The Supreme Court Costs Office
No.27 of 2004
Flynn v Scougall
13 July 2004
Court of Appeal (Brooke, Potter and May LJJ)
This was a personal injury case in which, based on the medical evidence then available to them, the defendants made a payment into court of £24,500 a few days before receiving their own consultant's report which in their opinion meant that they had paid into court more than was necessary to satisfy the claimant's claim. They therefore applied to withdraw the payment into court before the 21 days within which the Claimant could accept it had expired, but, within that period, but before the Defendants application could be heard, the Claimant purported to accept the original Part 36 payment into court.
The Court of Appeal held that there was jurisdiction for the court to allow a defendant to withdraw or reduce a Part 36 payment in, even after the claimant had given notice of acceptance 'and where necessarily the claimant's acceptance was not prompted by the defendant's application'.
However, the court reversing the County Court Judge held that on the facts the claimant was entitled to accept the £24,500, and the defendant was not entitled to withdraw or reduce that payment in. The gist of the decision is contained in paragraph 42:
'42.The defendant chose to make the Part 36 payment in before Mr Pinder's report arrived. In doing so, she secured the advantage of an earlier payment into court and took the risk that Mr Pinder's report might improve her evidential position. The fact that it may have done so was not, in my view, even close to a sufficient change of circumstance, any more than was the second surveyor's report in Manku v Serrhra. It was not based on the discovery of new evidence nor a change in legal outlook. Rather, the defendant was relying on a further review of available information by a fresh expert. I do not consider that the defendant has shown that she should in justice be permitted to reduce her Part 36 payment so as to deny the claimants otherwise unfettered right to accept the full payment in within 21 days.'