Decision

Decision on FX Pro World Limited

Updated 2 July 2021

Order under the Companies Act 2006

In the matter of application No. 3250

For a change of company name of registration No. 12642358

Decision

The company name FX PRO WORLD LIMITED has been registered since 3 June 2020 under number 12642358.

By an application filed on 18 August 2020, FXPRO UK LIMITED applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

In its Form CNA1, the applicant states:

Moreover, FxPro World Limited, operating through the website fxproworld.com (screenshot attached evidencing use of the certificate of incorporation in their website) claims to be a broker, even thought [sic] they are not licensed to offer these regulated activities in the UK.

On 28 September 2020, the Tribunal wrote out to the parties noting this section of the applicant’s Form CNA1. The Tribunal also noted that there is an ‘operating defence’ under section 69(4)(b)(i) of the Companies Act 2006 (“the Act”). As the applicant appeared to be claiming that the respondent was ‘operating’, the Tribunal gave a preliminary view that the application should be struck out. The applicant requested to be heard on the matter. On 19 November 2020 a hearing was held by telephone conference.

At the hearing, the applicant’s representative explained that when the Form CNA1 had been completed his client had been unrepresented and the use of the word ‘operating’ had been an unfortunate choice of words, but that what the applicant was trying to convey was that they had identified the respondent (and its company name registration) through the existence of its website. The applicant’s representative explained that the applicant’s case was that the mere existence of a website is not enough to establish the operating defence under section 69(4)(b)(i) and that, if any such defence is claimed, it will be a matter for the respondent to prove in evidence.

On 24 November 2020 the outcome of the hearing was advised to the parties. The preliminary view that the application be struck out was overturned; and the applicant was given a period of 7 days in which to file an amended Form CNA1.

The applicant subsequently amended their Form CNA 1 and a copy of the amended application was sent to the primary respondent’s registered office on 8 December 2020, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail “Signed For” service and also by standard mail. On 9 February 2021, 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) FX PRO WORLD 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) FX PRO WORLD LIMITED shall:

(i) take such steps as are within their 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.

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.

FXPRO UK LIMITED, having been successful, is entitled to a contribution towards its costs. In making this award, I do not consider it appropriate to award any costs in respect of the strike out hearing. The issue arose as a result of the applicant’s drafting of its Form CNA1 and I do not consider it a matter that should give rise to an award of costs against the respondent. In the circumstances, I order FX PRO WORLD LIMITED, to pay FXPRO UK LIMITED costs on the following basis:

Fee for application: £400
Statement of case: £400

Total: £800

This sum is to be paid within seven days of the expiry of the appeal period or within seven days of the final determination of this case if any appeal against this decision is unsuccessful.

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 7th April 2021

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. ↩