Decision

Decision on Goldtrowel UK Limited

Published 21 July 2020

Order under the Companies Act 2006

In the matter of application No. 3077

For a change of company name of registration No. 12260496

Background

The company name GOLDTROWEL UK LIMITED (“the respondent”) has been registered since 14 October 2018 under number 12260496.

By an application filed on 7 November 2019, Andrew Marshall (“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”).

A copy of this application was sent to the respondent’s registered address on 13 December 2019, 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 18 December 2019 the respondent filed Form CNA5 (Request for an extension of time) requesting an additional 2 months to file its Form CNA2 (Notice of Defence). The reasons provided are as follows:

I am leaving the UK today (17.12.19) for the Christmas break in France. And not returning to the UK until 11 January 2020. So I am not able to source and appoint legal representation in this case should I choose to do so.

On 10 January 2020 the Tribunal wrote to the primary respondent refusing the extension of time request on the basis that the “reasons provided are not sufficient.

On 23 January 2020 the respondent filed Form CNA4 (Request for a hearing to be appointed). As requested, a hearing was duly appointed and took place on 11 March 2020. Mr Teagle attended the hearing on behalf of the respondent and Mr Walawage of Virtuoso Legal represented the applicant.

Decision

During the hearing Mr Teagle reiterated the reasons for the additional time as set out on the Form CNA5. He was on holiday and did not have an opportunity to appoint legal representation by the 13 January 2020 deadline. Further, no subsequent action appeared to have taken place during the intervening period of the aforementioned deadline and the hearing date. During the hearing Mr Teagle stated that whilst away he didn’t have access to the internet.

Under rule 7(1), I have as an adjudicator the discretion to extend (or further extend) any time period, including one which has expired, whether or not a request has been made to extend a time period. However, I refer to the Company Names Tribunal practice notice which states:

“5. Extensions of time

5.1.1…

5.1.2…

5.1.3 It is important to note that the adjudicator will already have decided the length of time deemed appropriate for the particular action (e.g. filing evidence). Therefore, the Tribunal expects that requests for extensions to periods of time will be the exception, rather than the norm. A request for an extension of time will not be granted automatically but will be subject to the adjudicator’s discretion. The adjudicator will have regard to the reasons supplied, the length of time requested, the fairness and proportionality of the request, including the complexity of the case, and any prejudice likely to be suffered by either party in allowing or refusing the request.

5.1.4 In requesting any extension, parties should show that the facts merit the request (rule 7(4)). In particular, the request should show clearly what progress has been made thus far, what still needs to be done and the reasons why the party making the request has been unable to complete the particular action required (e.g. gathering of evidence). If the request is made after the time period has expired (a retrospective extension request), it should also state why the request is being made out of time (rule 7(4)). 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 (under rule 7(3)).”

During the hearing I referred Mr Teagle to the guidance set out on our website and that extensions of time were only granted in exceptional circumstances. Prior to the hearing the applicant filed a detailed skeleton argument detailing why they believe the extension of time should not be granted. This was outlined by Mr Walawage at the hearing and I confirm that I have read and considered the arguments made, though I do not consider it necessary to summarise the arguments here.

As I explained at the hearing, I do not accept that going on holiday to be sufficient justification to warrant additional time. Moreover, whilst the request did indicate that the respondent needed to seek legal advice, it did not include details of what progress had been made and delays due a holiday is not considered justifiable. This is particularly the case when the respondent was warned about forthcoming action on 31 October 2019 (as indicated on the Application Form CNA1). Further, as I stated during the hearing the prejudice towards the applicant for not being able to proceed with its application outweighs the justification provided to support the extension of time.

In view of the above, as advised during the hearing, the request for additional time is refused. The net effect of this is that the respondent is deemed not to have filed 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, for the reasons set out above, 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) GOLDTROWEL UK LTD shall change its name within two months of the date of this order to one that is not an offending name ^{[footnote 1]} ;

(b) GOLDTROWEL UK LTD and COLIN ROBERT TEAGLE each 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 three months 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.

The applicant indicated in its application that it was seeking costs in relation to these proceedings. In its skeleton argument the applicant requested actual costs to the sum of £3,000 plus VAT. During the hearing Mr Walawage sensibly agreed that they are not entitled to its full costs but wanted to demonstrate the costs incurred to date. Therefore, my costs award are in line with the standard published scale of costs as follows:

Fee for application: £400
Statement of case: £400
Preparing for an attending the CMC: £100

Total: £900

In view of the above, Andrew Marshall, having been successful, is entitled to a contribution towards his costs. I order GOLDTROWEL UK LTD and COLIN ROBERT TEAGLE, being jointly and severally liable, to pay Andrew Marshall £900 costs as set out above.

This sum is to be paid within fourteen days of the expiry of the appeal period or within fourteen 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 8th July 2020

Mark King
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. ↩