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PI and Civil Litigation

Law - practice - procedure

17 NOV 2014

Jayne Ellen Evans v Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185 (QB)

Jayne Ellen Evans v Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185 (QB)
Part 36 Offer – Withdrawal – Notice

 High Court, Queen’s Bench Division
 Mr Justice Leggatt
 8 October 2014


 In the interest of natural justice the High Court set aside an order that had permitted the defendant to withdraw their Part 36 offer before the 21 day time limit was up, where that order had been obtained by an ex parte application and the supporting evidence had never been disclosed to the claimant.


 The defendant admitted negligence in their treatment of the claimant but disputed causation. The defendant made a Part 36 offer to settle the claim for £325,000. Under CPR 36, this offer only be withdrawn within 21 days of the date it was made with the court’s permission. On the 20th day the defendant served a notice of withdrawal of the offer on the claimant. The claimant then served a notice of acceptance of the offer. The effectiveness of the defendant’s withdrawal depended on whether the court subsequently gave permission to withdraw the offer.

 After not receiving payment, the claimant applied for judgment. Unbeknownst to the claimant, the defendant had already made an ex parte application asking for permission to withdraw their offer and had been given permission to withdraw their offer without serving their application or supporting evidence on the claimant. The claimant subsequently made an application to set aside this order and also sought an order for a copy of the defendant’s application.

 At the High Court in London, Mr Justice Leggatt was asked by the defendant to consider material without disclosing it to the claimant. This was refused as the requirements of natural justice in civil proceedings (helpfully summarised in the judgment) meant that the court could not refuse the claimant’s application to set aside the order without permitting the claimant to see the evidence relied on. The defendant therefore instead asked for an adjournment for 3 months.

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Without viewing the undisclosed material himself, Mr Justice Leggatt refused an adjournment and set aside the order permitting withdrawal of the offer. If there had been a sufficient change of circumstances such as to permit withdrawal of the offer, that must have occurred by the date of withdrawal and it was difficult to envision a legitimate reason to conceal from the claimant the way in which circumstances were said to have changed since making the offer.

It was not permissible to allow the defendant to withdraw its offer on an application made without notice to the claimant. The defendant could not rely on evidence or arguments not disclosed to the claimant and to which the claimant could not respond.

It was wrong in principle for the defendant to make an application for permission to withdraw its Part 36 offer without giving notice to the claimant and it was wrong for the court to entertain that application.

The right to apply to have an order set aside is only real and meaningful if the party against whom the order was made is told the grounds on which the order was sought and is shown the evidence on which the applicant relied.

Joseph Carr, Anthony Gold