Decision

Decision on BMO Capital Ltd

Published 31 December 2024

Order under the Companies Act 2006

In the matter of application No. 5002

For a change of company name of registration No. 15309273

Decision

The company name BMO CAPITAL LTD has been registered since 27 November 2023 under number 15309273.

By an application filed on 1 August 2024, BANK OF MONTREAL applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

A copy of this application was sent to the primary respondent’s registered office on 21 August 2024, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail “Special Delivery” service and also by standard mail. On 18 November 2024, the parties were advised that no defence had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they so wished. No request for a hearing was made.

The primary respondent did not file a defence within the two month period specified by the adjudicator under rule 3(3). Rule 3(4) states:

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).

Under the provisions of this rule, the adjudicator may exercise discretion so as to treat the respondent as opposing the application. In this case I can see no reason to exercise such discretion and, therefore, decline to do so.

As the primary respondent has not responded to the allegations made, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) BMO CAPITAL 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) BMO CAPITAL LTD shall:

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

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

In accordance with s.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.

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.

The applicant is requesting its costs. In response to question 7 on the Form CNA 1 (“Did you warn the company that if it did not change its name that you would start legal proceedings against it? If “yes” when did you warn the company?”), the applicant confirms that it did not provide warning. Also relevant is the applicant’s comments at question 16: (“Please provide any other relevant information you may have that you consider relevant to this application”), the applicant states:

A cease and desist letter was not sent to the registered address for the company because we understand from previous experience that companies often list the 22 Wenlock Road address for fraudulent purposes/ to secure registration of a trade mark or company name. Therefore the prospects of engagement were remote so the decision was made not to incur costs of a letter.

The Tribunal notes that the applicant decided not to attempt to contact the respondent because it considers that “the prospects of engagement were remote so the decision was made not to incur costs of a letter” to the respondent. However, in the applicant’s documentation, there is nothing to indicate that the respondents registered office address does not have a mail forwarding service and that any correspondence sent to the respondent’s registered office would not be collected or forwarded to the respondent. It is noted that all Tribunal communications sent to the respondent by both special delivery and standard mail service have not been returned. In the circumstances, it is pure speculation on the applicant’s part that the address provided was not reliable for this purpose. As such, the Tribunal does not accept the applicant’s reasons for not contacting the respondent prior to making the application. In accordance with 10.4.1 of the Company Names Tribunal: Practice Direction 2014, an award of costs will therefore not be made in this case.

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.

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

Dated 19 December 2024

Susan Eaves
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. ↩