Chinda v Cardiff & Vale University Health Board: when a change of mind cannot justify Part 36 withdrawal

The decision in Dr Ezebunwo Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB) provides important clarification on the limited circumstances in which a claimant may withdraw a Part 36 offer, particularly where issues of vulnerability are raised.

Background and procedural history

The claim arose from a delayed diagnosis of spinal tuberculosis following the defendant's admitted breach of duty in failing to arrange an MRI scan in August 2020. The 35-year-old claimant sustained catastrophic injuries, rendering him paraplegic with significant neuropathic pain and loss of function. Breach of duty and causation were admitted early in proceedings, leaving only quantum to be assessed.

Following a round table meeting on 1 July 2025, the claimant made a Part 36 offer the following day comprising a retained lump sum, variable periodical payments, and provisional damages. Within six days, the claimant sought to withdraw the offer, preferring instead a pure lump sum settlement. The defendant accepted the original offer on 22 July 2025, prompting the claimant's application for permission to withdraw under CPR 36.10(3).

The claimant's case for withdrawal

The claimant advanced two principal arguments. First, that Part 36 contains no restriction on what may constitute a "change of circumstances" and should be interpreted flexibly in line with the overriding objective. Second, that his medical vulnerability—specifically the impact of pain and fatigue on decision-making—amounted to a relevant circumstance. The suggestion was that instructions given on a "bad day" could be reconsidered when circumstances improved.

The claimant also emphasised several factors favouring withdrawal: prompt notification before acceptance, the lump sum amount being identical to the defendant's alternative RTM offer, and the revised provisional damages terms being more favourable to the defendant. The consent order vacating trial confirmed that quantum was agreed, with only the form of award remaining in dispute.

The defendant's response

The defendant acknowledged the claimant's pain and fatigue but submitted these were longstanding features of his condition, documented in expert evidence, and could not represent the radical change of circumstances required by authority. The Part 36 offer was made almost 24 hours after the RTM, providing ample opportunity for reflection and family consultation. The defendant had specifically preferred the periodical payment structure due to its advantages in cases involving impaired life expectancy—avoiding over or under-compensation whilst providing financial certainty for both parties.

Senior Master Cook's judgement

The application was refused. Senior Master Cook rejected the suggestion that the claimant's vulnerability materially affected the analysis. Whilst CPR 1.1(2)(a), as amended in 2021, requires consideration of measures enabling vulnerable parties to participate fully in proceedings, this focuses on participation and evidence-giving. No suggestion of vulnerability affecting the claimant's ability to instruct his solicitors had been raised before the hearing, and specialist personal injury solicitors should be presumed aware of their client's difficulties.

The court emphasised that Part 36 is a self-contained procedural code requiring certainty and predictability. The claimant did not lack capacity, and the offer was made by experienced solicitors on proper instructions. A change of mind cannot constitute a change of circumstances for the purposes of CPR 36.10(3). To hold otherwise would introduce unacceptable uncertainty into what must remain a dependable process.

The court distinguished between the claimant's original and revised offers, noting the defendant's legitimate preference for periodical payments given their advantages in cases involving impaired life expectancy. The authorities establish that there must be a significant alteration in the circumstances surrounding the case to justify departure from an offer's original valuation.

The decision reinforces the strictly limited discretion available to courts when dealing with Part 36 applications and confirms that personal circumstances affecting decision-making, even where a claimant is vulnerable, cannot override the need for certainty in settlement negotiations.