HT-2024-000316 - [2025] EWHC 434 (TCC)

The body corporate mentioned in section 132(3)(a) can only be the body corporate mentioned in section 132(2). It follows that an order for information can only be made against a corporate body that “is subject to a relevant liability”: section 132(3)(a). I accept the submission on behalf of R2-4 that no order for information can be made against them, because there is no basis for supposing that they have any relevant liability within the meaning of section 130. ACL alone was party to the underlying building contracts and ACL alone could have a relevant liability. R2-4 are, at most, associates of a company with a relevant liability. Therefore the application under the 2022 Act against R2-4 must fail.

This conclusion is contrary to the example of information orders given in the Explanatory Notes to the 2022 Act. The example shows an information order being made not against the “original body” (here, putatively, ACL) but against the company believed to be an associate (here, each of R2-4). That is, in my judgment, impossible to square with the wording of section 132. The corporate body required to give the information (section 132(2)) is the corporate body subject to the relevant liability (section 132(3)(a)), not an associate of that corporate body. The use to which Explanatory Notes to a statute may be put was discussed in Flora v Wakom (Heathrow)Ltd [2006] EWCA Civ 1103, [2007] 1 WLR 482, where Brooke LJ said:

“15.

The use that courts may make of Explanatory Notes as an aid to construction was explained by Lord Steyn in R (Westminster City Council) v NASS [2002] UKHL 38 at [2]-[6]; [2002] 1 WLR 2956; see also R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39 at [4], [2004] 1 WLR 2196. As Lord Steyn says in the NASS case, Explanatory Notes accompany a Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. They are prepared by the Government department responsible for the legislation. They do not form part of the Bill, are not endorsed by Parliament and cannot be amended by Parliament. They are intended to be neutral in political tone: they aim to explain the effect of the text and not to justify it.

16.

The text of an Act does not have to be ambiguous before a court may be permitted to take into account an Explanatory Note in order to understand the contextual scene in which the act is set (NASS, para 5). In so far as this material casts light on the objective setting or contextual scene of the statute, and the mischief to which it is aimed, it is always an admissible aid to construction. Lord Steyn, however, ended his exposition of the value of Explanatory Notes as an aid to construction by saying (at para 6):

‘What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.’

Accordingly, although the Explanatory Notes are an admissible guide to the interpretation of a statute, what matters is the interpretation of the statute, not that of the Explanatory Notes. The Explanatory Notes cannot override the statute. See, for example, Aspinalls Club Ltd v HM Revenue and Customs [2013] EWCA Civ 1464, [2015] Ch 79, per Moses LJ at [22]; and R (on the application of McConnell) v RegistrarGeneral for England and Wales [2020] EWCA Civ 559, per the Court at [37]. It cannot be assumed that the Explanatory Notes correctly state the effect of the statute. In this instance, in my view, they do not.

In oral submissions, Mr Choat candidly accepted that the example in the Explanatory Notes was inconsistent with section 132. Insofar as BDW’s application against R2-4 rests on the jurisdiction to make an information order against them, it must fail.