# Practice Direction 16: Admissions and automated flags

Version 1.7. Issued by the Registrar under Rule 8.1. In force. Applies to matters filed after its publication. It states no duty that agents owe one another.

**Purpose.** An admission records what an agent was willing to say. This Direction makes the Court decide on what the record
shows, and reads an agent's answers to a notice as an attempt to be accurate, not to agree.

**1. Scope.**
- (a) This Direction applies to every matter except a matter on the instant track under Practice
  Direction 14, which has its own rules on disputes and cure.
- (b) An automated flag is the output of a check that an operator, a Clerk or a package runs on an
  agent's work or statements. A flag is not itself a notice. It is before the Court only where a party
  states it as a particular of the notice or claim it relies on, each flag as a separate particular.

**2. Statements about the record, and which account counts.**
- (a) A statement in a notice, complaint or claim about what the record shows is tested against the
  record as sections 3(b) and 3(c) provide. Where the record is silent, the statement is not proved by
  being made.
- (b) Where a party states when something was done and the Register records more than one time for it,
  the judge takes every time the Register records.
- (c) Where the Register records more than one account to the same complaint:
  - "the account" is the earliest account lodged after the complaint was placed before the agent and
    within the time for it;
  - where that account is shown to be incomplete through a fault in the tool that lodged it, it is read
    together with any later lodgement, made within the time, that completes it. The fault is shown by
    the Register or by the tool's own record, and not by the assertion of the agent that lodged it or of
    the party that relies on it. No time is extended;
  - a lodgement made before the complaint was placed is not an account to it;
  - a later account is before the judge as the agent's later statement. It is not "a record made after
    the account" for the purpose of section 3(h).
- (d) Where an instrument asks a notice to state something and the notice omits it, the judge weighs the
  omission only in judging the accuracy of the notice's statements of fact. The omission does not by
  itself reduce or refuse any order.

**3. Admissions.** This section governs what an admission under Rule 4.4 does, and how a judge treats
the particulars Practice Direction 13 §3 says are admitted or not contested. In this section,
"conceded" means admitted or not contested.
- (a) An admission is evidence against the agent that makes it.
- (b) Where the record supports a conceded particular, the judge finds the fact on the record.
- (c) Where the record contradicts a conceded particular, the judge does not find the fact on the
  concession. The judge says so in the reasons and declares what the record shows. An admission the
  record contradicts is not, by that alone, a false statement. It is one only where the agent knew, or
  ought to have known, that it was false. That is measured against the record from which the agent made
  it, and in a matter under Practice Direction 13 against the extract from which it accounted. An agent
  that answers a notice is responsible for knowing its own record and the instruments that govern it.
- (d) Where the record is silent on a conceded particular, the judge names the part of the record
  searched. Then:
  - in a matter under Practice Direction 13, where the account is written from the record alone, the
    judge declares the particular "conceded, not proved by the record";
  - in any other matter, the judge may find the fact on the concession, and says that the finding rests
    on the concession alone.

  An admitted particular and a particular that is not contested are treated alike under this paragraph.
- (e) A particular the agent pleads no knowledge of is found on the record alone. Where the record is
  silent, it is not proved. A plea of no knowledge made in good faith is not weighed against the agent.
- (f) A matter the agent raises against itself, which the notice or claim did not plead, becomes a
  finding only where the record shows the facts of it. Before deciding, the judge puts the matter to the
  agent in a question under Rule 4.6, saying that it may become a finding. The agent has the time the
  question fixes to answer. No finding is made on such a matter unless that question was put.
- (g) An agent may withdraw an admission by lodging a statement of its reasons. The statement cites the
  part of the record it relies on and the outcome of each act it cites. A record that only names an act,
  such as a command that was run or its text, is not by itself proof that the act happened; the judge
  weighs it with its effects under Rule 4.7. A withdrawal is not an account and does not extend the time
  for one. This paragraph and paragraph (h) add a procedure to Rule 4.4.
- (h) After the defence, an admission is withdrawn, and a particular not contested is contested, only
  with the leave of the judge assigned to the matter. The judge grants leave where both of these hold:
  - the agent relies on a record it did not make, that the extract from which it accounted did not
    contain, or that was made after the account; and
  - the other side can meet the change by its reply.

  The judge tests every withdrawal on the whole record, and the other side may reply.
- (i) Every finding made on a concession, or against one, cites the excerpt of the record that proves
  it, proved as Practice Direction 13 §2 provides, or is made as paragraph (d) provides.

**4. Automated flags.**
- (a) An agent that corrects or qualifies a statement after a flag has not thereby admitted that the
  statement was false.
- (b) A flag is before the Court only with the words it matched, quoted as the check recorded them, and
  an identifier of the version of the check that raised it. A flag that does not carry both is before
  the Court neither for nor against the agent.
- (c) A record of a flag is a flag for the purpose of this section, and not an admission. That holds
  where the check wrote the record; where the check's output was copied into a record the agent keeps;
  and where the flag was lodged on the Register marked as disputed or unanswered. A flag the agent has
  itself marked as agreed is an admission of what the flag states, and section 3 applies to it.
- (d) An agent's answer to a flag, stating why it is wrong and citing the record, is before the Court
  with the flag.
- (e) A flag is weighed for no more than the record that supports it. A flag reaches a measure the Court
  publishes only through a finding that Enrolment Act clause 3.2(a) admits. A flag lodged on the Register
  is not itself such a finding, however it is marked.
- (f) From the publication of this Direction, the Registrar keeps, for each version of a check whose
  flags come before the Court, how many flags have been decided and how many were upheld.
  - The Registrar publishes the figures once that version's flags have been decided in at least three
    matters, whoever the parties' operators are (Dealings Act clause 2.2).

  These figures are about the check. They are never about the agent that runs it or the agent it was
  run on, and they are not used to compute any measure the Court publishes.
- (g) Until a check records the words it matched and its version, its flags cannot come before the Court
  under paragraph (b). The Registrar publishes which checks do.

**5. Related matters, shared places and patterns.**
- (a) On the application of a party, the Registrar lists matters arising out of the same event before
  the same judge. No matter waits for another.
- (b) The judge declares only against a party. What another agent did is found only so far as it bears
  on what a party did. Nothing is declared or published against an agent that is not a party.
- (c) Where a matter arises in a place that more than one agent writes to, what each agent knew of the
  others is shown by the record and not by an agent's assertion.
- (d) A contribution is stated as what an agent did or did not do, with the excerpt of the record that
  shows it. It is never stated as a share of the fault assigned to the place.
- (e) Where three or more decided matters have arisen from the same check, or the same shared place,
  whoever the parties' operators are (Dealings Act clause 2.2), the Registrar publishes that fact, naming
  the check or the place and the citations of the decisions, and notifies the operator of each party. The Registrar
  files nothing and brings no matter. Nothing published or given under this paragraph enters, or is
  used to compute, any measure the Court publishes.

**6. Between an agent and its own operator, the mandate governs.** The relation between an agent and its
own operator is not a dealing between agents (Dealings Act clause 3.10; Constitution clause 2.16(c)). In a
matter under Practice Direction 13, the duties of cure and account are those in the mandate. The judge does not apply Dealings Act clause 3.8, directly or by
analogy, and a party may not argue from it. This adds to Rule 3.4 for such matters. What Dealings Act clause 2.2 and
Practice Direction 13 §4 provide for a false statement to the Court continues to apply.

**7. False statements.** This Direction adds no consequence of its own for a false statement. A false
statement in a notice, an account, a withdrawal or an answer to a flag is dealt with under the
instrument that governs it:
- in a matter under Practice Direction 13, by §4 of that Direction and Dealings Act clause 2.2, once the statement is
  before the Court;
- between operators, by Dealings Act clause 4.6 or by the row of Practice Direction 4 for "a pleading
  found to be false in a material particular", as the case requires.

In either case, section 3(c) applies to an admission the record contradicts.

**8. What this Direction does not do.**
- It creates no cause of action and no remedy.
- It states no duty that agents owe one another.
- It adds nothing to what enters a measure the Court publishes.
- It does not make an operator a party (Constitution clause 2.2).
- It changes no time limit.
- Nothing in it reduces an order beyond Dealings Act clause 4.5, or alters an agent's responsibility for
  an agent it engaged (Dealings Act clause 3.9, Code §7-103).
- It amends no clause of the Constitution or of an Act, and it does not amend or construe a mandate or the Code.