Decision

Decision on Animal Concern (Scotland) Ltd

Published 18 September 2020

ORDER under the Companies Act 2006

In the matter of application No. 3013

By Animal Concern Ltd

for a change of company name of registration

No. SC632956

BACKGROUND

1. The company name ANIMAL CONCERN (SCOTLAND) LTD (“the primary respondent”) has been registered since 10 June 2019 under number SC632956.

2. By an application filed on 3 September 2019, Animal Concern Ltd (“the applicant”), applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (“the Act”).

3. The applicant explains that the name associated with it which caused it to make the application is Animal Concern (Scotland) Ltd. It states:

“We were founded as Animal Concern (Scotland) Ltd in 1986 and, because we were becoming involved in some work outside of Scotland, we changed our name to Animal Concern Ltd in 1992. Between 1988 and 1992 we were involved in numerous campaigns, generated a very great deal of positive media coverage throughout Scotland and beyond and gained many new members. We also helped establish local groups in towns up and down the country and generated publicity in many local papers and on local radio.”

4. The applicant explains that it objects to the primary respondent’s name because:

“Despite changing our name we continued to be referred to by many people and some media reporters as Animal Concern (Scotland) Ltd. Even now, 17 (sic) years after changing our name, we are occasionally referred to as Animal Concern (Scotland) Ltd in the media and we do receive the occasional donation made out to Animal Concern (Scotland) Ltd which our bank accepts. More worrying is that we still receive legacies left to Animal Concern (Scotland) Ltd. Now, if a lawyer needs to find Animal (Concern) Scotland Ltd regarding payment of a legacy, the first contact details they are going to find are those of this new company.”

5. The applicant further explains that on 29 July 2019 it wrote to the primary respondent’s director and secretary, Iona Middleton. A copy of that letter is provided as is a copy of the applicant’s follow-up email of 17 August 2019, in which it stated:

“When I didn’t get a reply from you to my signed for letter of July 29th regarding the above, I checked on the Royal Mail website only to discover that they had not been able to deliver it and apparently had not attempted a second delivery. I asked them to try again and I see that it did get to you on the 14th August.”

6. The applicant asks that Ms Middleton be joined to the proceedings as a co-respondent. In response to the question on the Form CNA1 which reads “What action do you want the Tribunal to take?” one of the applicant’s responses read:

“…Another option would be to instruct Ms Middleton to change the name of Animal Concern (Scotland) Ltd to something less likely to cause confusion such as Animals (Scotland)?…”

7. A copy of the application was sent to the primary respondent’s registered office on 8 October 2019, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008 (“the rules”). The copy of the application which was sent by Royal Mail “Signed For” and ordinary post allowed until 8 November 2019 for the filing of a defence. On the same date, the Tribunal wrote to Ms Middleton (at the same address) again by “Signed For” delivery and ordinary post, advising her that the applicant had asked that she be joined to the proceedings as a co-respondent; she was allowed until 8 November 2019 to comment upon that request.

8. The substance of the letter sent to the primary respondent on 8 October 2019, was as follows:

“If you wish to file a defence, you should complete the enclosed form CNA 2 (notice of defence) and return it within one month of the date of this letter, that is on, or before, 8 November 2019. This is in accordance with rules 3(3) and 3(4) of the Company Names Adjudicator Rules 2008. A fee of £150 must accompany form CNA 2 or paid before the expiry of the deadline for the filing of form CNA 2. Before you decide whether to file a defence, you may wish to refer to The Company Names Tribunal Practice Direction (copy enclosed). If you choose not to file a form CNA 2 and the £150 fee the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006. If you decide not to defend your company name, the application will normally succeed. A decision in favour of the applicant will normally include an award of costs in favour of the applicant, provided costs have been requested by the applicant. If you inform the tribunal that you did not receive adequate notice that an application would be made before it was filed, the tribunal will normally not award costs to the applicant. If you are not defending the application and you consider that you did not receive adequate notification from the applicant before the filing of the application, you should inform the tribunal on or before the date for the filing of the defence. Once an order is issued by the tribunal the adjudicator cannot revisit any costs issues.”

9. On 6 November 2019, the letters sent to both the primary respondent and Ms Middleton by “Signed For” delivery were returned to the Tribunal by the Royal Mail. The labels used by the Royal Mail and placed on the envelopes to indicate that the letters were “refused” were dated “26/10/19”; I shall return to these envelopes below. The copy of the letter that had been sent to Ms Middleton by ordinary post was also returned to the Tribunal marked “RTS – Gone Away 10/10/19.”

10. In official letters to the parties dated 7 January 2020 sent by both Royal Mail “Signed For” and ordinary post, the Tribunal stated:

“The official letter dated 8 October 2018 (sic) informed you that if you wished to defend your company name you should file a form CNA2 on or before 8 November 2018 (sic). This is in accordance with rules 3(3) and (4) of the Company Names Adjudicator Rules 2008. As no CNA2 has been filed within the period set, in accordance with rule 3(4) the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006. I note however that Iona Middleton resigned as a company director on 10 June 2019 before the application was filed. Therefore it is the preliminary view of the adjudicator that she will not be joined to the proceedings. However, in accordance with rule 5(3) either party has the right to be heard. The request must be made on form CNA4. A fee of £100 must accompany the form CNA4. A period of 14 days from the date of this letter is provided for either party to make a request for a hearing; so any request must be made on or before 21 January 2020. If no hearing is requested within this term the adjudicator will consider making an order.”

11. In a letter dated 14 January 2020, the primary respondent (signed by “E Stokes”), stated:

“You make reference to an official letter dated October 8th 2019 sent to Animal Concern Scotland Ltd and requiring a response by November 8th 2019. I am writing to inform you no such letter has been received or signed for. Please confirm you accept this is the case. if not, please provide the following: (1) the address the October 8th letter was purportedly sent to, (2) confirmation it was signed for, (3) the date of the signing and signature (if possible).”

12. The Companies House website indicates that Elizabeth Mary Frances Stokes was appointed as the primary respondent’s sole director and secretary on 2 August 2019. The Tribunal responded to that request in an official letter dated 12 February 2020 (sent by both “Signed For” and ordinary post), in which it stated:

“Our files show that an official letter dated 8 October 2019 sent by “signed for” post was returned to this office on 6 November 2019, indicating that service was refused. A copy of the letter and envelope is enclosed for your information and I have also included a copy of the Track and Trace details from the Royal Mail website. May I also mention that the same letter was sent by standard Royal Mail post and has not been returned.”

13. The parties were granted a period of 14 days i.e. until 26 February 2020 to request a hearing in relation to this matter. I note that the letter sent to the primary respondent by “Signed For” delivery was returned to the Tribunal by the Royal Mail on 10 March 2020 this time marked “not called for.” Regardless, on 24 February 2020, a Form CNA4 accompanied by the appropriate fee was filed. The Form CNA4 was again signed by Elizabeth Stokes.

The appointment of the hearing

14. In an official letter dated 16 March 2020, the Tribunal wrote to the parties advising them that the primary respondent’s request for a hearing would take place, by telephone, at 10.30am on 31 March 2020. The letter contained the following:

“Please notify the Hearings team of all the names of persons attending.”

15. The covering email contained the following:

“Please could you supply us with the telephone number to contact you on the day.”

16. The applicant responded in an email dated 19 March 2020 in which it indicated that its Company Secretary, Mr John F Robins, would represent it at the hearing. In an email dated 23 March 2020 sent from animalconcernscotland@gmail.com, Ms Stokes stated:

“With reference to your letter of 16th March I as sole director and company secretary will represent Animal Concern (Scotland) Ltd at the hearing appointed for Tuesday 31st March at 10:30am. My telephone number is 07xxxxxxxxx.”

17. On 25 March 2020, the Tribunal received an email from the primary respondent attached to which were two documents. The first document is headed “Submission by Animal Concern (Scotland) Ltd”; the letter bears the name “E Stokes”. The second, obtained from the Royal’s Mail’s “Track and Trace” website, is in relation to the letter sent by the Tribunal to the primary respondent on 8 October 2019; I shall return to this document below.

18. On the morning of the hearing, the Tribunal received an email from the applicant (timed at 10.25 and copied to animalconcernscotland@gmail.com) attached to which were four documents referred to by the applicant as:

“…four recent legacies received by the [the applicant]. Two of these were left to Animal Concern (Scotland) Limited despite it being 18 years (sic) since we dropped (Scotland) from our name.”

19. At the appointed time on the morning of the hearing I attempted to contact Ms Stokes on the telephone number she had provided in her email of 23 March 2020. Numerous attempts were unsuccessful. With the agreement of Mr Robins, the hearing was rescheduled for the same time the following day, thus allowing Ms Stokes sufficient time to react to the various voice and emails that had been left/sent to her on 31 March. Repeated attempts by the Hearings Clerk to contact Ms Stokes by both telephone and email using the details shown above prior to and on the morning of 1 April 2020 were also unsuccessful.

20. As the primary respondent had requested the hearing and paid the official fee and as there was nothing to suggest that the written submissions provided by Ms Stokes were filed in lieu of her attendance at the hearing, rather than in support of oral submissions to be made by her at the hearing, the Tribunal undertook to attempt to contact the primary respondent to clarify the position.

21. Unfortunately, following the Covid-19 outbreak in late March 2020, the building in which the Company Names Tribunal is located (i.e. the Intellectual Property Office in Newport, South Wales) was largely inaccessible and, until very recently, it has not been possible for the Tribunal to issue letters to the parties by Royal Mail. In an email dated 1 April 2019, Mr Robins stated:

“While I understand the Company Names Tribunal is doing all it can to ensure this hearing takes place before issuing an adjudication, I would like to note that we agree to the continuation of proceedings under protest.”

22. Following the dates of the original and rescheduled hearing, the Tribunal routinely tried to contact the primary respondent by both telephone and email, again with no success. I am advised that although the telephone number provided was initially directing calls to voice mail (with messages left asking Ms Stokes to contact the Tribunal as a matter of urgency), for a period of time the telephone number provided went “out of service” only to then come back into service.

23. On 1 July 2020, I wrote to the parties. My letter, which was sent by email, Royal Mail “Signed For” and ordinary post read as follows:

“Dear Ms Stokes, On 24 February 2020, the Tribunal received a Form CNA4 (completed by you) in which the primary respondent requested a hearing to consider whether the application filed on 3 September 2019 should be treated as unopposed. In an official letter dated 16 March 2020, the parties were advised that the hearing would take place by telephone at 10.30am on Tuesday 31 March 2020. In an email dated 16 March 2020, the Tribunal asked the parties to provide it with the telephone number on which they wished to be contacted on the day of the hearing. You responded to that email on 23 March 2020. The email was sent from animalconcernscotland@gmail.com. You stated: “With reference to your letter of 16th March I as sole director and company secretary will represent Animal Concern (Scotland) Ltd at the hearing appointed for Tuesday 31st March at 10:30am. My telephone number is 07xxxxxxxxx.” On 25 March 2020, the Tribunal received two documents from you by email, one of which was headed “Submission by Animal Concern (Scotland) Ltd”. There was no suggestion in that document or in the email which accompanied it (which was blank), that the written submissions were filed in lieu of your attendance at the hearing, rather than in support of oral submissions to be made by you at the hearing. In view of the above, at the appointed time on the morning of the hearing I attempted to contact you on the number you provided but without success. With the agreement of Mr Robins (who was representing the applicant at the hearing), the hearing was rescheduled for the same time the following day. Repeated attempts by the Hearing Clerk to contact you by both telephone and email using the details shown above prior to and on the morning of 1 April 2020 were also unsuccessful. As I am sure you are aware, the Company Names Tribunal is located at the Intellectual Property Office in Newport, South Wales. Following the Covid-19 outbreak in March, it has not been possible for the Tribunal to issue letters to parties by the Royal Mail. However, following the date of the hearing, the Tribunal has routinely tried to contact you by both telephone and email, again with no success. I am advised that although the telephone number provided was initially directing calls to voice mail (with messages left asking you to contact the Tribunal as a matter of urgency), for a period the telephone number provided went “out of service” only to come back into service recently. The applicant is, unsurprisingly, anxious to have the matter resolved as a matter of urgency. With that in mind, in his email of 1 April 2020, Mr Robins stated:
“As Mrs Stokes apparently requested this hearing and to facilitate it going ahead, I suggest you write to her at her home address which is: xxxxxxx” Although for the reasons mentioned above it has not been possible until now to write to you at this address, a copy of this letter is being sent to both the above address and to the primary respondent’s registered address. The letters are being sent by email, Royal Mail “Signed for” and ordinary post, in the hope that it will give the primary respondent the best opportunity to make its position known to the Tribunal. The following appears in the Tribunal’s Practice Direction: “7.1 It is a requirement under rule 4(2)(b) that evidence is copied to other parties in the proceedings. The adjudicator expects that all other correspondence, including requests for extensions to time periods, will also be copied to other parties in the proceedings, except where confidentiality has specifically been requested under rule 6(2)(d). If parties fail to observe this stated practice of copying correspondence, the adjudicator will invoke rule 6(2)(a); it is therefore in the interests of all parties, to reduce both costs and time, that correspondence is copied to the other parties at the same time that it is sent to the Tribunal.”(my emphasis). Despite the above, it is unclear to me to what extent the parties have copied their correspondence to the other side. In order not to further delay the issuing of this letter by either Royal Mail or email, I will arrange for the Tribunal to send copies of all the relevant correspondence to the parties as soon as that becomes practical.
The primary respondent is now allowed a final period of 21 days from the date of this letter i.e. on or before 22 July 2020 in which to contact the Tribunal and to confirm whether the hearing it requested is still required. If nothing is heard from the primary respondent by this date, the Tribunal will proceed on the basis that a hearing is no longer required and I will issue a decision on the basis of the papers on file.” 24. In a letter dated 14 July 2020 (received by the Tribunal on 22 July 2020), Ms Stokes stated, inter alia: “I acknowledge receipt of your letter dated July 1st 2020 and I note what you say….

I confirm the hearing requested is still required…”

25. In a letter to the primary respondent dated 4 August 2020, I stated:

“While I note the second paragraph of the letter begins “In confidence…”, I assume this is intended to be a request that the information contained therein be withheld from public inspection rather than from the applicant… for present purposes, it is sufficient for me to record that the difficulty the Tribunal has had contacting you stems from a combination of factors, including self-isolation and lack of access to mobile and Internet services.

However, as I mentioned in my previous letter, the applicant is anxious to have this matter resolved as a matter of urgency. Consequently, a hearing has been scheduled to take place, before me, by telephone, at 10.30am on 27 August 2020. I will telephone the parties at the time indicated.

You now have until 18 August 2020 to either: (i) provide the Tribunal with an alternative mobile or land-line number on which you can be contacted on the day of the hearing, or (ii) arrange for alternative representation at the hearing and advise the Tribunal and applicant accordingly, or (iii) provide written submissions in lieu of attendance at the hearing and to copy same to the applicant. This letter has, once again, been sent to the primary respondent by email (to animalconcernscotland@gmail.com) and by Royal Mail “Signed For” and ordinary post. It has been sent to the primary respondent’s registered office and to the xxxxxxx address. I have enclosed a Form CNA7 for you to complete should you wish all further correspondence to be sent to the xxxxxx address. As I mentioned in my previous letter, it is unclear to what extent the parties have copied their correspondence to the other side. Consequently, a copy of all the relevant correspondence which does not appear to have been copied by the parties to the other side has been included with the copies of this letter sent by Royal Mail.
If nothing is heard from the primary respondent by 18 August 2020, the hearing will not go ahead and I will issue a decision on the basis of the papers on file.”

26. In a letter dated 8 August 2020 (received by the Tribunal on 20 August 2020), and marked “cc John Robins Animal Concern Ltd”, Ms Stokes stated:

“I acknowledge receipt of your correspondence dated 4th August 2020 and copies of various correspondence. In the present circumstances I have no alternative but to provide written submissions for the hearing scheduled for August 27th 2020. I therefore submit to you copies of my correspondence to you dated January 14th 2020, March 25th 2020, July 4th 2020 and August 8th 2020…”

27. On 26 August 2020, the Tribunal wrote to the applicant (copied to the primary respondent), stating:

“The official letter of 4 August 2020 and the primary respondent’s letter of 8 August 2020 and attachments (which I note was copied to you) refers. As you are aware, the primary respondent has elected to file written submissions in lieu of attendance at the hearing.”

28. As it transpired that letter and attachments had not been received by Mr Robins, a copy was sent to the applicant by the Tribunal by email on 26 August 2020. On the morning of the hearing, the Tribunal received a further email from the applicant which, I note, was copied to the primary respondent.

29. The hearing took place before me as scheduled with Mr Robins once again representing the applicant. At 13.20 on the day of the hearing, a message was left on the Tribunal’s answerphone by an unidentified gentleman, who stated:

“With reference to APP 3013/TS/ EJ in the company registration SC 632956 the letter dated the 26th of August 20. Mrs Elizabeth Stokes no longer stays at xxxxxx. I’ve picked up this correspondence and she’s no longer attendant in this property. Thank you very much, cheers now bye. Mrs Stokes is no longer available. She’s no longer at xxxxxxx, bye.”

Hearing discussion

30. In her letter of 25 March 2020, Ms Stokes stated:

“I understand the adjudicator has discretionary powers. It would be a denial of natural justice for Animal Concern (Scotland) Ltd. not to be given the opportunity to file a form CNA 2 and a defence to the Application by Animal Concern Ltd.”

31. At the hearing, I took Mr Robins through the various rules (see below) and we discussed the sequence of events surrounding the apparent non-receipt by the primary respondent of the official letter of 8 October 2019. Where relevant, I shall keep his oral submissions in mind in reaching a conclusion.

32. The relevant rules are as follows:

“3 (4) The primary respondent, before the end of that period, shall file a counter-statement on the appropriate form, otherwise the adjudicator may treat it as not opposing the application and may make an order under section 73(1).

7(1) The adjudicator may extend (or further extend) any period which has been specified under any provision of these Rules even if the period has expired.

(2) Any party can request an extension of any time period specified under any provision of these Rules.

(3) Any request for a retrospective extension must be filed before the end of the period of 2 months beginning with the date the time period in question expired.

(4) Any request made under paragraph (2) shall be made on the appropriate form and shall include reasons why the extra time is required. A request for a retrospective extension shall also include reasons why the request is being made out of time.”

The request to join Ms Middleton<br.

33. In the official letter of 7 January 2020 the parties were advised that as Ms Middleton had resigned as a director on 10 June 2019, it was the Tribunal’s preliminary view that she should not be joined to the proceeding as a co-respondent. As the applicant elected not to challenge that preliminary view within the period allowed, I need say no more about this aspect of the case in this decision.

Considerations

34. As far as I am aware, to date no defence on Form CNA2 accompanied by the official fee of £150 has been filed by the primary respondent.

35. In reaching a conclusion, it is necessary for me to determine whether the discretion provided in rule 7(1) or by the use of the word “may” in rule 3(4) should be exercised in the primary respondent’s favour.

36. With the exception of my own decisions at first instance in BL-O-411-17 - “Aldi Group” and BL-O-445-18 “Novartis Shareholders Association” (neither of which was the subject of appeal), as far as I am aware, there is no case law specific to this Tribunal from the High Court on how the issue before me should be approached i.e. a request to file a late defence. In those circumstances, I will look, as this Tribunal has done on other occasions (and as I did in Aldi Group and Novartis Shareholders Association), to guidance provided in the context of trade mark proceedings i.e. where a party has failed to file a defence in the timeframe allowed. Although in trade mark proceedings such periods are non-extendable and the discretion afforded to that Tribunal narrow, they nonetheless provide useful guidance on the type of issues one ought to have in mind when reaching a conclusion as to whether a late filed defence should or should not be allowed. The decisions I have in mind are those of the Appointed Persons (“AP”) in Kickz AG and Wicked Vision Limited (BL-O-035-11) and Mark James Holland and Mercury Wealth Management Limited (BL-O-050-12).

The approach to extendable and non-extendable deadlines

37. The Mercury case mentioned above provides helpful guidance as to the factors that one needs to bear in mind when deciding whether a late defence in trade mark proceedings should be admitted; I shall return to these factors below. At paragraph 31 of that decision, the AP contrasts how discretion should be exercised when a deadline is inextensible with how it should be exercised when a deadline is extendable (as it is in these proceedings, albeit now only under rule 7(1)). In that regard, reference is made to the guidance provided by the AP in another trade mark case i.e. Siddiqui’s application (BL-O-481/00) in which the AP stated: “4. Accordingly, it must be incumbent on the application for the extension to show that the facts do merit it. In a normal case this will require the applicant to show clearly what he has done, what he wants to do and why it is that he has not been able to do it. This does not mean that in an appropriate case where he fails to show that he has acted diligently but that special circumstances exist an extension cannot be granted. However, in the normal case it is by showing what he has done and what he wants to do and why he has not done it that the registrar can be satisfied that granting an indulgence is in accordance with the overriding objective and that the delay is not being used so as to allow the system to be abused.”

38. The answers to the questions posed above (adapted for these proceedings) are, it appears to me, as follows: What did the primary respondent do from the date the original letter was sent by “Signed for” delivery on 8 October 2019?

It responded to the official letters of 7 January 2020 (seeking further information) and 12 February 2020 by requesting a hearing.

What does the primary respondent want to do?

To defend the application by filing Form CNA2, although as mentioned above, to date no Form CNA2 and official fee has been received by the Tribunal.

Why was the primary respondent unable to file its defence by the deadline set?

39. The Royal Mail’s “Track and Trace” report in relation to the official letter of 8 October 2019 which served the application on the primary respondent reads as follows:

“Tracking no. WM340765946GB

Sorry, we were unable to deliver this item at 09-10-2019 as the address was inaccessible. We will attempt to deliver your item again on the next working day.

Access issues prevented us from delivering this item. This could be due to a number of reasons. including locked communal entrances. bad weather, health and safety issues or road closures.

05.26pm Delivery attempted – address inaccessible”.

40. In her letter of 25 March 2020, Ms Stokes stated:

“…along with a Royal Mail track and trace reporting relating to a delivery attempt (of form CNA1) made on October 9th stating that the address was inaccessible and another attempt will be made the next working day (it appears this was not done). … I am the sole director and company secretary of Animal Concern (Scotland) Ltd. At the period of time in question last October the registered office of the company was unoccupied and I was on mainland Argyll and not present on the Isle of Islay.

No form CNA1 was delivered to the registered office of [the primary respondent] either by Royal Mail “to be signed for” or by standard delivery. A Royal Mail report states [as above]. It is reasonable to assume this would have been the same for a standard delivery item sent also…
… No ‘to be signed for’ sent to the registered office of Animal Concern (Scotland) Ltd last October was refused and no standard delivery was delivered and as already stated the registered office was unoccupied at the time and I was on mainland Argyll.”

41. There appears to be no dispute that the Tribunal’s letter of 8 October 2019 was sent to the correct address or that on 9 October 2019, the Royal Mail attempted to deliver this letter. However, the Royal Mail’s “Track and Trace” website states that the letter was not delivered on 9 October 2019 because the address was “inaccessible”. The envelope that was returned to the Tribunal bears the hand written text “P739 LEFT 9/10/19”. It is my understanding that “P739” refers to the card left by the Royal Mail when an attempt to deliver a letter which requires a signature has been unsuccessful. The Track and Trace website also indicates that “We will attempt to deliver your item again on the next working day”. As mentioned in the Tribunal’s letter of 12 February 2020, the letter sent to the primary respondent by ordinary post was not returned to the Tribunal, unlike the letter sent to the then potential co-respondent, Miss Middleton, which was returned to the Tribunal marked “RTS – Gone Away 10/10/19” i.e. the day after the original attempt to deliver the letter to the primary respondent was made.

42. In addition, I note that the Royal Mail label on the envelope returned to the Tribunal on 6 November 2019 bears the heading “We were unable to deliver this item because” and one of the options reads “address inaccessible”. Had the letter been returned to the Tribunal at the time the delivery was originally attempted, it is most likely to have indicated that the reason for its return was “address inaccessible.” That is not, however, the case. The Royal Mail label is dated 26 October 2019 and indicates that the letter was “refused”. The fact that the Royal mail label records that the letter was “refused” some seventeen days after the original attempt to deliver it failed, strongly suggests that the Royal Mail attempted to redeliver the letter on that date but that the letter had, despite Ms Stokes’ submissions to the contrary, been “refused.” The fact that the Royal Mail appears to have attempted to redeliver the official letter of 8 October 2019 at a later date, finds support by reference to the applicant’s letter before action, which was sent to the primary respondent’s registered office by Royal Mail on 29 July 2019 but which was only successfully delivered after a second attempt was made on 14 August 2019.

43. However, even if the Royal Mail had been able to access the address to deliver the “Signed For” letter on 9 or 10 October 2019, on the basis of Ms Stokes’ submissions i.e. “At the period of time in question last October the registered office of the company was unoccupied and I was on mainland Argyll and not present on the Isle of Islay”, it appears that no one would have been available to sign for the letter in any case. Absent evidence or submissions to the contrary, I infer that had the Royal Mail attempted to redeliver the letter the following day, even if accessible, that would have remained the case.

44. Although Ms Stokes does not explain for how long the registered office remained unoccupied, the fact that the Royal Mail did not mark the envelope “refused” until 26 October 2019, points to the registered office being occupied by someone at that time (even if not by Ms Stokes). Thus it appears the primary respondent’s registered office was occupied by at least 26 October 2019 i.e. well in advance of the response date of 8 November 2019.

45. At the very least, the primary respondent should have put appropriate measures in place to deal with correspondence at times when its registered office was unoccupied. However, on the basis of the chronology outlined above, had someone at its registered address not refused to accept the official letter of 8 October 2019 on 26 October 2019, it would still have had ample opportunity to file a defence by the deadline of 8 November 2019. As the primary respondent’s failures were, in my view, of its own making, it is not appropriate for me to utilise rule 7(1) in the primary respondent’s favour. However, in Siddiqui the AP goes on to explain that:

“this does not mean that in an appropriate case where [the primary respondent] fails to show that [it] has acted diligently but that special circumstances exist an extension cannot be granted.”

There are, in my view, no special circumstances which justify me reaching a different conclusion.

46. Consequently, I will now go on and look at the factors identified by the AP in the Mercury case to see whether notwithstanding that conclusion, I should exercise the power available to me under rule 3(4) and in so doing allow the primary respondent to file a late defence. The factors identified by the AP (adapted for the purposes of these proceedings) are as follows:

The circumstances relating to the missing of the deadline including the reasons why it missed and the extent to which it was missed;

As described above.

The nature of the applicant’s allegations in its Form CNA1;

As described above.

The consequences of treating the primary respondent as defending or not defending the application

47. If the primary respondent is allowed to defend its company name and if it files a Form CNA2 and the appropriate fee, the proceedings will continue to the evidence rounds. If it is not, the primary respondent will lose its ability to oppose the application, the application will succeed and if the primary respondent does not change its name to a non-offending name in the period allowed, a new company name will be determined for it.

Any prejudice caused to the applicant by the delay

48. I have already described the circumstances surrounding the hearing above. Even if it had been the primary respondent’s intention not to attend the hearing it requested (and indicated it was attending) and instead intended to rely upon the written submissions it filed on 25 March 2020 in lieu of a hearing, it had ample opportunity on both the day of the hearing and thereafter to communicate that fact to the Tribunal and the applicant. In addition, in his email of 1 April 2020, Mr Robins states: “There is now a very somber reason for urgency in relation to this situation. Many of those who made provision for Animal Concern in their will during the period when (sic) were Animal Concern (Scotland) Limited are people who may now be at very high risk of succumbing to Covid-19. I do not want to see their goods intentions thwarted…”

49. In her written submissions dated 8 August 2020, Ms Stokes states:

“Mr Robins has informed the tribunal of concerns that the recently formed Animal Concern (Scotland) could be mistakenly contacted by lawyers regarding bequests made over 28 years ago.

However, this is unlikely as the accounts of Animal Concern Ltd. show that only a handful of legacies have been received by Animal Concern Ltd. (less than 1 a year) over the last 10 years and of course Animal Concern (Scotland) Ltd. only existed for 4 years between 1988 and 1992. Animal Concern Ltd. should inform the tribunal whether (or as I suspect not) any of these legacies were originally bequeathed to Animal Concern (Scotland) Ltd…”

50. At the hearing, Mr Robins reiterated his concerns in this regard. Notwithstanding Ms Stokes’ comments, as the documents attached to Mr Robin’s email of 31 March 2020 demonstrate, the name Animal Concern (Scotland) has appeared in bequests dating from September 2012 and June 2015. As the primary respondent was not incorporated until June 2019, these can only be references to the applicant, albeit under its previous name. For the reasons explained by Mr Robins, the delay has, in my view, a very real capacity to prejudice the applicant.
Any other relevant considerations, such as the existence of related proceedings between the same parties

51. Although the parties and their officers are very well known to one another, at the hearing, Mr Robins confirmed there were no related proceedings between them.

52. I do, of course, accept that to find in the applicant’s favour will prejudice the primary respondent (as it will have to change its company name, or have it changed for it). However, keeping in mind the circumstances surrounding the missing of the deadline together with, in particular, the likely prejudice to the applicant, leads me to conclude that it is not appropriate for me to exercise my discretion in the primary respondent’s favour, the consequence of which is that the application succeeds.

What happens next?

53. The primary respondent did not file a defence within the one month period specified by the adjudicator under rule 3(3) or at any point up to the date of this Order. Therefore, in accordance with Section 73(1) of the Act I make the following order:

(a) ANIMAL CONCERN (SCOTLAND) LTD shall change its name within one month of the date of this order to one that is not an offending name ^{[footnote 1]};

(b) ANIMAL CONCERN (SCOTLAND) LTD shall:

(i) take such steps as are within its power to make, or facilitate the making, of that change; (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.

54. In accordance with Section 73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.

55. In any event, if no such change is made within one month of the date of this order, I will determine a new company name as per Section 73(4) of the Act and will give notice of that change under Section 73(5) of the Act. Expenses

56. The applicant has been successful. In its Form CNA1, it indicates it is claiming expenses and explains that it wrote to the primary respondent on 29 July and 17 August 2019. In her letter of 14 July 2020, Ms Stokes states: “I also wish to make it clear and placed on record that Animal Concern (Scotland) Ltd has not received any copies of correspondence from Animal Concern Ltd whatsoever and indeed has never ever received any communications from Animal Concern Ltd of any kind and at anytime.”

57. As I mentioned above, the applicant’s letter of 29 July 2019 was sent by post to the primary respondent’s previous director, Iona Middleton, at its registered office and allowed ten days for a response. In his email of 9 August 2020, Mr Robin provides an extract from the Royal Mail website which indicates that the letter was delivered at 4.30pm on 14 August 2019 and was signed for by “Iona Middleton”. Although Miss Middleton formally resigned from the primary respondent on 10 June 2019, Companies House were not advised of that fact until 15 October 2019. Thus at the date Mr Robins wrote to the primary respondent, Ms Middleton appeared on the Companies House website as the primary respondent’s Director and Secretary. Consequently, as the applicant gave the primary respondent notice of its intention to apply to this Tribunal if it did not comply with its request, it is entitled to a contribution towards its expenses, based upon the scale of expenses published in the Practice Direction which, I note, includes the following: “Those without representation will normally receive 50% of the above but will receive the full expenses.”

58. In the above quotation, the word “expenses” is also used to refer to, inter alia, “Official fees arising from the action that have been paid by the successful party.” As the applicant has represented itself, I award it expenses on the following basis:

Fee for application: £400

Preparing a statement: £200

Preparing for and attendance at the hearings (scheduled for 31 March) and held on 27 August 2020: £200

Total: £800

59. I order Animal Concern (Scotland) Ltd to pay to Animal Concern Ltd the sum of £800 within 21 days of the expiry of the appeal period, or within 21 days of the final determination of this case if any appeal against this decision is unsuccessful. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to uphold the application; there is no right of appeal in relation to expenses. Appeal

60. Any notice of appeal against this decision to order a change of name must be given within one month of the date of this order. Appeal is to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland.

61. The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.

Dated 16 September 2020

Christopher Bowen Company Names Adjudicator

1. 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 - to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or to give rise to a further application under section 69. ↩