SITTING IN LONDON
Before: FORDHAM J Between: BRIAN ENGLISH -and- SECRETARY OF STATE FOR BUSINESS AND TRADE | Appellant Respondent |
Edward Hollingsworth (instructed by Rawlins Davy Reeves) for the Appellant
Dominic Hockley (instructed by Legal Services, The Insolvency Service) for the Respondent
Hearing date: 25.6.26
Draft judgment: 29.6.26
Approved Judgment
FORDHAM J
This Judgment was handed down remotely at 10am on 9.7.26 by circulation to the parties
or their representatives by email and by release to the National Archives.
FORDHAM J:
Introduction
This case raises a question of statutory interpretation about s.216(3) of the Insolvency Act 1986 and rule 22.7 of the Insolvency (England and Wales) Rules 2016. It comes before the Court as an appeal by case stated from Poole Magistrates’ Court, pursuant to s.111 of the Magistrates Courts Act 1980. The Judge was DJ Orla Austin. She has asked this Court to answer the following question, to which she answered “no”.
The Referred Question
Should the third exception within s.216 of the 1986 Act, as set out in r.22.7 of the 2016 Rules, be construed to apply to an unincorporated business (eg. a sole trader) as well as to incorporated associations?
Citing legislation
The parties through their advocates provided helpful skeleton arguments and case-law authorities. Nobody, however, provided the Court with any legislation. The thinking was that only a few legislative provisions were relevant, and these were set out in the skeleton arguments and discussed in the case-law. In my experience, the Court should always be supplied with the relevant legislation, including any relevant part or group of provisions, any interpretative provisions, and any cross-referenced provisions. In this case, relevant provisions of the statute and rules came only when a bundle of legislation was requested by the Judge, and even then only as some individual sections and rules. Further provisions were produced during and after the hearing. I would commend the endeavours of advocates to streamline the materials for the Court. A balance has to be struck. But a good starting-point would be ensuring that the pre-reading Judge can have confidence that statutory schemes are fully and properly visible from the primary sources. Especially in a case where the issue is one of statutory interpretation.
Facts
The relevant facts are these. They are taken from the Judge’s findings of fact in her stated case. In August 2000, a Company by the name Insignia Blind Co Ltd was incorporated, with the Appellant as a director. On 22 January 2020 the Company went into insolvent liquidation. The Appellant had begun trading, as a sole trader, using the trading name Insignia Shade and Shutter Company. He owned that name and had been using it continuously, trading as a sole trader since 1997. The business name and associated logo belonged to him personally and were never transferred to the Company. After the liquidation the Appellant continued trading under the name Insignia Shade and Shutter Company, under the similar name Insignia Blind Services, and also under the similar name Insignia. The Insolvency Service informed the Appellant that he was considered to be in breach of the prohibition in s.216(3)(c) of the 1986 Act and, despite reminders and warnings, he continued. He was charged on 14 October 2022 and convicted on 21 November 2024 after a trial on 12 September 2024. He was sentenced to a conditional discharge for two years and disqualified from being a director for three years.
The Soundalike Name Prohibition
By s.216(3) of the 1986 Act, Parliament enacted a Prohibition. Breach of the Prohibition can have criminal consequences (s.216(4)) and civil consequences (s.217). It arises where there is a company which has gone into insolvent liquidation. It applies to a Former Director, being a person who was, at any time within the previous 12 months, a director or shadow director of the Liquidating Company. It relates to a Prohibited Name, meaning any name which is the same as a name by which the Liquidating Company was known at any time during those 12 months, or which is so similar as to be suggestive of association with the Liquidating Company. The Soundalike Name Prohibition is disapplied if the court has given leave (ie. permission). It is also disapplied in externally prescribed circumstances. Subject to those disapplications, the Former Director is prohibited, without leave (ie. permission) from the court, at any time within the period of 5 years from the date of the liquidation, from being concerned with a Prohibited Name in any one of Three Prescribed Ways. The Three Prescribed Ways are in s.216(3)(a) to (c). They are: (a) being a director of another company with a Prohibited Name (Limb (a)); (b) other prescribed involvement in another company with a Prohibited Name (Limb (b)); and (c) prescribed involvement in a non-corporate business carried on under a Prohibited Name (Limb (c)).
Here is s.216 of the 1986 Act:
Restriction on re-use of company names. (1) This section applies to a person where a company (“the liquidating company”) has gone into insolvent liquidation on or after the appointed day and he was a director or shadow director of the company at any time in the period of 12 months ending with the day before it went into liquidation. (2) For the purposes of this section, a name is a prohibited name in relation to such a person if – (a) it is a name by which the liquidating company was known at any time in that period of 12 months, or (b) it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company. (3) Except with leave of the court or in such circumstances as may be prescribed, a person to whom this section applies shall not at any time in the period of 5 years beginning with the day on which the liquidating company went into liquidation – (a) be a director of any other company that is known by a prohibited name, or (b) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company, or (c) in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on (otherwise than by a company) under a prohibited name. (4) If a person acts in contravention of this section, he is liable to imprisonment or a fine, or both. (5) In subsection (3) “the court” means any court having jurisdiction to wind up companies; and on an application for leave under that subsection, the Secretary of State or the official receiver may appear and call the attention of the court to any matters which seem to him to be relevant. (6) References in this section, in relation to any time, to a name by which a company is known are to the name of the company at that time or to any name under which the company carries on business at that time. (7) For the purposes of this section a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up. (8) In this section “company” includes a company which may be wound up under Part V of this Act.
The Prohibition arises out of a pre-liquidation corporate name
The definition of Prohibited Name (s.216(2)) requires there to have been a Liquidating Company. It requires the Liquidating Company to have been a company which was known by a name, at some time in the 12 months prior to liquidation (s.216(2)(a)). The Prohibited Name is deliberately defined as referential to that past corporate name, whether it is the same as or suggestively similar to that past corporate name. Where a partnership has be wound up, there is no corporate name to trigger the Soundalike Name Prohibition: see Newtons (§15 below).
The Prohibition extends to post-liquidation non-corporate business
The effect of Limb (c) in s.216(3)(c) is this. It means the reach of the Prohibition extends to the carrying out of a non-corporate business such as a sole trader. This is illustrated by the present case. The Appellant was a Former Director. Insignia Blind Co Ltd was a Liquidating Company. The Appellant’s continued trading after 22 January 2020 was prescribed involvement under Limb (c) (s.216(3)(c)) in a non-corporate business carried on under a Prohibited Name.
Leave of the court
The Soundalike Name Prohibition is disapplied if the court’s permission has been obtained (s.216(3)). What is needed is an application to the court with jurisdiction to wind up companies (s.216(5)). The Secretary of State or official receiver is entitled to be heard, to identify matters which they consider relevant to the court’s discretionary power as to whether to grant permission (s.216(5)).
Circumstances which are prescribed
The Soundalike Name Prohibition is disapplied in such circumstances as may be prescribed (s.216(3)). Parliament empowered the Lord Chancellor to identify those prescribed circumstances, within company insolvency rules (see s.411). The Insolvency Rules 1986 were made by the Lord Chancellor. Their relevant provisions came into force on the same day as the relevant provisions of the 1986 Act. I was told that the Third Excepted Case in the 2016 Rules (r.22.7) is identical to the disapplying exception within the 1986 Rules (r.230). I was also told that nothing of assistance could be gained from looking further at the historical background. I proceed on that basis.
There are three species of prescribed circumstances which disapply the Soundalike Name Prohibition. In the 2016 Rules, these are called Excepted Cases. The First Excepted Case (r.22.4) is where the business of the Liquidating Company had been acquired under arrangements made with a liquidator, or a shareholder having a relevant role under a company voluntary arrangement, with prior notice to creditors. The Second Excepted Case (r.22.6) gives a prompt application for leave of the court a suspensive effect. This case is concerned with the Third Excepted Case (r.22.7):
The Third Excepted Case
The Third Excepted Case (r.22.7) is a species of prescribed circumstance (s.216(3)) which disapplies the Soundalike Name Prohibition. The square-bracketed insertion comes from r.1.2. Here is r.22.7:
Third excepted case. 22.7. The court’s permission under section 216(3) is not required where the company there referred to though known by a prohibited name within the meaning of the section – (a) has been known by that name for the whole of the period of 12 months ending with the day before the liquidating company went into liquidation; and (b) has not at any time in those 12 months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the Companies Act [2006].
Statutory dormancy provisions
The Third Excepted Case incorporates corporate dormancy (r.22.7(b)), by reference to statutory corporate dormancy provisions. Here is s.1169 of the 2006 Act:
Dormant companies. (1) For the purposes of the Companies Acts a company is “dormant” during any period in which it has no significant accounting transaction. (2) A “significant accounting transaction” means a transaction that is required by section 386 to be entered in the company’s accounting records. (3) In determining whether or when a company is dormant, there shall be disregarded – (a) any transaction arising from the taking of shares in the company by a subscriber to the memorandum as a result of an undertaking of his in connection with the formation of the company; (b) any transaction consisting of the payment of – (i) a fee to the registrar on a change of the company's name, (ii) a fee to the registrar on the re-registration of the company, (iii) a penalty under section 453 (penalty for failure to file accounts), or (iv) a fee to the registrar for the registration of a confirmation statement (4) Any reference in the Companies Acts to a body corporate other than a company being dormant has a corresponding meaning.
Corporate statutory duties of accounting records
The statutory dormancy provisions in turn use a test (s.1169(2) of the 2006 Act) which is referable to corporate statutory duties of accounting records (s.386 of the 2006 Act). Here are s.386(1) and (2):
386.Duty to keep accounting records (1) Every company must keep adequate accounting records. (2) Adequate accounting records means records that are sufficient (a) to show and explain the company’s transactions, (b) to disclose with reasonable accuracy, at any time, the financial position of the company at that time, and (c) to enable the directors to ensure that any accounts required to be prepared comply with the requirements of this Act…
Judicial observations
My attention was invited to the following authorities: Ricketts v Ad Valorem Factors Ltd [2003] EWCA Civ 1706 [2004] BCC 164; ESS Production Ltd v Sully [2005] EWCA Civ 554 [2005] BCC 435; In re Newtons Coaches Ltd [2016] EWHC 3068 (Ch) [2017] BCC 34; and Maxima Creditor Resolutions Ltd v Fealy & Barrett [2024] EWHC 2694 (Ch) [2025] Bus LR 447. None of these cases addressed the issue with which I am concerned. But a number of points were identified as derived from them.
First, there are these judicial observations about interpretation of the Act and rules.
The Court should apply a fair interpretation, whose aim is to construe the Act and rules together to create a coherent and rational scheme: ESS at §61; Maxima at §§23, 30(4)(5).
Unless the contrary intention appears, expressions within the relevant 2016 rules have the same meanings as in the 1986 Act: ESS at §62, citing s.11 of the Interpretation Act 1978.
The Court should strive to avoid adopting a statutory interpretation which penalises someone where the legislator’s intention to do so is doubtful, or penalises them in a way which is not made clear: Ricketts §30, citing Bennion on Statutory Interpretation; Maxima at §17, 30(6).
There is a need to ensure that the boundaries between the permissible and impermissible use of a prohibited name by a second company are readily ascertainable, and capable of understanding, by all those who may be affected by them: directors, creditors, judges, and juries: Maxima at §31.
Second, there are these judicial observations about the general mischief with which the Soundalike Name Prohibition is dealing:
The mischief to which the Soundalike Name Prohibition is directed is the potential for confusion (or deception) in a case where a ‘phoenix’ company arises from the ashes of an insolvent liquidation: ESS at §91; Maxima at §§24, 30(1).
The Soundalike Name Prohibition was enacted to curb ‘Phoenix syndrome’ or ‘Phoenix trading’. This results from the continuance of the activities of a failed company by those responsible for that failure, using the vehicle of a new company. The new company, often trading under the same or a similar name, uses the old company’s assets, often acquired at an undervalue, and exploits its goodwill and business opportunities. Meanwhile, the creditors of the old company are left to prove their debts against a valueless shell, and the management conceal their previous failure from the public. The phoenix company rises out of the ashes of the defunct company: Maxima at §§14, 20, 21; Ricketts at §15; ESS at §3.
The purpose of the First Excepted Case is to disapply the Soundalike Name Prohibition in the case of a non-Phoenix company: ESS at §8, citing Penrose v Official Receiver [1996] 1 WLR 482 at 489; Maxima at §21.
Third, there are these judicial observations about how the Third Excepted Case fits with the mischief:
The Third Excepted Case has been included in order to avoid the result that s.216 applies in a case where the mischief does not exist: ESS at §91; citing Penrose at 490; Maxima at §§24, 30(7).
The mischief is not perceived to exist when the company having a Prohibited Name is not a ‘phoenix’: ESS §8, citing Penrose at 489; Maxima at §§21, 30(7).
The Third Excepted Case recognises that the mischief is not considered or perceived to exist where a company having a prohibited name “has been established and trading under that name for a period of not less than 12 months” before the earlier company went into liquidation, as “a previously established and active business, trading with limited liability”: ESS at §8, citing Penrose at 489; Maxima at §§21, 30(7).
There is no mischief where an active company continues to carry on business which, prior to the liquidation of the liquidating company, is already known by a name suggestive of association with the liquidating company: ESS at §91; Maxima at §30(7). Customers and suppliers who deal with such a business will know that they are dealing with an entity with limited liability, just as they always have done. Maxima at §28, citing First Independent Factors Ltd v Mountford [2008] EWHC 835 [2008] 2 BCLC 297 at §28; Maxima at §30(7).
Fourth, there are these judicial observations about the position where the statutory words extend beyond the mischief:
The Soundalike Name Prohibition applies to sets of circumstances which are wider than ‘Phoenix Syndrome’ and ‘Phoenix trading’: Ricketts at §18, citing Thorne v Silverleaf [1994] 1 BCLC 637 at 642; ESS at §8; Maxima at §30(3).
The Prohibition does not target “bad” Phoenix situations (unscrupulousness) and the rules does not proceed on the basis of distinguishing “bad” from “good” Phoenix situations (misfortune or naive good faith): ESS at §4; Maxima at §30(3).
The Court cannot, by reference to the problem of “Phoenix Syndrome”, use a purposive approach to the interpretation of Prohibited Name (s.216(2)), so as to give the statutory language other than its natural and ordinary meaning, even if the consequential criminal sanctions might seem harsh: Ricketts at §§16-18; Newtons at §10, citing First Independent at §17; Maxima at §§13, 15, 30(3).
Where the Soundalike Name Prohibition applies to sets of circumstances which are wider than these descriptions of “Phoenix Syndrome” and “Phoenix trading”, the Former Director is always able to apply for leave of the court, and seek to satisfy the court that no relevant risk arises: Ricketts at §19; Newtons at §7.
The Appellant’s Interpretation
Mr Hollingsworth for the Appellant invites the answer “yes” to the Referred Question (§2 above). That would mean that, yes, the Third Exception in r.22.7 of the 2016 Rules, to the Soundalike Name Prohibition within s.216(3) of the 1986 Act, should be construed to apply to an unincorporated business (eg. a sole trader) as well as to incorporated associations.
Mr Hollingsworth is inviting the Court to interpret r.22.7 by, in effect, reading in the following underlined words:
Third excepted case. 22.7. The court’s permission under section 216(3) is not required where the company or business there referred to though known by a prohibited name within the meaning of the section – (a) has been known by that name for the whole of the period of 12 months ending with the day before the liquidating company went into liquidation; and (b) has not at any time in those 12 months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the Companies Act [2006] or in the case of a business has throughout those 12 months been established and trading.
This was the essence, as I saw it, of Mr Hollingsworth’s argument in support of his invited interpretation:
This interpretation of r.22.7 is necessary as a fair interpretation, to construe the Act and rules together, to create a coherent and rational scheme. Unless the interpretation of r.22.7 recognises the position of an established and active business, there is incoherence and irrationality. Indeed, this is the interpretation which is necessary to save r.22.7 from what would otherwise be a conclusion of ultra vires, on grounds of unreasonableness. The Lord Chancellor’s statutory power (s.216(3)) does not extend to prescribing circumstances which are incoherent and irrational. Alternatively, this is an interpretation which is necessary, reading penalising provisions non-expansively in accordance with the principle of doubtful penalisation.
The objectively identifiable purpose of the s.216 Soundalike Name Prohibition is to ban the use of a lookalike name, so as to protect creditors, customers, the public and the public interest. The circumstances prescribed in r.22.7 are necessary to ensure that only a name which is new or was sleeping (dormant) is caught by this penalising prohibition. Not a name which was established and active. A name which was established and active does not attract the prohibition, because no ban is necessary to protect creditors, customers, the public or the public interest.
The paradigm case to which the prohibition (s.216(3)) and the exception (r.22.7) apply is the corporate scenario. This is the Phoenix syndrome. Under Limbs (b) or (c) of s.216(3), the Former Director is now – within 5 years – involved with another corporate entity using a lookalike name to the previous company now in insolvent liquidation. Whether the corporate entity is new or was dormant, it has arisen from the ashes of the insolvency, as a Phoenix. None of which applies if the corporate entity was established and active and was already known by the lookalike name during the whole of the past 12 months. Nobody is being misled. Nobody needs protecting. That is the paradigm. The prohibition (s.216(3)) and the exception (r.22.7) operate back-to-back. There is equivalence. There is symmetry. This is a coherent and rational scheme.
The non-paradigm case is where the Former Director’s potentially-prohibited conduct falls within Limb (c) of s.216(3). By Limb (c), Parliament extended the Soundalike Name Prohibition so that it applies to use in connection with “business”. The Lord Chancellor’s matching exception (r.22.7) must be interpreted to operate back-to-back, with equivalence and symmetry. This is necessary to make good on the judicial recognition that the Third Excepted Case has been included in order to avoid the result that s.216 applies in a case where the mischief does not exist (see §18(1) above). Whether a non-corporate entity is new or was dormant, it has arisen from the ashes of the insolvency, as a Phoenix. That is why Limb (c) has been included. But none of this applies if the non-corporate entity was established and active and was already known by the lookalike name during the whole of the past 12 months. Nobody is being misled. Nobody needs protecting. No justification can be identified for the failure to match the exception to the prohibition, in the context of a non-corporate business. An unjustified interpretation should not be adopted by the Court.
There is textual and structural support for this interpretation. In r.22.7, the phrase used is “section 216(3) … where the company there referred to”. That must be referable to all three Limbs of s.216(3). There is a “company referred to” in Limb (a) and (b) of s.216(3). But in Limb (c) what is referred to is “a business carried on (otherwise than by a company)”. The relevant entity is therefore a business. This text and structure supports the interpretation of “the company there referred to” as “the company or business there referred to”.
It is true that it will not be enough to interpret “the company there referred to” in r.22.7 as “the company or business there referred to”. That is because a “business” would need to be established and active. That includes not having been a dormant business. But the statutory dormancy provisions (s.1169 of the 2006 Act) and statutory duties of accounting records (s.386 of the 2006 Act) apply only to a company and not to a non-corporate business. It would make no sense to try to apply those duties to a non-corporate business. All of this is true, but there is a clear solution. The Courts have recognised that the criterion is whether the relevant entity “has been established and trading under that name for a period of not less than 12 months” (§18(3) above). This is straightforward, fair and readily applicable to any non-corporate business. It was identified in Penrose, decided by the High Court in October 1995. It was endorsed in ESS, decided by the Court of Appeal in May 2005. It has been settled law, through to Maxima in 2024. It is not a gloss on the rule. Its recognition is not the introduction of something external to the rule, but simply the principled application of an authoritative and settled formulation which the Courts have discerned and derived from the rule itself.
Human rights
In the arguments before the Judge, it was submitted on behalf of the Appellant that his suggested interpretation could be derived from the Human Rights Act 1998 and the statutory human rights protection afforded to possessions under ECHR A1P1. Mr Hollingsworth told me that he accepted that if he could not succeed on his other arguments, the HRA could not assist. A single short paragraph had been included in the skeleton argument, but the point went unmentioned in sustained oral submissions. Since the point was wisely dropped, Mr Hockley did not need to deal with it and nor do I.
Analysis
In my judgment, the answer to the Referred Question (§2 above) is “no”. No, the Third Exception in r.22.7 of the 2016 Rules, to the Soundalike Name Prohibition within s.216(3) of the 1986 Act, should not be construed to apply to an unincorporated business (eg. a sole trader) as well as to incorporated associations. No, r.22.7 is not interpreted as if reading in “or business” and “or in the case of a business has throughout those 12 months been established and trading”. I accept the submissions of Mr Hockley. I agree with the Judge.
My reasons are as follows:
The words of r.22.7 should be given their natural and ordinary meaning. There is no legitimate basis for the Court to rewrite “the company there referred to” to mean “the company or business there referred to”. There is no legitimate basis for the Court to rewrite “and (b) has not at any time in those 12 months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the Companies Act [2006]” to mean “and (b) has not at any time in those 12 months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the Companies Act [2006] or in the case of a business has throughout those 12 months been established and trading”. Parliament conferred a broad power, reflected in s.216(3), on the Lord Chancellor to prescribe appropriate circumstances to disapply the Prohibition. Parliament did not circumscribe the power, by indicating the nature or extent of those prescribed circumstances. The rule has not been shown to be ultra vires or unreasonable, still less to warrant its judicial expansion. Nor would this be a permissible rectifying construction. It would be judicial rule-making. The statutory power to make and amend the insolvency rules belongs to the Lord Chancellor as primary decision-maker. Not to the Court.
As to the relevant present and future conduct, the s.216(3) statutory Prohibition extends to include relevant post-liquidation participation in “a business” being carried on “otherwise than by a company” (§8 above). But that is express and deliberate. It is what Limb (c) of s.216(3) adds to relevant post-liquidation participation in a company in Limbs (a) and (b). It is unmistakable. As to past conduct, the statutory Prohibition arises (by s.216(2)(a)) from the pre-liquidation use of a name by a corporate entity (§7 above). That too is express, deliberate, and unmistakable. Then, in designing this disapplying exception (r.22.7), the Lord Chancellor focused on parallel pre-liquidation use of a name by a parallel corporate entity. The “company referred to” in s.216(3) is a clear reference to “other company that is known by a prohibited name” in s.216(3)(a) and “any such company” in s.216(3)(b). The disapplying exception (s.22.7) operates by reference to corporate statutory dormancy provisions, themselves engaging corporate statutory duties of accounting records. Using these makes sense because it is a “company”. The word “company” has the same mean as in the parent Act. It is clearly distinct from “business carried on (otherwise than by a company)” in s.216(3)(c). All of this is express and deliberate, and unmistakable.
The rule-maker designed a disapplying exception around readily ascertainable objective standards, applicable to companies, using the corporate statutory dormancy provisions (s.1169 of the 2006 Act), themselves engaging corporate statutory duties of accounting records (s.386 of the 2006 Act). That means boundaries which are readily ascertainable, and capable of understanding, by all those who may be affected by them. To rewrite the rule as invited by the Appellant would be to introduce a far less concrete test, engaging no statutory provisions for verification. It would also apply that unspecific and unverifiable criterion in relation to non-corporate entities (businesses), while continue to deny its application in relation to corporate entities (companies).
Finally, all of this applies alongside an express protection within the primary legislation. Parliament provided in s.216(3) that the Soundalike Name Prohibition is disapplied in prescribed circumstances, but also “with leave of the court”. The Lord Chancellor prescribed the circumstances in r.22.7 against that statutory backcloth. A Former Director can apply to the court, with suspensive effect if they do so promptly (r.22.6), for s.216(3) leave of the court (§9 above). In that forum they will be able to make their case, identifying the facts and circumstances of their own established and active business. The Secretary of State and official receiver will be able to make representations (s.216(5)). This is the release-valve, in situations where the Soundalike Name Prohibition is said to apply to a set of circumstances wider than the policy mischief (§19(4) above), where the court can consider the protection of creditors, customers, the public and the public interest.
I do not see this as a unfair interpretation, or an incoherent or irrational scheme. It involves penalisation, but with provisions which are clear, not doubtful. It uses readily ascertainable boundaries. It gives the statutory language its natural and ordinary meaning. It provides the person affected the right of prospective access to a court.
Conclusion
The appeal is dismissed. The Referred Question (§2 above) is answered as follows. The Third Exception in r.22.7 of the 2016 Rules, to the Soundalike Name Prohibition within s.216(3) of the 1986 Act, should not be construed to apply to an unincorporated business (eg. a sole trader) as well as to incorporated associations. The parties were agreed, having received this judgment in draft, that the appropriate Order is to dismiss the appeal and order the Appellant to pay the Respondent’s costs, to be assessed if not agreed.