In re Jordan Hewitt

This is my judgment on a complaint made on 21 May 2025 ("the Complaint") brought by Mr James Donoghue against Mr Jordan Hewitt pursuant to reg. 9 Certification of Enforcement Agents Regulations 2014 ("the Certification Regulations"). I will refer to Mr Donoghue by name, and Jordan Hewitt as "the EA" (short for "enforcement agent"). The complaint surrounds the enforcement of a warrant for commercial rent arrears recovery ("CRAR") given to the EA by Natalie Bardsley ("the Landlord") the landlord of 360 Hollinwood Avenue, M40 0JB ("the Premises").

The CRAR warrant was executed by the EA on 21 October 2024. At that time, the Premises were let to Fresh Vape Limited ("Fresh Vape") under a tenancy agreement between it and the Landlord dated 14 January 2024 ("the Lease"). Consistently with its name, Fresh Vape traded the Premises as a vape shop, selling vape solutions and the like, though the precise mix of stock is immaterial for my purposes.

The present law governing the taking control of goods (as it is now referred to) came into force on 6 April 2014 when sections 62 to 84 (inclusive) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") and Schedule 12 thereto ("Schedule 12") came into full force. (Schedule 13 made provision for repeals.) There are also various statutory instruments; the Certification Regulations are one of them, another of relevance for the purposes of this judgment is the Taking Control of Goods Regulations 2013 ("the 2013 Regulations"). I shall refer to the provisions of both in due course.

In principle, enforcement agents should in my view be held to a standard of conduct which requires not only lawfulness but which also "accords with the standards which right-thinking people or, as it may be put, society would think should govern the conduct of the court or its officers.". In my judgment, that is plainly a higher standard than simply acting lawfully and within their powers. By statute enforcement agents are required to be fit and proper to hold a certificate. They are (most commonly) doing the Courts' bidding in enforcement of orders. They are officers of the Court. In relation to 'fit and proper', see below. In relation to the first and final two propositions, see Court Enforcement Services Ltd v Marston Legal Services Ltd [2020] 3 WLR 777 at [120], [80] and [122].

All of that said, it is vital to recognize that – by virtue of their certification – enforcement agents serve a valuable and important purpose and in circumstances which are often extremely contentious and sometimes, regrettably, even violent. They will not always know, in advance, who they may come across, or what the attitude or reactions of such persons may be. Sometimes, analysis of conduct in cold hindsight might generate an unfavourable impression which is only dispelled by remembering that enforcement agents are constantly dealing with the unknown and may face sudden and unexpected changes in attitude or their physical safety. They are right to exercise reasonable scepticism about what they are told (even sometimes with evidence) by those who owe money, but emphasis must remain on the word "reasonable". I bear all of that well in mind in what I have to say.

The Complaint was listed to be heard in August 2025. Through no fault of anyone, it could not be heard and was adjourned. It came before me today. It is unfortunate that it took so long to be re-listed.

Procedurally, the only relevant order is the one I made on 1 December 2025. Among other matters, it made clear:

The EA neither produced any further evidence, nor did he attend the hearing of the Complaint or provide any explanation for that failure.

Out of fairness to the EA, since I had become aware that he had obtained a renewed certificate not from the County Court at York but, instead, in January 2026, from the County Court at Burnley, I personally enquired of the latter Court to see whether the home address on his application for a certificate there had changed from the address York had on file. That enquiry targeted the question of whether the EA may not have received my order dated 1 December 2025, which had been served by post on 5 January 2026. I discovered the two addresses to be the same and am thus satisfied, firstly, that the order listing the hearing of the Complaint today has been correctly served and, secondly, therefore, that there is no obvious reason why he would not be aware of its contents.

It is worth setting out in full, at this stage, the matters about which the Court indicated it may draw adverse inferences, taken from the order of 1 December 2025:

I have no doubt the EA is a "certificated person" within the meaning of reg. 9 of the Certification Regulations. The definition of "certificated person" appears at reg. 2 and says that it means "a person to whom a certificate has been issued" (past tense, my emphasis). The EA is plainly a person to whom a certificate has been issued. It makes no difference in my judgment that his present certificate has been granted by the County Court at Burnley: this complaint has been properly brought at the Court at which he was certificated at the time it was made. Certificates are granted for two years; the EA's previous certificate was granted by the County Court at York on 8 October 2023 and was valid until 8 October 2025; the events in question occurred in October 2024, and the complaint was made on 21 May 2025.

Even where an enforcement agent surrenders their certificate, complaint proceedings can (and should) still be determined because the surrender does not mean they cease to be "a person to whom a certificate has been issued" (emphasis added). See also the decision of Saini J in Binding v Patterson [2019] EWHC 2665 (QB) [29]-[43]. The utility of making findings on a complaint in such circumstances, where an individual may re-apply for certification, is obvious.

The Complaint was accompanied by a document setting out the events of 21 October 2024.

The EA's response to the Complaint was received by the Court on 3 June 2025.

On consideration of the Complaint and the EA's response, I directed that the Complaint be heard because I was not satisfied on that material that the EA remained a fit and proper person to hold a certificate: see reg. 9(6) of the Certification Regulations.

A further witness statement, made with permission, was received from Mr Donoghue on 10 October 2025. The EA's response has never been sent to the Complainant. So far as was necessary, I explained its content to Mr Donoghue at the hearing before me. I am satisfied, given the nature of the hearing which I shall describe below, that no prejudice has been occasioned to Mr Donoghue as a result of the omission to deliver a copy of the response to him.

At the hearing, Mr Donoghue was asked if he wished to give oral evidence. He was reminded that he was under no obligation to do so, was in no sense "on trial", but that if he did then the Court may have some questions for him. He decided to give evidence. Under oath, he confirmed as true both the content of the Complaint and his later witness statement. I will explain what he told me during the course of this judgment.

I have considered each of those documents, and the oral evidence of Mr Donoghue. Necessarily, given his unexplained absence, I have had no further evidence of any sort from the EA.

The regulatory nature of the grant of a certificate by the Court. Enforcement agents are certificated by the County Court pursuant to the Certification Regulations. It is a requirement, as a condition of certification, that the Court considers the applicant for an enforcement agent's certificate to be "fit and proper". Practice Direction 84 sets out various requirements that must be complied with. It is clear, however, that whilst (at the certification application stage) those conditions are all necessary, the may or may not be considered sufficient by the Court in any given case. That is not least because Civil Procedure Rules 1998 (as amended) ("CPR") r.84.18(6) admits of the possibility of further evidence being required to be filed by the Court as part of the certification application process.

Also at the certification stage, there is facility for members of the public to object to an application by filing information they consider are relevant to certification. That opportunity arises because applications for certificates are published, and cannot be heard until a prescribed time has elapsed after publication. In these regards, see regulations 4 and 5 of the Certification Regulations.

It is clear, therefore, that the grant of a certificate is a discretionary exercise by the Court after making its own assessment of whether the applicant is "fit and proper" to hold a certificate. (The issue of a certificate is clearly discretionary because both s.64 of the 2007 Act and reg. 3 of the Certification Regulations use the word "may".) This is, therefore, an exercise of the Court's function in a regulatory, rather than adversarial, context.

The procedure by which a complaint comes to be heard. Where either a certificated person does not respond to the complaint, or the Court considers that it cannot be satisfied on the material in the complaint that the certificated person remains fit and proper to hold a certificate, a hearing must be listed: see reg. 9(6) Certification Regulations. The latter is what happened on this complaint.

The procedure on the hearing of a complaint. No particular procedure is established by the Certification Regulations when the complaint is considered at such a hearing save that the certificated person must attend (reg. 9(7)(a)) and the complainant may attend and make representations, or make representations in writing (reg. 9(7)(b)). The predecessor rules (the Distress for Rent Rules 1988 ("the 1988 Rules")) provided that the procedure to be followed, including the calling of evidence, shall "be such as the Judge considers just, and he may proceed with the hearing notwithstanding that the bailiff has failed to attend". In my judgment, the Certification Regulations were intended to make the procedure even more flexible, if that were possible, than that for which the 1988 Rules provided. Clearly, however, the overriding objective and Article 6 of the European Convention on Human Rights will still apply so that the procedure must be a fair one.

The question for the Court on the hearing of a complaint. The task at the hearing of a complaint is for the Court to ask the question prescribed by reg. 9(8) of the Certification Regulations. That question is whether the Court is satisfied that the certificated person "remains a fit and proper person to hold a certificate". If the answer is in the affirmative, the complaint must be dismissed.

Potential sanctions. If, however, the answer is other than in favour of the certificated person, the Certification Regulations provide for cancellation or suspension of the certificate with or without conditions (as to training or otherwise): see reg. 10, and for the application of the certificated person's security (with or without cancellation or suspension of the certificate): see reg. 11. I shall explore those in more detail as may be necessary depending on my conclusions.

The detail of the question to be asked by the Court. It is important to understand what "being satisfied" and "fit and proper" entail in the context of reg. 9 on the hearing of a complaint.

"Being satisfied". There can be no doubt that any factual findings are to be made to the civil standard: a complaint is not a criminal proceeding. That is to ask the question "what is more likely than not", or alternatively to determine those facts "on the balance of probabilities".

As to the facts, the well-trodden maxim "He who asserts must prove" applies, and for any given fact it will be necessary for the person asserting that fact to meet an initial evidential burden to establish it; if they do so, then the person asserting the contrary will be required to produce evidence to that effect, and so the evidential burden can swing from one side to the other.

A more nuanced question is the legalburden of proof, which only has utility if, having striven to, a Court cannot reach a conclusion on the facts: see Stephens v Cannon [2005] C.P.Rep. 31 at [46]. Any such resort to the burden of proof should be exceptional.

As I have explained above, in order to dismiss a complaint the Court must be satisfied that the certificated person remains a fit and proper person to hold a certificate. Regulation 9(8) represents a subtle change of wording from the former 1988 Rules.

The 1988 Rules required the bailiff (on summons) to appear before the Judge and "show cause why his certificate should not be cancelled". In other words, it appeared that once a complaint was heard under the 1988 Rules, it was for the bailiff to satisfy the Court that they should retain their certificate which, necessarily given the context of the rest of rule 8 of those rules, meant proving their fitness. The starting point was therefore a cancellation of the certificate (there being no provision for suspension of certificate in the 1988 Rules), and a burden on the certificated person to show why that should not occur.

The Certification Regulations have removed any mention of anything similar to the certificated person being required to "show cause". The requirement in the Certification Regulations is simply that the Court be satisfied that the certificated person remains fit and proper.

It is clear to me that the starting point is, given that the certificate person must have held a certificate at the time of the events complained of, that they are fit and proper. That is emphasised by the use of the word "remains": in other words, the certificated person is to be considered fit and proper until the Court determines that is no longer the case. That is in contrast to the position under the 1988 Rules, under which the bailiff had to show cause why their certificate ought not to be cancelled, which would be primarily achieved by establishing that they were fit and proper.

I consider that to be a deliberate change of emphasis in the framework of the rules or regulations which govern the hearing of a reg. 9 complaint. In my judgment, the burden of proof is neutral and it is for the Court to find the facts and then determine from those findings whether the certificate person remains fit and proper. I say that for the following reasons:

For those reasons, and as I explained, I consider that the legal burden of proof on a complaint is neutral. The Court's task is to engage in a fair fact-finding exercise, which may range wider than that put forward by the complainant, and then to ask itself, based on those findings, whether as a matter of fact the certificated person remains fit and proper to hold a certificate.

"Fit and proper". Given that question to be asked (see above) and the requirements on certification (see above also), the question of whether certificated person remains fit and proper requires the Court a starting point that the certificated person is fit and proper (since they held a certificate at the time of the events surrounding the complaint) and to ask whether the facts found dislodge that position. There seems little reason, to me, to consider that this means any more than to assess that position in the same was as it would have been addressed at the stage of considering the grant of a certificate, but in light of the facts found during the complaint proceedings. The words in the Certification Regulations ("fit and proper") are identical as between regulations 3, and 9(5), (6) and (8). They must mean the same thing. That will entail considering whether any of the factors in PD84 have ceased to be met (including, for example, whether there is current security to the required level), and whether any of the facts found on the complaint indicate that the position has changed. It would be unwise to advance any form of checklist; the types of matter which might be relevant range wide.

I now approach the complaint about the EA by reference to those principles. There will be a few more relevant issues of principle to explore along the way.

I adopted a procedure that the complainant could, if he wished to, give evidence on oath.

The EA did not attend, despite an order compelling him to. The complainant decided to give evidence on oath, having been warned I may have some questions for him if he did. Having heard his evidence, there is no reason at all to consider that he is anything but an honest and reliable historian of the relevant events. Had the EA wished to contend otherwise, he could and should have attended.

Having heard the complainant's evidence, I decided it would be more consistent with the overriding objective if I expressed my conclusions in writing. Whilst that is not inevitable in the absence of the certificated person, it seems to me that it provides a potentially faster mechanism by which such a person can discover the reasons for the outcome of a complaint, as compared to obtaining a transcript of an oral judgment and waiting for it to be corrected. Where potentially career-threatening issues are being decided, such a course is also appropriate because it facilitates more careful consideration of the facts by the Court.

The material attached to the complaint dated 21 May 2025 describes the taking control of goods allegedly pursuant to a CRAR warrant issued by the Landlord to the EA against Mr Donoghue. The CRAR warrant pertained to allegedly unpaid rent at the Premises. The business carried on at the Premises was selling vape fluid (and perhaps associated items). The following matters arise from the complaint:

Some other matters were raised in the complaint, such as there being no court-issued writ. Since CRAR is a non-court process, I do not consider that complaint to be capable of affecting the EA's fitness. The complaint also sought "guidance" from the Court on how Mr Donoghue may seek redress. That would be to engage in advice, which the Court cannot fairly or properly do.

I am satisfied on the evidence of Mr Donoghue that it was some days before he was permitted to re-enter the Premises to collect the various items within it. He told me, and I accept, that the keys were then handed to the Landlord rather than him. That, however, was not surprising since the Landlord had obtained a possession order against Fresh Vape (at a hearing which Fresh Vape did not appear) in the County Court at Manchester prior to the enforcement, on 12 September 2024. In those circumstances, and since the Landlord could presumably have peaceably re-entered the Premises for non-payment of rent in any event, I do not think it is surprising that the keys were returned to the Landlord. I do not think I can ascribe any misconduct to the EA in that respect: it appears the Landlord was the person entitled to possession. That said, enforcement agents should think carefully before deciding to do anything similar because the Landlord might not be entitled to possession in any given case.

I set out the various matters I have described at paragraph 41 above in an order I made on 20 June 2025 and again on 1 December 2025. They were expressed to be a non-exhaustive list of matters about which I was concerned. I made the usual orders about attendance by the EA and complainant.

Anxious to afford the EA an opportunity to deal with the matters which concerned me, in case they had not been apparent to him from the complaint and had therefore not been dealt with as fully as he might like in his response, I gave the EA permission to file and serve further evidence. However, as I have explained, I made it clear that the Court might draw adverse inferences in certain respects if he decided, as it transpires he did, not to do so.

Mr Donoghue did, however, produce further evidence. From that evidence, I identified four further issues of concern which I had intended to address with the EA:

Mr Donoghue's evidence also deals with what he says are debts caused by the EA's actions, including loan finance for stock and tax debts to HMRC, since the stock which was locked in the Premises expired and could not be sold. He further complains about damage to Fresh Vape's ability to trade, the effect on its customer base and its reputation. I will consider those matters later.

It seems to me that I should add to the list of concerns the fact that, contrary to reg. 9(7) of the Certification Regulations and my order of 1 December 2025, the EA has not attended to be examined. Absent an explanation, that in and of itself would appear to be misconduct since it is in defiance both of the statutory instrument and a Court order.

None of the above should be taken as overlooking the EA's original response to the complaint, to which I will refer as necessary.

I now turn to the matters of concern.

I am satisfied, on the evidence I have heard, that what happened in outline was as follows. I will deal with the detailed findings when I deal with each issue.

I am satisfied that the EA was given proper notice of the hearing before me, of the permission to give further evidence, and of the matters he should address in that evidence to avoid adverse inferences being drawn against him. His failure to attend is thus unexplained and contrary to both regulation 9(7)(a) of the Certification Regulations and my order of 1 December 2025.

The grant of a certificate under s.64 of the 2007 Act (and, thereunder, the Certification Regulations) is in the discretion of the Court. In many ways it is a privilege afforded on discretionary grounds. As I explained earlier, an enforcement agent is an officer of the Court. For an officer of the Court to disobey both the statutory provision and a Court order is particularly significant in my judgment.

I therefore consider the EA's unexplained absence, having been served properly with my order of 1 December 2025, to be serious misconduct.

I am entirely satisfied that the Landlord had no basis to generate a CRAR warrant naming Mr Donoghue personally as the debtor and then give it to the EA to execute. That is because on 12 September 2024, the Landlord had obtained a possession order against Fresh Vape. That order contained a money judgment for £5,999.00 plus mesne profits from the date for possession ("forthwith") until possession was given up. That sum is exactly the sum sought on the CRAR warrant (see the notice of enforcement produced by Mr Donoghue, which he says he was sent after the enforcement actually took place, and not before). It therefore seems highly likely to me that:

It follows that the CRAR warrant should never have been given, whichever way the facts are analysed.

That, without more, however, does not mean that the EA has misconducted himself. He will only have done so if he knew (or perhaps had reason to believe) that the CRAR warrant was invalid when he undertook the various stages of enforcement. Discounting the misnomer on the notice of enforcement ("warrant of control" rather than "CRAR warrant") which I consider to be of little to no consequence in relation to his conduct, I am not satisfied that there is any reason to think that the EA thought anything was amiss. That is, at least until he attended the Premises.

The question of the validity of the CRAR warrant was one of the matters identified in my order and thus is subject to potential adverse inferences by reason of paragraph 4(f) of my orders of June and December 2025.

I am satisfied on the evidence that, when he attended the Premises, Mr Donoghue showed the EA a copy of the Lease. That would have given him ample reason to think that there may be a problem with the CRAR warrant, which was not in the name of the tenant under the Lease. In my judgment the EA could only reasonably have decided that recourse to the Landlord was appropriate. In my judgment, he should have made enquiries instead of continuing with the enforcement. I do not think it was at all appropriate to carry on in those circumstances. Matters may be different when the Schedule 12 instrument is one issued by a Court (whether drawn by the Court or by or on behalf of someone else such as a local authority, as is the case with warrants of control under CPR Part 75). Where there is no Court process involved, in my view an EA should exercise a greater degree of caution before pressing on with enforcement. In my judgment, the EA in this case failed to exercise proper consideration about the validity of the CRAR warrant the enforcement of which he had been tasked with.

True it is that, if the EA presses on, then there can be either a claim under Schedule 12 paragraph 60 (goods taken into the control are not goods of the debtor, whether by way of co- or sole ownership), and/or a claim for an order to release the goods or for damages under paragraph 66. Thus it may be thought that there is no reason for the increased caution I have described. However, the fact that there is a potential remedy for (in this case) Mr Donoghue does not mean that he should be put in a position of having to pursue it (as he did here) when there is ample material from which a reasonable EA ought to consider that consulting the Landlord would be sensible. Had the EA done so, I am satisfied he would have discovered that Mr Donoghue (personally) was not the tenant, and could, should, and would properly have refused to continue.

All of the above disposes of the question of whether the EA was at "relevant premises" for the purposes of Schedule 12 paragraph 14(4) so far as CRAR warrants are concerned. The only relevant premises for attendance in relation to such warrants (and thus the only premises at which an EA can lawfully enter to search for and take control of goods under Schedule 12) are the demised premises. In relation to Mr Donoghue personally, for the reasons above, there were no demised premises at all. However, since the EA attended the Premises which were the subject of the Lease and which were therefore within paragraph 14(4), there is no additional misconduct at the point of attendance as regards "relevant premises" once the EA had (erroneously) decided to execute the CRAR warrant.

However, once the Lease was shown to the EA, the same conclusion arises as to "relevant premises" as it does in relation to the CRAR warrant validity: by that time, the EA should have realised there was every probability that he was not attending at premises he had any right to enter and was thus in breach of Schedule 12. To continue was, in my judgment, misconduct.

Analysed a slightly different way, by continuing the enforcement having been shown the Lease, the EA took an unjustified risk that he was in breach of Schedule 12 and that he would be misconducting himself. That risk has eventuated.

It follows that, in relation to the CRAR warrant which caused this enforcement, Mr Donoghue does not appear to me to be a debtor of the Landlord at all. Where I refer to a "debtor" later in this judgment, it is in the context of the enforcement provisions generally and is not to be taken to suggest Mr Donoghue in fact owed the Landlord money. (He may be a debtor of hers in other contexts, I do not know – but he does not appear to have been in relation to the Lease or the Premises so as to give rise to the right to have a CRAR warrant enforced.)

Goods may not be taken into control unless notice of enforcement has been given, and the enforcement agent must keep a record of the time when the notice is given: see Schedule 12 paragraph 7(1), (3). Regulations provide for a minimum period of notice, form of the notice, what it must contain, how it must be given and who must give it: see paragraph 7(2) and 2013 Regulations, regulations 6—8.

The default minimum period of notice is not less than 7 clear days: see 2013 Regulations, r.6(1). "Clear days" is defined at regulation 2 and is calculated differently to "clear days" under the CPR. Regulation 7 sets out the form and content of the notice; I am satisfied that the notice which was eventually produced to Mr Donoghue complies, at least for the purposes of this complaint. However, nothing in that conclusion should be taken to mean that any particular defect which may become apparent in the notice is one which should be overlooked in the future. Regulation 8(2) provides that the notice "must be given by the enforcement agent or the enforcement agent's office". Regulation 8(1) sets out various modes of giving notice (e.g. post, fax, etc.).

I accept the evidence of Mr Donoghue that no notice of enforcement was received before the enforcement took place, and that the first time he saw it was when it was sent by email on 28 November 2024. That does not mean, without more, that it was not given in compliance with Schedule 12 paragraph 7, but it is a fact to take into account. The EA's response to the complaint simply refers to the date of the notice. It says nothing of when it actually came into existence, or when it was given – despite the requirement for a record to be kept by the enforcement agent of the latter.

Two of the documentary items I referred to, in relation to which adverse inferences may be drawn if they were not produced, were (i) A copy of the notice of enforcement sent to the debtor named on the CRAR warrant, and (ii) a copy of the record required to be kept by Schedule 12 paragraph 7(3) as to the time the notice was given.

As I have explained, the EA has given no further evidence. He did not produce either document. I bear in mind, however, that the EA's office does appear to have sent the notice of enforcement to Mr Donoghue in late November 2024 – well over a month after enforcement took place.

The EA has had ample opportunity to demonstrate compliance with the giving of the notice of enforcement and when it was given. He has not done so. If he had an explanation, he could surely have given it, but he has not. In those circumstances, his failure to produce those documents warrants my drawing adverse inferences against him.

The email from the EA's office on 28 November 2024 attaching a copy of the notice of enforcement simply says that it was sent prior to enforcement. No further detail is given, no information about how notice was given, or when. That is insufficient evidence to dislodge the inference I have drawn an inference that, because the EA is unable to establish that the notice was properly given, it is most likely that it was not, in fact given as in due time ahead of his visit.

Consistently with the evidence of Mr Donoghue which, on balance, I accept, I therefore find that no notice of enforcement was given before goods were taken into control on 21 October 2024. That was a serious breach of Schedule 12 for which the EA is solely responsible. He may lawfully delegate the task of sending the notice to his office in light of reg. 8(2) to the 2013 Regulations, but it is clear that an enforcement agent remains personally responsible for ensuring that that happens. In my judgment, an enforcement agent who attends to search or take control of goods without first satisfying themselves that notice has been given on his authority should under no circumstances undertake either of those activities. On my findings, the EA could not have done so. The EA's activities on 21 October 2024 were therefore further misconduct by reason of the failure to give notice of enforcement as required.

Without detracting from that conclusion in any way, it is worth observing that a notice of enforcement is to be given. That does not require actual receipt. Just as court documents can be properly served without being actually received (for example because they go missing in the post) so, too, can a notice of enforcement. I reach that conclusion for the following principal reasons:

It is for those reasons that I emphasised above that the fact that Mr Donoghue did not receive the notice does not, and cannot without more, mean that the EA was in breach of the requirement to give the notice if it was given by post. As I have explained above, however, there is an adverse inference to be drawn against the EA in this case which means that I have found that the notice was not given.

It seems likely to me that the requirement to keep a record of the time the notice was given at Schedule 12 paragraph 7(3) necessarily also includes a requirement to keep a record of the date it was given. Where notice is given by post and s.7 of the 1978 Act applies, another question would be which date must be recorded: it could either be the date of posting or the deemed date of giving of the notice under s.7. (The time and date of actual receipt cannot practically be recorded by the EA, and the notice might not be actually received at all.) In my view, albeit obiter, the required date and time is that of posting since, from there, the deemed date of giving of notice can be calculated. For extra prudence, there should be no difficulty recording both. For other methods of giving notice under regulation 8, a precise time and date can be recorded quite straightforwardly.

Schedule 12 paragraph 26 provides as follows:

In my judgment there are some important points to note about that provision:

It was alleged by Mr Donoghue in the complaint that he was told he would receive "a copy of the writ" and other documentation, but that they were never produced by the EA. Whilst the EA's response suggests he showed Mr Donoghue his certificate, I reject that assertion given that the EA did not attend to be examined on the subject.

I explored with Mr Donoghue in evidence whether there was a request under Schedule 12 paragraph 26. The best he seems to have asked is to "see the papers". Nothing in that suggests he was questioning either identity or under what power the EA had entered the premises. I have concluded that he did not use words which might reasonably have caused the EA to think paragraph 26 was engaged. Whilst I accept from Mr Donoghue that he was not in fact shown the EA's certificate or the CRAR warrant, he did not tell me anything which suggested that the EA should have realised that he was being asked to comply with paragraph 26.

I therefore do not find there was any misconduct in that regard on the particular facts I have found.

These matters are also matters about which the Court indicated it might draw adverse inferences in the absence of evidence from the EA: they were referred to in paragraph 2 of the orders made in June and December 2025, and thus are within scope of the adverse inference provision at paragraph 4(f) of the same orders.

I find, based on Mr Donoghue's evidence and the EA's response (to the extent that it seems likely even though he was not examined) and the EA's lack of evidence by way of explanation, that what happened after the EA arrived was as follows:

What the EA did on that occasion was to take control of goods by securing the premises pursuant to Schedule 12 paragraph 13(1)(a):

There are three other options for taking control out of a (closely prescribed) four in total. Of relevance, given that these goods were not on the highway, were (i) removing the goods and securing them elsewhere (paragraph 13(1)(c)) and (ii) entering into a controlled goods agreement with the debtor (paragraph 13(1)(d)).

However, securing goods on the premises where they are found (as here) is subject to stringent restrictions imposed by reg. 16 of the 2013 Regulations. Those restrictions were specifically mentioned in my order of 1 December 2025 as being relevant to the EA's fitness. So far as material, reg. 16 provides as follows:

Securing goods by securing the whole of the premises is thus not permitted unless it is not practicable to remove the goods and secure them elsewhere (reg. 16(4)(b) and Schedule 12 paragraph 13(1)(c)), and it is not practicable to secure the goods on the premises by some mechanism short of securing the whole premises (reg. 16(4)(a) and 16(1)(a)—(c)). There is no doubt that the Premises were occupied solely for the purpose of a trade or business, and no suggestion has been made to the contrary.

It is clear that the EA was aware of the provisions of reg. 16 because Mr Donoghue exhibited a photograph of a notice, apparently on the door of the premises which referred to reg. 16(1) and, in particular, reg. 16(1)(d).

The goods secured by the EA on 21 October 2024 were highly portable goods: vaping supplies and accessories. I accept from Mr Donoghue that they were items customers would come to the shop, purchase, and take away with them. There is no reason I can see (nor could Mr Donoghue) why it was impracticable to remove the goods and secure them elsewhere.

I had referred to the relevant provisions in two orders. The EA could have attended to explain why he had nonetheless been entitled to secure the whole premises. He did not.

On the facts I have heard, a controlled goods agreement was unlikely to have been practicable: first, Mr Donoghue was clearly refusing arrangements of that type but, more pressingly, second: these goods were stock for sale. Mr Donoghue could hardly agree not to part possession with them. I have no information about whether it would have been practicable to secure the goods in some part of the Premises, but it makes no difference.

To my mind, and without expressing any final view or principle, securing goods by securing the whole premises might, for example, be appropriate where the goods in question are heavy machinery which requires specialist removal (even to move it within the premises). For example, a lathe, milling machine, commercial printing press and other items of that size and nature which tend to be extremely large, heavy and secured to the floor, or require specialist removal. Even then, securing the whole premises would only be lawful if a controlled goods agreement was impracticable.

I am satisfied that it was practicable to remove the goods and secure them elsewhere and that, consequently securing the whole of the Premises was a breach of regulation 16 of the 2013 Regulations and, in turn, misconduct. On the evidence, that should not have happened.

Nothing changes about that conclusion as a result of the EA indicating in his response that he secured the Premises on the instruction of his office. The office of enforcement agent is personal and non-delegable, save to the very limited extents permitted in the statute. Only individuals can be granted a certificate: see s.62 of the 2007 Act. Even where limited acts can lawfully be delegated, the responsibility for carrying out the duties and responsibilities of an enforcement agent begins and ends with the individual.

The caveats to that position which do not apply in this case are (i) where a High Court Enforcement Officer has an enforcement power which they are required to delegate to an enforcement agent since they have no Schedule 12 powers of their own (e.g. in relation to writs of control, but the position is otherwise as regards writs of possession), and (ii) the potential liability of both an HCEO and the creditor in parallel with the enforcement agent on a claim under Schedule 12 paragraph 66: see Burton v Ministry of Justice [2024] EWCA Civ 681 at [17]—[26].

It follows that culpability for the decision to secure the whole Premises in this complaint rests with the EA and the EA alone, irrespective of what his office did or did not advise him, or (as is sometimes alleged, but not in this case) the content of any training he received. Sometimes deficient training can be good mitigation, but there was no reference to it in the case before me.

I accept this occurred. Mr Donoghue told me in evidence that he had shown the EA invoices for the certain personal items (a printer and a karaoke machine), but the EA did not allow him to take those away. I am not surprised by the EA's reaction because, on the counterfactual there was a valid CRAR warrant against Mr Donoghue, to allow him to remove those items would have been wrong: they could be legitimately taken into control.

Whilst I criticise the EA, above, for not investigating the validity of the CRAR warrant further, I do not think that (having failed to do that) he can then be criticised further for refusing to allow a debtor to remove goods which, he would no doubt have thought, could legitimately take into control.

This is a further matter upon which the Court indicated, in its orders of June and December 2025, that absent evidence from the EA by way of explanation, it would be prepared to draw adverse inferences against the EA: see paragraphs 2(g) and 4(f) of those orders.

It is now beyond doubt that the goods taken into control were not goods of the debtor (i.e. Mr Donoghue personally, rather than Fresh Vape), because the creditor (though the EA's office) has not resisted the claim to that effect raised by way of CPR r.85.4, and there is no evidence to suggest otherwise. The legal framework is as follows.

Schedule 12 paragraph 10 imposes a blanket prohibition on taking control of goods which are not "goods of the debtor". There is no other way to read the plain words which comprise that provision: "10. An enforcement agent may take control of goods only if they are goods of the debtor.".

"Goods of the debtor" means goods in which the debtor has an interest: Schedule 12 paragraph 3(2)(a). An "interest" means a "beneficial interest": Schedule 12 paragraph 3(1). In other words, the debtor need not be the legal owner providing they have an interest at least in equity in the goods. Such an interest may be only a partial interest: the debtor may be a co-owner (for example of a motor vehicle).

So it is that the requirement for a third party to claim goods under Schedule 12 paragraph 60 is to prove that the goods (i) are his but, crucially (ii) are not goods of the debtor – in other words, the debtor has no interest in them, not even by way of co-ownership. If the debtor is at least a co-owner, the goods can legitimately be taken into control and sold if the debt remains unpaid. A co-owner is notified of any sale (Schedule 12 paragraph 40(1)), paid first, commensurate to their share, out of the proceeds of enforcement (Schedule 12 paragraph 50(6)(a)), and there is a procedure for resolving disputes about the extent of such a share (Schedule 12 paragraph 50(7), reg. 15 of the Taking Control of Goods (Fees) Regulations 2014, and CPR r.84.15.

So it is that an enforcement agent may take control of goods only if the debtor has some degree of at least beneficial (even if not legal) interest in them, even if that is not of the whole. The test under Schedule 12 paragraph 10 is not whether the enforcement agent reasonably believed that was so: the prohibition is absolute. A reasonable belief, however, will give rise to a defence to a damages claim brought by the debtor (but not a third party) under Schedule 12 paragraph 66, at 66(8).

As a matter of fact, as is now beyond doubt, save for the two "personal" items, all of the goods taken into control on 21 October 2024 were not goods of the debtor, because they were all in the sole ownership of Fresh Vape. That was a breach of Schedule 12, but that does not mean (without more) that it was necessarily misconduct. Sometimes such breaches occur entirely innocently, especially if there is no information to guide an enforcement agent away from a starting point that what is in certain premises controlled by the debtor may well be goods of the debtor.

It is common ground (because Mr Donoghue told me, and the EA effectively concurs in his response to the complaint) that Mr Donoghue showed the EA invoices for at least some or possibly all of the goods before they were taken into control. Those invoices, which were eventually accepted (it appears) by the creditor, demonstrated that the goods were in no part even co-owned by Mr Donoghue. The EA had also been shown the Lease, which identified Fresh Vape, and not Mr Donoghue, as the tenant. That observation of the Lease itself does not require any complex legal analysis in my view: it is plain on the face of the document.

As Mr Donoghue was the debtor with whom the EA (incorrectly) thought he was concerned, there was ample reason for him to exercise considerable caution before taking those goods into control. He was on notice that the goods were highly unlikely to be goods of the debtor but, for whatever reason, proceeded to take them into control. He should not have done so.

A complaint by Mr Donoghue that no documentation was produced was of concern to the Court. It was for that reason that in my order of 1 December 2025 (and its counterpart made in June that year), I ordered (so far as is relevant) as follows:

Schedule 12 paragraphs 28, 34 and 40 provide as set out below. They are important provisions for the protection of debtors who are subject to enforcement processes. First, paragraph 28, which is about telling the debtor what the enforcement agent is doing on the premises:

As paragraph 28 itself foreshadows, there are relevant provisions at reg. 30 of the 2013 Regulations (insofar as material) as follows:

Next, paragraph 34 – which is about giving an inventory to the debtor:

The 2013 Regulations supplement paragraph 34 as follows:

It is thus clear that if the debtor (who, for the EA's purposes on this enforcement was Mr Donoghue) is on the premises, the notice after entry pursuant to Schedule 12 paragraph 28 must be given him whilst the EA is there: see paragraph 28(4). Such a notice must comply with reg. 30 of the 2013 Regulations as to its form and content. That is usually achieved (provided the form is correctly completed) by completing the standard form which the EA was required to produce at the certification stage: see the Certification Regulations reg. 3(b)(iii) and the schedule to those regulations, and handing a copy of it, duly signed, to the debtor: see 2013 Regulations reg. 30((2) and Schedule 12 paragraph 28(1), (4).

Secondly, the EA must provide an inventory of goods taken into control: Schedule 12 paragraph 34(1). The provision as to when that is given is different: it must be given as soon as practicable: see Schedule 12 paragraph 34(1). The form and content requirements are set out at reg. 34 of the 2013 Regulations.

The two documents can be combined and given at the same time: see reg. 30(4) of the 2013 Regulations. If that is to be done, the notice must be the notice after entry – provided to the debtor whilst the EA is on the premises, if the debtor is there – and not "as soon as practicable" as it is for the separate inventory given under Schedule 12 paragraph 34. Such a combination can only be achieved if the lists of goods are the same. The provision essentially avoids an enforcement agent having to produce two identical lists: one on the notice after entry, and a separate inventory.

Mr Donoghue's evidence was that the only documents containing any form of inventory were provided to him the following day. Pursuant to my order, in the absence of further explanatory evidence from the EA, I find that no notice after entry pursuant to Schedule 12 paragraph 28 was given as it was required to have been. No explanation has been offered.

The notice after entry is an important document. It explains, among other things, what has been taken into control and when and how payment must be made (and how much) in order to avoid a sale. Where the contention (as here) is that the goods are third party goods, the taking into control also starts the clock for giving notice of a claim under Schedule 12 paragraph 60: see CPR r.85.4. So it is clear that having a list of what has been taken into control is vital, especially where goods have been removed, or secured in such a way that the debtor has no access to them. (It is of note that r.85.4(1) only refers to notice within 7 days of the goods being removed, and appears on its face to make no provision for goods being taken into control and secured on premises to which neither the debtor nor the third party claimant has no access, but I need say no more about that for now.)

I consider the failure to give the required notice to Mr Donoghue whilst the EA was on the premises was misconduct.

As to the content of the inventory, Mr Donoghue complained that the inventory with which he was supplied the day after enforcement was inadequate and incomplete, and that he had a far longer list of items which were taken into control. That list was not before me. If there has been a breach in terms of the adequacy of the inventory, I am not in a position to assess its extent and, given my findings on other issues I am unconvinced it will alter the overall position on this complaint in any event.

Lastly as regards the issue of notices, I turn to the minimum period before sole prescribed by Schedule 12 paragraph 39 and the notice of sale prescribed by Schedule 12 paragraph 40 – which is about giving notice that goods are going to be sold.

Provisions in this respect appear in the 2013 Regulations as follows:

There is no suggestion from either Mr Donoghue or the EA that a notice of sale was given, despite it being a matter that the Court indicated that adverse inferences may be drawn in its orders of June and December 2025 As no further evidence emerged from the EA, and no reference to a notice of sale appeared in his response to the complaint, I have no hesitation in finding that no notice of sale was given.

However, on the evidence of Mr Donoghue (which I accept) the EA sent Mr Donoghue a text on 30 October 2024. From the screenshot Mr Donoghue produced, it reads as follows (quoted verbatim, despite various obvious errors):

A failure to give notice of sale within 12 months of taking control causes a statutory abandonment of the goods and an entitlement on the part of the debtor to collect them: see Schedule 12 paragraphs 40(4), (5), 53, and 54. It is thus an important notice.

Given that there had been no notice of sale, a statement that the goods were "going to auction shortly" could not be true: any such sale would have been unlawful. Still less was such a threat any sort of proper pressure to exert on a debtor (even if Mr Donoghue had been the debtor at all). It appears likely to me that the text message was simply an improper attempt to persuade Mr Donoghue to pay. Such behaviour clearly falls below what would be expected by society, and reflects a threat to use a statutory power unlawfully. I regard it as misconduct.

It is also significant that the evidence is that, in the run up to that text being sent by the EA, Mr Donoghue was busily attempting to prove that the goods taken into control belonged to Fresh Vape and not himself. The detail is immaterial, but the EA's office communicated to Mr Donoghue on 1 November 2024 that the creditor had accepted Fresh Vape's claim. Mr Donoghue had, I accept, had difficulty sending the relevant documents (mostly invoices) the EA's office. But the office knew that Fresh Vape was trying to claim the goods to the exclusion of Mr Donoghue (personally) because the office had emailed Mr Donoghue on 23 October 2024 asking for the information which would be required by r.85.4(1) to begin such a claim.

After some difficulty delivering the documents, they were sent by Royal Mail "signed for" post and arrived at 11:54am 30 October 2024, one minute after the EA sent the improper text message that day.

In circumstances where the EA's office had, for a week or thereabouts, been positively inviting Mr Donoghue (as director of Fresh Vape) to start his Schedule 12 paragraph 60 claim by providing the information required by r.85.4(1), I entertain serious doubt about whether what the EA said in his text message about his office's stance could possibly be correct. However, I do not think it necessary to explore that any further for the purposes of resolving this complaint. The sending of the text message was, itself, improper and misconduct.

It is a requirement of Schedule 12 paragraph 36 that before the end of the "minimum period" (which, by paragraph 36(2), 39 and reg. 37(1) of the 2013 Regulations is 7 clear days), the enforcement agent must (i) make or obtain a valuation of the controlled goods in accordance with regulations and (ii) give the debtor an opportunity to obtain an independent valuation of the goods. The making of a valuation by the enforcement agent was a matter I referred to in the orders of June and December about which adverse inferences might be drawn absent an explanation.

There is no suggestion from anyone that any such valuation occurred. That was plainly wrong and, I consider, misconduct.

I have found that the following matters do not justify a finding of misconduct on the particular facts of this complaint:

However, I have found that the EA has misconducted himself in the following ways:

Individually, each of those examples of misconduct would in my judgment warrant some kind of sanction. Some might attract a deduction from the EA's security; others might warrant a suspension of the certificate with a training requirement. I am satisfied, however, that – taken cumulatively – that the amount to serious misconduct which justifies a commensurate sanction.

I do not consider that Jordan Hewitt remains a fit and proper person to hold a certificate. There have been numerous serious breaches of Schedule 12 provisions (and its associated legislative material), and his standard of behaviour in relation to enforcement against Mr Donoghue can be seen to be well below that which right thinking members of society would be entitled to expect.

His certificate, the most recent of which was issued by the County Court at Burnley, will be cancelled pursuant to reg. 10(1)(a) of the Certification Regulations.

Pursuant to reg. 12(1) of the same regulations, he is required to surrender his certificate to the County Court at Burnley by not later than 4pm 7 days from the date this judgment is handed down. I will make an order to reinforce that requirement. I will ask the staff at the Burnley County Court to notify me whether that has been done or not.

I will further direct that he may not apply for a further certificate until he has fulfilled the following conditions:

I must now consider what if anything to do in relation to the Mr Hewitt's security, given the provisions of reg. 11 of the Certification Regulations, which provides as follows:

Mr Donoghue seeks to recover a number of significant losses to which I have referred. I am satisfied, however, that they are not within reg. 11(1) of the Certification Regulations. They are losses arising from the failure of Fresh Vape which would likely have occurred in any event, and certainly if it had complied with the possession order made over a month before the enforcement by the County Court at Manchester. They are also, even on Mr Donoghue's case, losses of Fresh Vape and not himself personally. There is no scope, therefore, for payment to Mr Donoghue under reg. 11(1)(a) in relation to failure in the due performance by the EA of his duties.

Given my findings, Mr Donoghue may apply by letter by not later than 4pm 14 days after this judgment is handed down if he seeks a deduction from the EA's security for his "costs or expenses in attending and making representations". The security, if it is in a form repayable to the EA under reg. 11(4) of the Certification Regulations must not be repaid until further order, which I will make upon receipt of any application from Mr Donoghue, or expiry of the time for doing so.

In light of my findings, I consider that I should order that the certificate which I have cancelled does not have continuing effect in relation to goods which are already in control: see reg. 13 of the Certification Regulations. I do not consider it appropriate for that to be so. In making such an order, it is not intended that control of those goods cannot be passed immediately to another enforcement agent whose certificate remains valid in order that enforcement against the relevant debtors can continue. I will delay the effect such an order so as to effect an orderly transfer of goods in control to another enforcement agent. In such cases, written notice (naming the replacement enforcement agent) must be given to all debtors and co-owners who have an interest in the goods in control forthwith.

I consider the outcome described above to be the appropriate and proportionate response to the misconduct I have found to have occurred.

That is my judgment on the complaint.