Decision

Decision on Hibernian F.C Limited

Updated 4 October 2021

Order under the Companies Act 2006

In the matter of application No. 3142

For a change of company name of registration No. SC644976

Decision

The company name HIBERNIAN F.C LIMITED has been registered since 21 October 2019 under number SC644976.

By an application filed on 6 February 2020, THE HIBERNIAN FOOTBALL CLUB LIMITED, represented by Vialex W.S., 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 application, the applicant requests its costs and confirms that it sent a pre-action notice letter to the respondent company on 20 November 2019. Although no copy of the letter was provided in the application, it appears that the letter was sent and responded to, due to the further comments made by the applicant at question 16 of the Form CNA1 (i.e. “Please provide any other relevant information you may have that you consider relevant to this application”), where the applicant states:

Mr John Long, director and sole member of Hibernian F.C. Limited contacted Sarah Dick, a solicitor of Vialex W.S. by telephone on 22nd November 2019 to advise that he had received a letter from Vialex W.S. dated 20th November 2019 on behalf of Hibernian Football Club Limited but that he would not be changing the company name, as requested in the said letter.

Mr John Long is the sole director and shareholder of the following companies, incoporated between 21 October and 7 November 2019, namely Virgin Airways Ltd (SC645157), Apple Music Ltd (SC645460), Emirates Airways Ltd (SC646560) all of which share the same registered office as Hiberniain F.C Limited and which names are similar to existing, well known companies.

A copy of the application was sent to the primary respondent’s registered office on 28 February 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 28 February 2020, the Tribunal wrote to John Patrick Long to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from John Patrick Long in relation to this request. On 9 November 2020, John Patrick Long was joined as a co-respondent. On 9 November 2020, 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 these matters, if they so wished.

In response, on 10 November 2020, John Patrick Long emailed the Tribunal. In that email he stated:

…….As explained I never received original letters. The letter today dated Nov 9th is the first from yourselves. Although I did get a phone call from solicitors either at the start of this year or end of this. And they were offered company then. They can have the company it was a gift to me from a family member. I want nothing for it. …. I will offer this to solicitors when I received your letter. The offer of the company to take.

The Tribunal acknowledged receipt of this email and advised Mr Long that his comments would be passed to an Adjudicator. As Mr Long had stated that he had not received the original letters, a review of the Royal’s Mail’s “track and trace” details was undertaken, but this did not reveal delivery confirmation. However, I note that the address for the primary and co-respondent were the same and both the “Signed For” and the standard mail version of the correspondence had been sent to the same address as the official letter dated 9 November 2020 (the latter of which was received). There had been no change of address details recorded on the Companies House register during this time and no correspondence returned as undelivered to the Tribunal.

On 22 November 2020, a further email was received from Mr Long and a reply to this email was issued on 23 January 2021 with apologies for the delay. The email from the Tribunal indicated that Mr Long had stated in his email of 22 November 2020 that he did not have contact details for the applicant. As such, Mr Long was provided with a further copy of the Form CNA1 and was advised that as neither party had requested to be heard, in line with the official letter dated 9 November 2020, the application would be passed to an Adjudicator to consider making an order.

In a subsequent email to the Tribunal dated 23 January 2021 in response to receiving the further copy of the Form CNA1 from the Tribunal, Mr Long stated:

…I never refused to give the name back or change it. My son John did. As explained he got me the name”. …I am not objecting to name change or sign it over……”I don’t want the name it has been nothing but hassle. I am not objecting to name change or sign it over…..

The Tribunal has received no further contact from Mr Long and the application has now been passed to me for decision.

Having reviewed events, it is clear that even if the initial letters from the Tribunal of 28 February 2020 were not received by the respondent, it appears the respondent was fully aware of the applicant’s complaint through a range of other communications from as early as 20 November 2019, but took no steps to change the company name. It is also clear that Mr Long did not intend to file a defence because he has stated on several occasions that he has no objections to a change of the respondent’s company name. It is also evident that the parties have been given the opportunity to request a hearing on this matter if they wished and have not done so.

As indicated above, the primary respondent never intended to 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).

Although under the provisions of this rule, the adjudicator may exercise discretion so as to treat the respondent as opposing the application, in the circumstances described above, there is no reason for me to exercise such discretion.

As it is clear the primary respondent is not opposing the application, in accordance with section 73(1) of the Act I make the following order:

(a) HIBERNIAN F.C 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) HIBERNIAN F.C LIMITED and John Patrick Long 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.

Costs

Insofar as the applicant’s request for costs is concerned the Tribunal accepts that the applicant provided pre-action notice to the respondent in its letter of 20 November 2019 and that it has also subsequently entered into further dialogue with Mr Long; this appears to be confirmed by Mr Long in his email to the Tribunal dated 10 November 2020.

The applicant has stated that it had been told by Mr Long on 22 November 2019, that the respondent company name would not be changed and this is also confirmed in Mr Long’s email to the Tribunal dated 23 January 2021. Whether the applicant had been told by Mr Long, or by Mr Long’s son that the company name would not be changed, the applicant was left with no option but to file an application with the Tribunal in order to have the respondent’s company name changed. I also note that the applicant did not file its application immediately upon being told that the company name would not be changed, but did so on 6 February 2020. This afforded the respondent a further opportunity to reconsider its position and change the company name, however the company name remains unchanged.

This application has not run a smooth path and there have been inconclusive delivery details relating to the initial “signed for” correspondence issued by the Tribunal and delays in the handling of the application. However, even if the respondent had received the official letters of 28 February 2020 and changed the company immediately, as the applicant complied with the requirements of paragraph 10.4.1 of the Company Names Tribunal: Practice Direction 2014, it would still be entitled to its costs.

I therefore order HIBERNIAN F.C LIMITED and John Patrick Long, being jointly and severally liable, to pay THE HIBERNIAN FOOTBALL CLUB 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 9 August 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. ↩