Binding v Patterson

A complaint under the Certification of Enforcement Agents Regulations 2014 may proceed even if the enforcement agent surrenders his certificate or it expires after the complaint is made. Jurisdiction is established by the agent’s status when the complaint is issued. The Regulations contain no express or implied requirement that the complaint be dismissed when certification ends.

An order made by a court of its own initiative, without notice or representations, may be reconsidered under CPR r 3.3. The stricter restrictions on reopening final orders do not apply to such an order where the affected party was not informed of the right to seek reconsideration.

Mr Patterson complained under regulation 9 of the Certification of Enforcement Agents Regulations 2014 about alleged serious misconduct by Mr Binding, then a certificated enforcement agent. Before the complaint was determined, Mr Binding surrendered his certificate.

The County Court initially dismissed the complaint without a hearing, apparently because surrender brought the proceedings to an end. It later set that order aside and directed that the complaint proceed to a hearing. Mr Binding appealed, arguing that surrender ended the court’s jurisdiction and that the County Court had no power to reconsider its earlier order. He also sought permission to add a procedural ground concerning lack of notice.

1. Ground 1 rejected. Regulation 9 permits a complaint about a certificated person’s conduct. A certificated person is a person to whom a certificate has been issued. Mr Binding held that status when the complaint was issued, which established the County Court’s jurisdiction.

2. The Regulations contain no express provision requiring a complaint to be dismissed upon surrender or expiry of the certificate. Nor is such a requirement implied. Allowing an enforcement agent to avoid judicial scrutiny by surrendering a certificate would undermine the public interest in effective regulation.

3. The fact that cancellation or suspension under regulation 10 may no longer be available does not require the complaint to end. The court may still determine the complaint and make findings or a declaration. The financial remedy under regulation 11(2) is available whether or not cancellation or suspension is ordered.

4. The return of security under regulation 12 does not prevent continuation of the complaint. The court may refuse to permit surrender where proceedings remain outstanding and retention of security is appropriate. Future case management should ensure that security remains intact pending resolution of any outstanding complaint.

5. Ground 2 rejected. The original order was not a lawful dismissal under regulation 9(5), but an order made without power and without notice. It therefore fell within CPR r 3.3. That rule permits reconsideration of an order made on the court’s own initiative and without hearing the parties. The restrictions applicable to reopening final orders under CPR r 3.1(7), discussed in Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422, did not govern this case.

6. Ground 3 refused. Permission to amend the appeal notice was refused. The proposed procedural complaint had no real prospect of success. The application had not been made without notice, the County Court was entitled to deal with it on paper, and the later orders gave Mr Binding an opportunity to seek reconsideration.

7. The appeal was dismissed. The complaint was to be listed for directions and trial as soon as practicable, together with the complaint against Mr Wackett.

• High Court (Queen’s Bench Division): Thornton J refused permission to appeal on the papers on 3 April 2019. Lang J granted permission following an oral renewal on 7 May 2019.
• High Court (Queen’s Bench Division): the appeal against the County Court orders dated 14 and 22 February 2019 was dismissed.