Decision

Decision on Afro Classics Register CIC

Published 16 April 2024

Companies Act 2006

Decision on costs

In the matter of application No. 4166 by “Afro Classics Register” for a change to the company name of Afro Classics Register CIC (Community Interest Company), company registration No. 13970591

Introduction

1. This decision on costs arises from an application to the Company Names Tribunal by “Afro Classics Register” (“the Applicant”) in objection under section 69 of the Companies Act 2006 (‘the Act”) to the name of company registration No. 13970591, which had been incorporated as Afro Classics Register CIC (“the Respondent Company”).  The registered name of the Respondent Company was changed as of 23 February 2024, to Victory Classics Car Club CIC.  This change made was very late in these protracted proceedings; while the change of the name removed the need for a decision regarding the merits of the parties’ positions, the Applicant is entitled to an award of costs.  This decision also addresses various issues that have arisen in these proceedings.

Relevant legal provisions

2. Section 69 of the Act (now) reads as follows:

69 Objection to company’s registered name

(1) A person (“the applicant”) may object to a company’s registered name on the ground

(a) that it is the same as a name associated with the applicant in which he has goodwill, or

(b) that it is sufficiently similar to such a name that its use in the United Kingdom [or elsewhere] would be likely to mislead [members of the public in the United Kingdom or elsewhere] by suggesting a connection between the company and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70).

(3) The company concerned shall be the primary respondent to the application.

[Any of its members or directors may be joined as respondents.] [Any of the following may be joined as respondents-

(a) any member or person who was a member at the time at which the name was registered;

(b) any director or person who was a director at the time at which the name was registered.]

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for the respondents to show-

(a) that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

[(b) that the company-

(i) is operating under the name, or

(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii) was formerly operating under the name and is now dormant; or]

(c) that the name was registered in the ordinary course of a company formation business and the company is available for sale to the applicant on the standard terms of that business; or

(d) that the name was adopted in good faith; or

(e) that the interests of the applicant are not adversely affected to any significant extent.

If none of those is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection (4)(a) [(b)] or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.

3. The above extract reflects the wording of section 69 following changes that came into force at the beginning of March 2024, introduced by the Economic Crime and Corporate Transparency Act 2023. Although this decision does not determine the merits of the Applicant’s objection or of the Respondent’s defences, section 69 still provides relevant context, including in respect of co-respondents and the criteria against which a name may be considered objectionable, which are points that arise later in this decision.  In the latter regard, section 73 of the Act is also relevant; it reads as follows:

73 Order requiring name to be changed

(1) If an application under section 69 is upheld, the adjudicator shall make an order-

(a) requiring the respondent company to change its name to one that is not an offending name, and

(b) requiring all the respondents-

(i) to take all such steps as are within their power to make, or facilitate the making, of that change, and

(ii) not to cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

(2) An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely-

(a) to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or

(b) to give rise to a further application under section 69.

(3) The order must specify a date by which the respondent company’s name is to be changed and may be enforced-

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree of the Court of Session.

(4) If the respondent company’s name is not changed in accordance with the order by the specified date, the adjudicator may determine a new name for the company.

(5) If the adjudicator determines a new name for the respondent company he must give notice of his determination-

(a) to the applicant,

(b) to the respondents, and

(c) to the registrar.

(6) For the purposes of this section a company’s name is changed when the change takes effect in accordance with section 81(1) (on the issue of the new certification of incorporation).

Outline of proceedings

4. The Applicant is a car club started up in 2017 and which is an unincorporated membership organisation. ^{[footnote 1]}  The application for a change of name was initiated by the filing, on 26 January 2023, of a Form CNA1, by Mr Gary Gordon on behalf of the Applicant. The Applicant had previously written to the Respondent Company on several occasions to request that it change its name. Indeed, the filed Form CNA1 states that prior to submitting its application, the Respondent Company was provided with a copy of the application for review and to propose changes should they believe it to contain any factual inaccuracies, and to minimise costs. It states that the Respondent Company neither acknowledged receipt of the document nor proposed changes.

5. The Respondent Company was incorporated 11 March 2022 with three directors:  Kaye Alet Sangster, Raymax Blackwood and Ferdinand Carty. Mr Blackwood and Mr Carty resigned as directors in January 2023, leaving Ms Sangster as sole director.

Co-respondents

6. On 9 February 2023, the Tribunal served the Form CNA1 and informed Ms Sangster that the Applicant requested that she be joined as co-respondent. The Tribunal letter explained that Ms Sangster would be jointly and severally liable with the Respondent Company for any adverse cost award in the proceedings and gave Ms Sangster a deadline of 9 March 2023 to comment on the request (and for the Respondent to file its defence).  No response on this request was received by the deadline. Indeed, even by 29 September 2023, no response had been received and on that date the Tribunal wrote to Ms Sangster confirming that, as the only officer of the Respondent Company, she was joined as co-Respondent.

7. On 1 November 2023 Ms Sangster submitted in an email that she was abroad in February 2023, and that she had not ignored the February correspondence. ^{[footnote 2]} Ms Sangster filed a Form CNA4, requesting an oral hearing, the purpose of which was not fully clear, but it was the understanding of the Tribunal that the request was made in order that Ms Sangster be permitted to orally challenge the decision that she be joined as co-respondent. A procedural hearing for that purpose was provisionally scheduled for 23 November 2023, but was later vacated because Ms Sangster indicated that she no longer required it to proceed.

8. Section 69(3)(b) of the Act now provides that anyone who was a director at the time at which the name was registered may be joined as a co-respondent. Both Raymax Blackwood and Ferdinand Carty were directors at the time at which the name was registered. Mindful that Ms Sangster has been left bearing the financial burden of the costs in these proceedings, Mr Gordon has asked that those two former directors also be joined as co-respondents. There may be equitable merit in that course, but since these proceedings were completed before the date on which the changes to section 69 of the Act came into force, I am doubtful that it is appropriate to engage the new provision retrospectively or to prolong these proceedings still further by affording Mr Blackwood and Mr Carty the opportunity to resist being joined.

9. I note that a case management conference (CMC) was held on 8 August 2023, which allowed into the proceedings the respondent’s evidence from Ms. Sangster filed on 7 August 2023, following her having filed the requisite form requesting that extension of time.  It is my recollection that one of the other former directors attended the CMC along with Ms Sangster - I believe it was Mr Blackwood.  This tends to indicate an ongoing interest in these proceedings at least by that former director. However, given my view against the retroactive use of provision of amended section 69(3)(b), it will be a matter for the former directors of the Respondent Company to consider whether it is proper and appropriate that they share responsibility for the costs award made herein.

Requests for security for costs and for off-scale costs

10. The Applicant has repeatedly emphasised to the Respondents its desire to minimise avoidable costs. That said, it is of course the case that if the Respondent considered that it had good reason to defend its company name registration, then it was entitled to do so. The Applicant expressed its concern that the Respondents were drawing matters out, with repeated requests for extensions of time, increasing costs and delaying resolution. The Applicant sought security for costs. The Tribunal responded by letter on 12 December 2023, giving its preliminary view on the costs request, the content of which included the following:

This letter responds to the very numerous items of correspondence that have been sent to the company names tribunal (CNT) in the last few weeks, particularly the numerous copies of e-mail correspondence from Mr. Gordon to Ms Sangster. The CNT has repeatedly sought to discourage its being copied into the correspondence from the parties. That message is reiterated yet again; materials in these proceedings should properly be filed at the relevant stages of the evidence rounds, with communications outside of those times being exceptional rather than the rule.

However, the CNT understands Mr. Gordon’s wish to be transparent about the communications between the parties and has noted various positions put forward by the Applicant and the Respondent, including some shifting positions. Looking across the correspondence in the round, the following points are noted, in no particular order:

1. Mr Gordon has filed a draft Form CNA6 outlining a security for costs request for 15,000 pounds. The draft request refers to the comparable or greater cost amounts acknowledged by the Respondent and the still greater costs Mr Gordon claims to have actually incurred.

It is also noted it appears (27 April 2023 email from Mr Gordon to Ms Sangster) that neither Ms Sangster nor her colleagues have reimbursed Afro Classics Register £900 arising from its “legally enforceable decision to regain control of the Afro Classics Register domain.” ^{[footnote 3]} If this is the case, it adds weight to Mr Gordon’s concerns about the prospect of recovering any costs that may be awarded in the present proceedings.

2. Mr Gordon refers to his repeated attempts to minimise costs and to reach settlement (see for instance his email to the CNT of 20 November 2023 relaying the offer of settlement set out in his email of 18 November 2023).

3. In the absence of an agreement between the parties, the Applicant has indicated that it intends to seek an award of costs off-scale if its application for a change of name should succeed.

4. Ms Sangster had stated that she would like to accept the offer put forward by Mr Gordon that she pay £5000 (and that Raymax Blackwood and Ferdinand Carty pay other specified amounts). It does not appear that this has been followed through.

5. Ms Sangster is sole co-Respondent since she is the only officer of the Respondent. Ms Sangster has indicated that neither she nor the Respondent has available funds. No other party has stepped up to provide support to Ms Sangster or the Respondent. ^{[footnote 4]}

6. Ms Sangster has at times expressed a wish for an oral hearing, or mediation. An oral hearing would entail further time and expense. Mediation requires the agreement of both sides, but it is the understanding of the CNT that the Applicant is confident of its grounds for the change of name application and is content for a decision to be made from the papers filed.

7. Parties are reminded of what needs to be established to warrant an order for a change of name.  The Applicant (Afro Classics Register) must show (i) that when Afro Classics Register applied to the CNT for the Respondent company to change its name from Afro Classics Register CIC, Afro Classics Register had goodwill associated with the name “Afro Classics Register”; (ii) that the name of the Respondent company is sufficiently similar to, or the same as Afro Classics Register, such that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the Applicant.

8. If that is established, the burden shifts to the respondent to establish its defences, which in the present case are that the name was adopted in good faith and / or that the interests of the Applicant are not adversely affected to any significant extent.  In determining whether a defence of good faith is supportable, the CNT will first ascertain what the respondent knew about the matters in question and then decide whether, in the light of that knowledge, the respondent’s conduct is dishonest, or otherwise falls short of the standards of acceptable commercial behaviour.  This assessment of good faith will be judged based on the ordinary standards of honest people; a respondent’s own standards of honesty (or acceptable commercial behaviour) will not be relevant to the enquiry.

9. All parties have felt considerable levels of stress arising from these proceedings.

Points arising

It should be noted that the request for security for costs is to be treated separately from the request for off-scale costs.  Security for costs are requested on Form CNA6, which typically entails a fee of £150. (As noted above, a draft has been shared.)

Any CNT award of cost will not be made until after a decision is made by CNT based on the representations submitted by the parties.  Should there be a hearing costs will increase.  (Mr. Gordon raises these points in his email to Ms Sangster, Blackwood and Carty on 18 November 2021.)

The general rule is that costs are awarded on a contributory basis, and do not reflect the actual costs incurred by parties.  Where a party has engaged legal representatives, the contribution is calculated on the basis of the scale set out in paragraph 10 of the Company Names Practice Direction.  Where not legally represented, the costs are usually 50% of the scale.  Costs may be adjusted to reflect unreasonable behaviour by the parties, which may include unreasonable delays.  It should be understood, however, that simply because a party may fail to make its case, or establish a defence, that is not a basis for awarding off-scale costs.

Given the very drawn-out course of these proceedings, the CNT gives the following preliminary view:

The case indicated in the draft CNA6 is sufficient, and it is not considered necessary for the Applicant to refile that form with the associated fee.  However, nor is the £15k sum requested considered warranted as security for costs.

Instead, the Respondent or Co-Respondent is to pay the sum of £3000 as security for costs.  This security is payable in view of the seemingly admitted lack of funds at the disposal of the Respondent or Co-Respondent, and the stated history of non-payment on the part of the Co-Respondent.  It also bears in mind the obvious close similarity of the names, such that this is not an instance where the Applicant’s case is obviously without merit.

Once the security sum has been paid, the parties’ claims may be assessed from the papers.

In the event that the Applicant fails in showing goodwill associated with the name Afro Classics Register, or if the Respondent succeeds in establishing either of its claimed defences, the security for costs will be returned to the Respondent or Co-Respondent.

If the Applicant should succeed in its claims, the CNT will consider what costs should be payable, which would include the full fees paid for the filing of the various forms in these proceedings.  In the event that such costs award were less than the security sum, the balance would be returned to the payor.”

11. The letter gave the bank transfer details through which the Tribunal may receive the security payment, then continued:

The CNT will notify both parties once it has been received.  If no payment is made the CNT will treat the contested company name as no longer defended and will order that it be changed accordingly.  The CNT will then also consider the award of costs to the Applicant.

To accommodate the possibility that either party may take issue with this preliminary view a provisional CMC has been scheduled for 10:30 on Tuesday 9th January 2024 – however, if by Tuesday 19th December 2023 there has been no request for the CMC to proceed and detailing the basis for the request, the provisional date will be vacated and the preliminary view will be confirmed and the security for costs will fall to be paid by 12 January 2024, else the name change application will be considered no longer defended.

12. Ms Sangster initially requested a CMC to challenge the preliminary view, but by her email of 5 January 2024 she then requested to vacate the CMC scheduled for 9 January 2024, leaving intact the deadline for payment of security for costs.

13. Although Ms Sangster no longer wished to proceed with the CMC she had requested, Mr Gordon enquired on 7 January 2024 about using that time allocation to discuss increasing the amount of the costs security.  On 8 January 2024, the Tribunal replied, including as follows:

It would not be appropriate to award a greater level of security for costs in circumstances where the respective claims and evidence have not been fully considered by the tribunal, nor the defence of the application abandoned by the Respondent(s).

Again, as was explained in the letter of 12 December 2023, if the payment of £3000 security for costs is not paid, the tribunal will treat the contested company name as no longer defended and will order that it be changed accordingly.  The CNT would at that point consider an award of costs to the Applicant and invite submissions from the parties in that event.

If the contributory security for costs are paid by 12 January 2024, a decision will be made from the papers unless the parties request an oral hearing (with applicable form and fee).

14. Ms Sangster duly paid the £3000 in security for costs, stating that she would “advise the Tribunal of my decision on whether I agree to have the decision made by Oral Hearing or on the Papers, after I have taken legal advice.”

Change of company name

15. On 26 January 2023, Ms Sangster, on behalf of the Respondent Company sent this email (emphasis as in the original):

Dear Tribunal

This is to confirm my position on the matter of AFRO CLASSICS REGISTER CIC and the decision on the club’s name going forward.

The decision made is that I will proceed in the next 14 days to change our club’s name at Companies House  to a name that will not be offending to anyone. There’ll be no need to have a judgement on the case either from the Paper or by Oral Hearing.

I will notify the Tribunal once this has been completed.

I do not  think that off the scale cost should be applied as I believe my conduct was well within reason.

I look forward to hearing from you.

Applicant’s request for decision

16. Later that day, in response to Ms Sangster’s above email, Mr Gordon replied as follows (emphasis as in the original):

Dear Ms Sangster,

Thank you for confirmation that you wish the decision to be made off papers.  You do not wish to proceed with CNT arranging an oral hearing which is reflected in the respondents decision not to pay the hearing fee.

The claimant awaits, from the CNT, guidance and clarification in relation to the respondent’s email of 26 January 2024 (below).

This is by far the most expedient and cost effective route for a decision based on the merits of the claim and defence.  Thereafter, costs will need to be considered and any award will, we believe, take into account the conduct of the parties.  The claimant will be requesting off scale costs.

On 9 January 2024, the CNT provided the respondent with the option to have the claim treated as no longer defended, it wrote:

“….if the payment of £3000 security for costs is not paid by the end of 12 January 2024, the tribunal will treat the contested company name as no longer defended and will order that it be changed accordingly. There will be no decision of the merits of the claims from the papers - simply an order for the name to be changed based on it being deemed no longer defended. The CNT would at that point consider an award of costs to the Applicant and invite submissions from the parties in that event…”

The respondent in paying the security of cost confirmed that it wished for the decision to be made based on the merits of the claim.  This reflects the claimant’s desire for an objective assessment of the respondent’s actions and conduct.

On 19 January 2024 the CNT wrote to the parties advising that it would be making a formal decision based on the merits of the claim; CNT only required the respondent to confirm its wish for a decision from an oral hearing or off papers.

The relevant text reads as follows:

“…I refer to Ms Sangster’s email of 9 January 2024 in which she states she will advise the Tribunal of her decision on whether to have the proceedings decided by oral hearing or from the papers once she has sought legal advice….”

“…A period of 7 days i.e., on or before the 26 January 2024 is allowed for Ms Sangster to inform the tribunal how she wishes to proceed,  the less costly option of a decision from the papers or an oral hearing. If an oral hearing is requested the request must be made on a Form C N A 4 with the relevant fee.

The claimant welcomes your extremely late indication that you may finally change the name of Afro Classics Register CIC.   It has always been possible for this to be done on-line at a cost of £8, and the claimant is disappointed by the respondent’s failure to have done so at the outset or earlier in the claim.

17. I do not consider the above response from Mr Gordon an accurate reflection of Ms Sangster’s position in her email, since she states the intention to change the name of the Respondent Company and expressly refers to the avoidance of a decision at all, whether based on the papers or following a hearing.

18. Mr Gordon indicated his wish to pursue a written decision by the Tribunal to determine the merits of the parties’ respective positions, which I, as the adjudicator, considered to be a redundant step.  Mr Gordon asked that this point be considered by the Deputy Director responsible for the Company Names Tribunal.  The Deputy Director provided the following explanation in his letter of 23 February 2024:

In response to your primary concern regarding production of a written decision, it is important that I set out the purpose and remit of the Company Names Tribunal - both of which are fundamental to the point. The legal provisions of most relevance to this point are sections 69 and 73 of the Companies Act 2006 (‘the Act’). The former states that an applicant can object on the basis that a registered name is the same or similar to one in which it has goodwill, and that failure to provide a defence will result in the objection being upheld. The latter sets out the consequences of such failure, being that the adjudicator shall make an order requiring the Respondent to change its name to one that is not offending. Taken together, these provisions encompass the core purpose and responsibility of the Tribunal. They also establish the parameters of what the Tribunal can and cannot do.

On receipt of an application and following commencement of proceedings, the Tribunal’s role is to determine whether or not an order is required directing that the Respondent change its name to one that is not offending.  If, during proceedings, the Respondent takes such action of its own volition, the Tribunal’s role becomes redundant.  In such circumstances, the remedy being sought by the applicant is achieved without the need for any determination by the Tribunal – which then removes the need for a decision.  Whilst I understand your interest in obtaining a decision that might help establish, in your words, a “clear legal position on use of the name ‘Afro Classics Register’”, the Tribunal has no obligation or remit to produce such a document.  In the event that Ms Sangster changes the name at Companies House (as we believe she has), and that name is not offending, then the Tribunal will have no further role to play other than to consider an appropriate award of costs.

I understand that your expectation of receiving a written decision is partly connected to comments made in our email of 19 January 2024 (sent at 11:55), which invited parties to state their preference for either an oral hearing or a written decision.  Your preference was already noted at that time, and so the Respondent was provided with a short further period to express their view.

I should clarify that the Tribunal presented this request without prejudice to any other separate action, taken by either party, that could result in the proceedings being resolved and concluded (for example, withdrawal of the application by the applicant or, as is the case in these proceedings, a statement of the Respondent’s intent to change the name to one that is not offending).  Our email of 19 January 2024 was not, therefore, intended as formal confirmation that either a hearing would be arranged, or a written decision produced, regardless of all further eventualities.

Applicant’s request for strike out

19. On 7 November 2023, the Tribunal wrote to address various issues raised by the parties in their then recent filings and correspondence.  One of those issues was a request by the Applicant for strike-out of the proceedings.  The Tribunal responded as follows:

The applicant argues that “the respondent has not presented and cannot present a credible defence for its mis-conceived actions, and based on its evidence, including false accusations, spurious and malicious statements, the applicant has been advised that there is not a reasonable prospect of the respondent’s / Kaye Sangster’s defence being successful based on law, facts, and their evidence submission.”

The applicant highlights that what it regards as a prolonged and misguided action is having an ongoing detrimental impact on the applicant’s resources, goodwill, and reputation. The applicant highlights that under The Company Names Adjudicator Rules 2008 section 5(2) the “The adjudicator may strike out the application or any defence in whole or in part if it is vexatious, has no reasonable prospect of success or is otherwise misconceived.”

The Applicant believes that the evidence submitted by the Respondent/ Kaye Sangster is largely devoid of facts and does not address the legal requirements or satisfy the relevant threshold of the law.

While it may be open to the CNT to strike out a defence, the matter has now progressed through to the point where the matter is approaching being ready for a substantive decision. To gauge the strength or otherwise of the respondent’s defence would require consideration of the evidence filed and submissions made. It is therefore not appropriate to consider strike out at this stage.

These have indeed been prolonged proceedings.  It of course remains open to the parties to settle the matter between themselves, avoiding the need for an oral hearing on the substantive claims or submissions in lieu of such a hearing.  If the parties matter settle matters between themselves would avoid the need for the CNT to produce a written decision, and potentially related orders, including for costs. Parties are encouraged to consider their options.

20. I reiterate in this decision that it would not have been appropriate to strike out the defence or to otherwise peremptorily end the proceedings.  The dispute between the parties is based on a situation where a car club was set up in 2016 by Raymax Blackwood and Ferdinand Carty, and in which Kaye Sangster also had an interest. The club was fairly informal and involved a WhatsApp group. Around June 2017, Mr Gordon became involved in the club and appears to have fulfilled a significant role in developing the administration of the club. This much at least appears common ground between the parties. Mr Gordon registered a trade mark relating to the club. That step appears to have been without the knowledge of Mr Blackwood or Carty or Ms Sangster.  These latter three then registered the Respondent Company - and that step appears to have been without the knowledge of Mr Gordon or the Applicant’s Executive Committee. Again, I think this much appears common ground between the parties.  In instances where there is a falling out or difference of opinion between members of an unincorporated organisation, determining the locus of the goodwill and questions of good faith are highly fact-dependent. It would clearly have required close reading of all the papers filed before a determination might fairly have been made.

Applicant’s claim that the new name remains an offending name

21. On 8 February 2024 Mr Gordon emailed the Deputy Director responsible the company names tribunal. The points made in that email included these points:

6.  Under Section 74 of the Act, we find grounds for appealing the decision that Victory Classic Car Club is not an offending name, considering its potential for being inappropriate, inflammatory, and incendiary.  This in our opinion makes the name offensive in accordance with ad in the spirit of the prohibited names provision.

7.   Section 76A of the Act grants the Secretary of State power to direct a company to change its name if used for criminal purposes. We argue that the respondent’s claim of subsuming Afro Classics Register is dishonest and intended to deceive. When aligned with the conduct of the respondent throughout these proceedings (including manipulation of evidence covered by a statement of truth) to represent fraudulent misrepresentation. 

22. Section 74 of the Act reads: “An appeal lies to the court from any decision of a company names adjudicator to uphold or dismiss an application under section 69”. In the present case, the Tribunal has not as such made such a decision, rather the Respondent Company changed its contested name via Companies House by voluntary resolution. While the Applicant may perceive an implication in the chosen new name of the Respondent Company and even consider the choice offensive, the Tribunal confirms its view that the new name - Victory Classics Car Club CIC - is not an offending name as defined in section 73(2), the text of which I set out earlier.  Section 76A is not a matter over which this Tribunal has any jurisdiction.

Guard against abuse of process

23. This Tribunal has made no order for a change of company name.  However, if the Respondent Company should seek to change its name again, to one that appears an offending name, obliging the Applicant to make a second application for change of name, the tribunal would very likely consider that an abuse of process given the extent to which these current proceedings have been pursued only to be set aside at the point where the matter was ready for decision.  In those circumstances an order for a change of name would likely be issued and the Applicant would be entitled to any actual costs incurred in the pursuit of that second application.

Determination of costs

24. The Company Names Tribunal Practice Direction includes the following provisions on costs:

10.1.1 Under rule 11, the adjudicator may award costs (in Scotland, expenses) to any party in the proceedings.  The adjudicator will not normally award the actual costs incurred but will follow a scale of costs.  The scale of costs will give an indication to the parties at the outset as to what they are likely to have to pay if they lose.

For those with legal representation the scale of costs will be as follows:

Procedure	Costs
Preparing a statement and considering the other side’s statement	From £300 to £500 depending on the nature of the statements
Preparing evidence and considering and commenting on the other side’s evidence	From £500, if the evidence is light, to £2,500 if the evidence is substantial. The award can go above this range in cases involving an exceptional amount of relevant evidence but may be cut down if the successful party had filed a significant amount of unnecessary evidence
Preparing for and attending a hearing	Up to £1,500 per day of hearing, capped at £3,000 for the full hearing unless one side has behaved unreasonably. From £100 to £500 for preparation of submissions, depending on their substance, if there is no hearing
Expenses	(a) Official fees arising from the action that have been paid by the successful party (other than fees for extensions of time.)(b) The reasonable travel and accommodation expenses for any witnesses of the successful party required to attend a hearing for cross examination

Those without representation will normally receive 50% of the above but will receive the full expenses.

25. The Applicant is entitled to full payment of the fees it has paid in support of the forms it has filed in these proceedings, which from the very extensive electronic case file I believe to be as follows:

Form CNA1 Application form: £400

Form CNA3 – Notice of giving evidence: £150 (x 2)

26. In addition to the above £700 in fees, I consider that the following sums fairly reflect the steps undertaken by the Applicant:

i. Preparing a statement and considering the other side’s statement: £500 ii. Preparing evidence and considering and commenting on the other side’s evidence: £1400

27. The above two actions total £1900 (totalling £2600 in combination with the fees that are payable in full).

28. I have noted that the Applicant not only gave the Respondent Company warning of these proceedings, but shared its draft application, recommended legal advice and repeatedly encouraged the minimisation of costs. Despite this, there have been several delays in these proceedings directly attributable to the Respondent - for instance, a delay both in filing its defence and in filing its evidence. Whilst those delays were duly processed through the proper course of filing forms requesting extensions of time with the requisite fees by the Respondent, there have been other instances where the Respondent has caused avoidable delay - most significantly of course in the very last-minute decision to change the contested company name, and a delay in identifying what the changed name would be.

29. I also note that while the Tribunal waived the £150 fee for the Form CNA6 request for security of costs, the Applicant undertook the drafting of that request, which request the Tribunal granted.

30. On the other hand, it is my view that there is a real degree to which the Applicant has itself complicated and prolonged proceedings.  The electronic case file is multiple times longer than is typical; this is in large measure attributable to the parties having sent communications to Tribunal, whether in direct address, or by copying or forwarding correspondence between the parties and others. The majority of those communications appear to be related to points of objection by Mr. Gordon challenging the basis or accuracy of the materials filed by Ms. Sangster. The Tribunal impressed on the parties that it is not appropriate for the Tribunal to be part of these piecemeal interim communications and asked parties to refrain from further such communications. The Tribunal explained that if the Applicant wished to make points in challenge to the content of the evidence that has been filed by the respondent, then the appropriate course was to raise those points in the Applicant’s reply evidence/submissions according to the directed timeframes. The repeated interventions on the part of the Applicant - courteous though they invariably were - placed considerable additional demand on the tribunal resource, which had to monitor and respond to incoming emails, often several daily. The Respondent has referred to the stressful impact of such a volume of correspondence - though I acknowledge too that the proceedings have been stressful and costly in time and resources for all concerned.

31. I also note that the Applicant has not formally conducted these proceedings through legal professional representation and the Practice Direction states that those without representation will normally receive only half the costs awarded for undertaking relevant steps in the proceedings.

32. However, I consider the Applicant has been put to a lot of work that may have been avoidable if the Respondent Company had taken the action to change its name at an earlier stage, rather than leaving it to the very last opportunity to do so. I therefore make no reduction reflecting that the Applicant has acted without professional legal representation. I also consider it reasonable, taking matters in the round, that the full £3000 paid by the Respondent as security for costs should be awarded to the Applicant.

33. The Respondent Company registered under No. 13970591, formerly known as Afro Classics Register CIC, is ordered to pay to the Applicant, the sum of £3000. This sum is currently held at the Intellectual Property Office, which hosts the Company Names Tribunal.  Mr Gordon, as the representative of the Applicant, is invited to confirm the bank details to which the Finance Department is to pay the awarded costs.

34. Under section 74(1) of the Companies Act 2006, an appeal can only be made in relation to the decision to uphold or dismiss an application under section 69. There is no right of appeal in relation to costs.

Dated 10 April 2024

Matthew Williams
Company Names Adjudicator

1. The club appears, at least latterly, to have an executive committee and a constitution. ↩

2. (This is borne out by Ms Sangster having filed a Form CNA5 on 3 March 2023, stating that she was abroad with limited access to communications and requesting an extension of time in order “to seek proper legal advice.” It is noted that the Applicant objected to the extension of time for the filing of a defence, since the Applicant had repeatedly forewarned the Respondent Company of its planned objection and had recommended that it seek legal advice.) ↩

3. Mr Gordon provided the reference for the relevant Nominet decision and cited a passage of the decision in which that forum had characterised the view, put forward on behalf of the CIC in that instance, as one that “stretches credulity”. ↩

4. Mr Gordon put it to Ms Sangster as part of an email he sent her on 11 July 2023 (copied to the Tribunal) that “You previously advised the Tribunal that Afro Classics Register CIC has not collected any membership fees, specifically you have stated, “…until the matter is settled, no membership fee is being collected…”” and he asked that Ms Sangster confirm the extent that the Respondent “‘members’ have guaranteed to cover your costs” and “whether in the absence of Afro Classics Register CIC having any funds of its own if you personally are underwriting the costs incurred to date.”  The Tribunal saw no response to this request. ↩