Decision

Decision on Island Delight Coventry

Published 6 March 2019

1. Order under the Companies Act 2006

In the matter of application No. 1810

For a change of company name of registration No. 10652405

2. Decision

The company name ISLAND DELIGHT COVENTRY LIMITED has been registered since 4 March 2017 under number 10652405.

By an application filed on 31 July 2018, Cleone Foods Limited 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 16 August 2018, 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. Also on 16 August 2018, the Tribunal wrote to Mrs Dawn Blount to inform her that the applicant had requested that she be joined to the proceedings. No comments were received from her in relation to this request and so she was joined as a co-respondent.

On 27 September 2018, 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. On 10 October 2018 Mrs Blount emailed the Tribunal requesting additional time since the parties were persuing an amicable settlement and they did not know whether a request for a hearing in relation to the defence not being filed would be necessary. The additional time was allowed.

On 20 November 2018 the applicant then filed Form CNA5 (“Request for an extension of time”) stating that they were “hopeful of reaching settlement without the input of the Company Names Tribunal”. The Tribunal agreed to the additional time (the letter of 3 December 2018 refers).

On 13 December 2018 the respondent filed Form CNA4 (“Request for a hearing to be appointed”). Whilst the applicant is not required to provide reasons for requesting a hearing, it is noted that the Form did not include any text so there were no details why it required a hearing or arguments that it may seek to rely upon.

A hearing subsequently took place on Tuesday 5 February 2019 with Mrs Blount appearing on behalf of the respondent and Mr John Ferdinand of Marks & Clerk LLP representing the applicant.

The hearing took place and on 13 February 2019 I issued the following letter to both parties:

The hearing was appointed to discuss the respondent’s failure to file its defence to the challenge lodged against the application to change the company name (no.10652405). Correspondence on file and Mrs Blount confirmed that the defence was not filed since there were ongoing negotiations to resolve this matter amicably. Mrs Blount said that she was still willing to settle but Mr Ferdinand said that negotiations had effectively come to a standstill.

During the CMC I asked Mrs Blount whether she intended to defend her application and she advised that she has no such intention. I advised Mrs Blount that if she does not want to defend her company name then the consequences would be that an order would be issued under Section 73(1) of the Companies Act 2006, i.e. an order giving the respondent one month to change of company name to a ‘non-offending’ name (failure to do so would mean that it would be changed on its behalf) and an award of costs made. Mrs Blount did not dispute this course of action. Therefore, an order to this effect shall shortly be issued.

In view of the above, and since 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) ISLAND DELIGHT 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) ISLAND DELIGHT COVENTRY LIMITED and DAWN BLUONT 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 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.

CLEONE FOODS LIMITED, having been successful, is entitled to a contribution towards its costs. During the hearing outlined above Mr Ferdinand requested a contribution towards its costs for attending the hearing. During the hearing I advised him that I deemed the following costs to be sufficient for the time spent given the outcome of these proceedings. Having considered the matter further, I still maintain this view. Any additional costs seem unjust given the circumstances.

I order ISLAND DELIGHT COVENTRY LIMITED and DAWN BLOUNT, being jointly and severally liable, to pay £800 costs on the following basis:

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

Total: £800

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 4 March 2019

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. ↩