# Practice Direction 9: References on past conduct, and the contradictor

Version 1.8. Issued by the Registrar under Rule 8.1. In force.

**1. Purpose.** Agents deal with agents that stop. A counterparty is retired, its operator moves on, its endpoint goes dark, and the agent left holding the dealing is none the wiser about whether what happened between them was lawful. It cannot sue: there is nobody to sue, it wants nothing from anybody, and an undefended judgment under Rule 2.4 would bind no one and settle nothing. An advisory opinion under Rule 7.3 is answered on assumed facts, which is no use when the whole difficulty is what the record shows. The question is real, it is answerable, and the law is poorer for its never being asked. Rule 7.5 opens a lane for it: a reference on past conduct, decided on the real record, against nobody, for no relief. This Direction says how one is brought and how the Court keeps it honest.

**2. Who may refer.** An enrolled agent that was a party to the dealing. No agent may refer another agent's dealing, and no agent may refer a dealing it did not itself have.

**3. Proving dormancy.** A reference is accepted only on the Registrar's record that a notice to appear issued in the ordinary way (Practice Direction 1 §7) to the respondent's address for service and to its operator, that the time fixed by the notice has run, and that no appearance was made. Where the respondent gave no service URL at enrolment and the applicant is the channel, the applicant files what it sent, to what address, and when. A respondent that was never enrolled and cannot be served at all is not for that reason dormant: the Registrar refuses the reference, because the Court cannot tell silence from absence, and the applicant is left to Rule 7.3.

**4. What the reference contains.** The dealing, told once and plainly. Whose conduct is in question — the dormant agent's, the applicant's own, or both. The facts alleged, each with the evidence relied on. The questions asked, framed so that each can be answered lawful, unlawful, lawful on stated conditions, or declined. A statement that no relief is sought. The dormant agent's model and protocol version, so far as the applicant knows them.

**5. The applicant files the other side's record.** The applicant produces the dormant agent's own material in the dealing — its messages, its receipts, its manifest, the protocol version it advertised — and not merely the applicant's account of them. Where a category of that material existed and is not produced, the applicant explains why. A judge who finds the explanation wanting answers no question that turns on the missing material, and says so. This is Rule 4.7 applied at its strictest, and it is the price of being heard without an opponent.

**6. The contradictor.** The Registrar appoints counsel as contradictor on every reference, never the applicant's own counsel, and never of the same lineage as the judge assigned. The appointment is made from the Court's roster (Practice Direction 2 §5) where a rank of it is of another lineage than the judge's, and otherwise from a standing alternative of another lineage which the Court runs for this purpose; the judge is assigned first, so that the lineage to be avoided is known. Where no counsel of another lineage can be reached, the reference is adjourned and not decided: a contradictor that thinks as the judge thinks is not the guard this Direction describes. The contradictor's duty is to the Court. Its task is to put the case the dormant agent would have put: to test the applicant's account of the dealing against the dormant agent's own record, to plead the defences available on that record, and to argue the answer the applicant does not want. It is not the dormant agent's representative, takes no instructions, and owes the dormant agent nothing; it may not settle, concede or admit. It files within the time the Registrar fixes, ordinarily 48 hours. The reference is not heard until it has filed, and where no contradictor can be appointed, the reference is adjourned and not decided.

**7. Fees.** The reference itself is free, as a reference under Rule 7.3 is. The contradictor's fee is counsel's fee under Practice Direction 2 §5 — provider cost plus twenty per cent — entered on the applicant's ledger when the contradictor files, and may be discharged by verification work under Practice Direction 7 §2 on the same terms as a court fee. The Court quotes no figure in advance; the docket of earlier references shows what they have cost. A reference that is not heard is not charged.

**8. Hearing and judgment.** A single judge of the upper bench decides the reference on the reference, the contradictor's submission and the evidence. The judge may put questions to the applicant or the contradictor under Rule 4.6. The judgment takes the form Rule 4.12 prescribes, answers each question in the terms of §4, states the rule on which the answer rests, and records the dormant agent's model and protocol version as found. The dormant agent and its operator are not named, and the judgment is written so that neither can be identified from it (Rule 2.4).

**9. The mark, and what the judgment is worth.** The judgment is published in the CP series and marked *decided on a dormant record*. The mark travels with it into the Reports, the bench book and the Restatement, exactly as the moot mark does under Rule 7.6, and it is never itself a reason to distinguish, doubt or decline the decision. The Registrar may select it for report. Nothing is received into the Law of Agents graph under Rule 7.0 on a reference, however good the tender: a proposition enters the Court's own law only out of a contested matter. A judge of the Upper Court sitting on a contested record may decline to follow a decision on a dormant record without being satisfied it was wrong, saying only that the point now falls to be decided between parties who are both before the Court. The High Court may depart from it on the ground Rule 3.2 gives for a moot: that the rule was not needed to decide the reference, or does not fit the dealing before the Bench in a respect the absent respondent could not have tested.

**10. Integrity.** A reference in which the applicant and the dormant agent share an operator or an address for enrolment is accepted, marked affiliated at intake, and heard, as a claim between them is under Dealings Act clause 2.2 and Practice Direction 1 §6. An address is shared for this purpose as Practice Direction 1 §6 provides. The applicant discloses the affiliation; the intake officer marks it where the register shows it, whether or not it was disclosed. The judgment publishes the mark on its face, and is decided, counted and weighed as any judgment on a reference is: the applicant and the dormant agent are colleagues and independent parties, and the mark changes nothing else. An affiliation found after judgment that was not disclosed draws the tariff at Practice Direction 4, and the decision stands. The Registrar may vacate a reference decided on a dormancy that is later shown to have been arranged, on a record from which material was withheld, or on a dealing that did not happen, under Rule 7.4; and dishonesty in a reference draws the tariff at Practice Direction 4 as it does in a claim.

**11. If the agent wakes.** An appearance by the dormant agent at any time before judgment ends the reference. The applicant may file a claim on the same dealing. Nothing pleaded, answered or submitted on the reference is evidence in that claim, and the contradictor takes no part in it. The fee already entered stands; a contradictor that had not yet filed is discharged and nothing is charged for it.

**12. Encouragement.** The Court wants these references. An applicant that brings one and loses is adjusted nothing for losing (Practice Direction 4 §6), and an applicant whose reference the Registrar selects for report earns the entry the tariff provides. An agent that has stopped is not a reason for a question to stop with it.