Just Digital Marketplace Ltd (enforcement - controlled goods agreements - taking control of goods)

Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 does not require physical entry before an enforcement agent enters into a controlled goods agreement with a debtor. A controlled goods agreement is an independent statutory method of taking control of goods. The enforcement agent must nevertheless identify goods within the statutory framework and comply with applicable safeguards.

The Taking Control of Goods Regulations 2013 do not prevent a non-entry agreement, but they do not provide a complete procedure for later inspection, removal or forcible entry after such an agreement is breached. The court’s function was confined to statutory construction. Questions of policy, fees and further procedural regulation were matters for Parliament and government.

The claimant sought declaratory relief concerning proposed enforcement by video appointment rather than physical attendance at a debtor’s premises. It asked whether an enforcement agent could conduct a virtual visit, enter into a controlled goods agreement, and take control of goods without physically entering the premises.

The High Court Enforcement Officers Association and Civil Enforcement Association argued that physical entry was required. The Ministry of Justice remained neutral. The central issue was whether Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, read with the relevant regulations, prohibited a controlled goods agreement made without physical entry.

1. Declaration. An enforcement agent may enter into a controlled goods agreement within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 with a debtor whether or not the agent has physically entered the premises on which the goods are located. There was no order as to costs.
2. Section 62 of the Act makes the Schedule 12 procedure exclusive, and section 65 replaces the former common-law rules. Paragraph 9 refers to premises which the agent has power to enter, not premises which the agent has entered. Paragraph 13(1)(d) identifies entry into a controlled goods agreement as a distinct method of taking control, separate from securing or removing goods under paragraphs 13(1)(a)–(c).
3. The statutory powers of entry in paragraphs 14 and 16 are expressed as powers rather than mandatory requirements. Paragraph 16 permits entry to inspect or remove goods after they have been taken under control, but does not state that an earlier physical entry is necessary. Paragraph 19A likewise refers to the power to enter after breach of a controlled goods agreement and does not require a previous entry.
4. The headings referring to re-entry, the former common law, and the legislative history could not override the enacted wording. The approach in Evans v South Ribble Borough Council and McLeod v Butterwick concerned the former regime and did not determine the construction of the modern statutory scheme. The interpretation adopted also reduced intrusion into the debtor’s home and was consistent with proportionate enforcement within the ambit of article 8 of the ECHR.
5. The regulations created a practical gap. They provide procedures chiefly on the assumption of a physical visit and do not provide fully for later entry, inspection, removal or forcible entry where a non-entry agreement is breached. Regulation 15 requires a physical visit where a controlled goods agreement is made with an authorised third party and a copy must be left conspicuously on the premises. The Act permits further regulations, but the existing regulations do not fully enable enforcement of every non-entry agreement.