Decision

Decision on Escape Fitness (Twickenham) Limited

Updated 1 February 2024

Order under the Companies Act 2006

In the matter of application No. 4077

For a change of company name of registration No. 09662756

Decision

The company name ESCAPE FITNESS (TWICKENHAM) LIMITED has been registered since 30 June 2015 under number 09662756.

By an application filed on 8 November 2022, ESCAPE FITNESS LIMITED applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

On 29 November 2022, the Tribunal wrote to the applicant to advise that the application has not been served on the respondent as an application had been made to strike off the company and as such, the tribunal was therefore minded to suspend the application as being potentially without object. The applicant was granted a period of two weeks to state whether they agreed to the suspension of the application. No response was received. On 19 January 2023, the tribunal contacted the applicant and granted a period of seven days for the applicant to state whether they agreed with the suspension of the application. On 19 January 2023, the applicant contacted the tribunal to confirm that it agreed with the suspension of the application. On 23 January 2023, the tribunal wrote to the applicant to confirm that the application was suspended for a period of two months.

On 5 May 2023, the Tribunal reviewed the application and wrote to the applicant noting that Companies House register indicated that the strike off action and dissolution had been suspended due to an objection being received. The tribunal proposed suspending the application for a further period of two months. The applicant was granted a period of two weeks to comment, however, if no response was received, the preliminary view would be confirmed. No response was received. The application was therefore suspended for a further period of two months.

On 4 July 2023, the Tribunal wrote to both parties and referred to the contents of official letter dated 5 May 2023 and the suspension of the application. The tribunal confirmed that the proceedings had been suspended for nearly seven months and it was noted that the strike-off action had itself been suspended since October 2022. In light of the suspension to the strike off action and the absence of any progress at Companies House on the issue, it was the tribunal’s preliminary view to lift the suspension of the proceedings. The parties were granted a period of 14 days to provide reasons why the suspension should be maintained and were advised that if no response was received, a new timetable for the proceedings would be set. The respondent was also provided with a copy of the form CNA1 for information purposes. No responses were received.

As such, a copy of this application was sent to the primary respondent’s registered office on 1 August 2023, 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 1 August 2023, the Tribunal wrote to Tabitha Louise Holder and Ian Gregory Holder to inform them that the applicant had requested that they be joined to the proceedings. No comments were received from Tabitha Louise Holder and Ian Gregory Holder in relation to this request. On 8 September 2023, Tabitha Louise Holder and Ian Gregory Holder were joined as co-respondents. On 8 September 2023, 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 one 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) ESCAPE FITNESS (TWICKENHAM) LIMITED shall change its name within one month of the date of this order to one that is not an offending name; ^{[footnote 1]}

(b) ESCAPE FITNESS (TWICKENHAM) LIMITED and Tabitha Louise Holder and Ian Gregory Holder each 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.

All respondents, including individual co-respondents, have a legal duty under Section 73(1)(b)(ii) of the Companies Act 2006 not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court and may result in a custodial sentence.

ESCAPE FITNESS LIMITED did not request its costs in its statement of case. As such, and in line with paragraph 10.4 of the Tribunal’s Practice Direction, I make no award of costs in its favour.

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 10 October 2023

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. ↩