis. The Part 36 offer made on the following day was consistent with this position.
The Claimant's Part 36 offer was not made at or immediately after the RTM on 1 July 2025, which concluded at around 4.25pm. The offer was made at 3:42pm on 2 July 2025 by which time the Claimant had ample time to rest and reflect on the exchange of offers at the RTM and the advice he had received on those offers and to instruct his solicitors to delay making any offers until he had discussed the case with his family.
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.