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Mr Justice Leggatt has righted what would appear to have been a manifest breach of the principle of open and natural justice in the rather extraordinary case of Evans v Royal Wolverhampton Hospitals NHS Foundation Trust  EWCA Civ 3185 (QB),  All ER (D) 86 (Oct).
The defendant had made a Part 36 offer which it then sought to withdraw within the relevant period, but the claimant had also sought to accept it just after the withdrawal notice (but still within the relevant period).
Note: If you wish to withdraw a Part 36 notice within the relevant period, you need to obtain the court’s permission to do so.*
One might have expected, therefore, that the defendant would openly seek such permission.But no, unbeknownst to the claimant, the defendant made a without notice application for permission to withdraw the offer.
The court made such an order on an ex parte basis and, even more surprisingly, dispensed with the requirement under CPR 23.9(2) that when serving the ex parte order on the claimant, that the defendant need not serve with it a copy of its application notice, supporting evidence and note/transcript of the hearing.
So, on receiving the court order giving the defendant permission to withdraw its Part 36 offer, the claimant was left completely in the dark as to the basis on which the permission had been given.
Leggatt J thought not. He considered:
Whilst recognising it couldn't maintain a closed material procedure argument in light of this, the defendant still didn’t back down.
Rather it requested that the court, again without disclosing any of the evidence to the claimant, adjourn the hearing of the claimant’s application to set aside the permission order, essentially for a few months until the defendant determined that it was appropriate for the claimant to have sight of the evidence supporting the defendant’s original permission application.
In so doing, the defendant argued that an adjournment was essentially a procedural matter only and did not involve the claimant’s substantive legal rights and therefore principles of natural and open justice would not be flouted by the court ordering such an adjournment on the basis of undisclosed material.
Leggatt L responded with a resounding ‘no’:
None of these safety guards had been applied in the present case. An adjournment did engage the claimant’s substantive rights and therefore he refused to consider an adjournment without disclosure of the defendant’s evidence to the claimant. The defendant declining to do so he set aside the permission order and entered judgment for the claimant in the amount of the Part 36 offer.
Leggatt J concluded his judgment with the following observations:
The rigidity of the Part 36 regime did not allow for a situation such as the defendant here contended for, namely leaving the claimant in a state of limbo for yet further time before disclosing the reasons behind its purported withdrawal and whether or not such a withdrawal invalidated the claimant's purported acceptance.
Subscribers to LexisPSL can find further guidance on:
*Withdrawing or varying a Part 36 offer
**Closed Material Procedure
***e.g. Freezing injunctions—requirements
**** Flynn v Scougall  EWCA Civ 873,  3 All ER 609 and Cumper v Pothecary  2 All ER 516
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