Decision

Decision on Mansfield Garage Doors Limited

Updated 14 January 2020

Order under the Companies Act 2006

In the matter of application No. 1792 by Kirk Silo (Installations) Limited

For a change of company name of registration No. 10399291

Background, claims and defences

1. The company name Mansfield Garage Doors Limited (hereafter “the respondent company”) was originally registered under the name “Look Services Limited” on 28 September 2016 (under number 10399291). On 5 July 2017 (“the relevant date”), the respondent company changed its name to the allegedly offending name, the subject of these proceedings.

2. By application, filed on 11 July 2018, Kirk Silo (Installations) Limited (hereafter “the applicant”) applied for a change of name of this company registration under the provisions of section 69(1) of the Companies Act 2006 (“the Act”).

3. The applicant claims that it has traded for over 30 years as “Mansfield Garage Doors” and “building an enviable reputation within the local area and beyond”. The parties are both based in Mansfield in Nottinghamshire. The applicant’s goodwill and reputation are identified as being in respect of the supply, installation and maintenance of garage doors. The applicant objects to the respondent company’s name because it “wishes to change its name to Mansfield Garage Doors Limited to prevent any future use of the name by local competitors” and it is currently prevented from doing so. It asserts that it made several attempts to request that the respondent company change its name. In February 2018, it agreed, but required the sum of £1800 to do so.

4. The respondent company filed a notice of defence where it:

• admits that the applicant has been trading for many years;
• claims to have properly and legally registered its name;
• claims it operates under the trading name “Look Builders” carrying out general building and construction work but does not specialise in the fitting and supply of garage doors;
• stated that it rejected an offer, from the applicant, to buy the name because it did not cover expenses and start-up costs

5. The respondent company relies upon the following defences:

• that it is operating under the name or that it is proposing to and has incurred substantial start-up costs in preparation;
• that its name was adopted in good faith;
• that the interests of the applicant are not adversely affected to any significant extent

6. Mr Philip Leivers, director of the respondent company, was subsequently joined to the proceedings as co-respondent (we shall refer to Mr Leivers and the respondent company jointly as “the respondents”). Mr Leivers did not object to the request to join him to the proceedings.

7. Both sides filed evidence and we will summarise this to the extent that we believe is necessary. The applicant also filed written submissions. We keep these in mind. The respondents made a request to be heard. On the basis of the respondents’ request, a hearing took place on 7 October 2019 where the applicant was represented by Nicole Bollard of Counsel, instructed by Hopkins Solicitors LLP. Despite requesting to be heard, the respondents did not attend.

Evidence for the applicant

8. This takes the form of the witness statements of Susan Irene Kirk, Director of the applicant since 1991. In respect of the claimed goodwill and reputation of the applicant, Ms Kirk states that:

• the applicant has always operated from Mansfield and was incorporated in 1968 ^{[footnote 1]};
• originally, the applicant’s main business was the installation of grain storage silos, however, in the 1980s it started undertaking small building projects including installing garage doors ^{[footnote 2]};
• by the late 1980s the garage door installation business was growing “at a considerable rate” and from about 1989 the applicant traded as Kirk Silos (Installations) Limited t/a Mansfield Garage Doors ^{[footnote 3]};
• the growth in the applicant’s garage door installation business necessitated several moves to larger premises before it moved to its current premises in 2009 ^{[footnote 4]};
• the applicant holds records of over 14,000 customers with a further 2,000 held on its original database ^{[footnote 5]}. Ms Kirk’s conservative estimate is that the applicant has served at least 25,000 individual contracts for installation or servicing of garage doors and associated equipment ^{[footnote 6]};
• from 1989 or shortly after, the applicant changed its bank account name to “Kirk Silo (Installations) Limited t/a Mansfield Garage Doors” in order to be able to send invoices in the trading name and would expect customers to pay it in the name of “Mansfield Garage Doors” ^{[footnote 7]}. Five letters/emails from third parties and all addressed “To whom it may concern” have been elicited for the purposes of these proceedings and all attest to the applicant always using their trading name (in some cases, stating this goes back to 1991), and to being widely known in its local area ^{[footnote 8]};
• an advertisement feature that appeared (on an unknown date) in the Mansfield Chronical Advertiser promotes the fact that Mansfield Garage Doors has been in business for 40 years ^{[footnote 9]};
• the applicant has been a member of Mansfield and Ashfield 2020 Business Network since 2006 and, as a consequence, it is well known in the local business community ^{[footnote 10]};
• the applicant has a gross annual turnover in excess of £800,000 and this is solely in respect of installation of garage doors and associated equipment and servicing of the same ^{[footnote 11]};
• its installation and service vans together with its premises have, since 1989, always been presented in the livery of Mansfield Garage Doors ^{[footnote 12]};
• the applicant has used the website www.mansfieldgaragedoors.co.uk since October 2002 ^{[footnote 13]}. The trading name Mansfield Garage Doors appears prominently in various screen prints obtained on 5 December 2018 ^{[footnote 14]};
• examples of the applicant’s current letterheads and terms of business are provided showing the name Mansfield Garage Doors in use ^{[footnote 15]}. Ms Kirk states that these have been unaltered since 2009 ^{[footnote 16]};

9. Ms Kirk submits that this evidence establishes the applicant’s goodwill from at least 1989 and its goodwill and reputation trading as Mansfield Garage Doors ^{[footnote 17]}.

10. Ms Kirk asserts that the applicant believes the respondent company was deliberately registered and incorporated in the name Mansfield Garage Doors Limited to seek to pass itself off and to rely upon the historical goodwill and reputation developed by the applicant ^{[footnote 18]}. Alternatively, she claims that the respondent company’s registration was undertaken to gain other financial advantage ^{[footnote 19]}. Ms Kirk refers to a telephone call between the applicant’s accountant and the respondent company’s accountant when the latter noted that an offer could simply be made to purchase the registered name ^{[footnote 20]} . Ms Kirk believes that this telephone call occurred after the applicant had asked its solicitor to write to the respondent company and its sole director, shareholder and controlling mind, Mr Leivers, on or about 15 August 2017 ^{[footnote 21]}. Ms Kirk states that “[a]ny delay [in commencing proceedings before the Tribunal] was only occasioned by all attempts by the [applicant] to try to resolve the matter without going through any Court or Tribunal process” ^{[footnote 22]}. This resulted in the respondent requiring sums of money to transfer the name to the applicant ^{[footnote 23]}.

11. Ms Kirk states that the respondents appear to trade as a builder and do not appear to trade as suppliers of garage doors ^{[footnote 24]}.

12. Within the previous 7 days prior to Ms Kirk giving her statement, the applicant received at least two telephone calls requesting dealings with the respondent ^{[footnote 25]}. On average, the applicant received two similar telephone calls a week over a 15 month period ^{[footnote 26]}.

Evidence for the respondents

13. This takes the form of a witness statement by Mr Leivers. It consists of a single page and un-numbered paragraphs. Mr Leivers states that he carried out an Internet search for “Mansfield Garage Doors” and he states that this does not clearly indicate that the registered company behind the applicant’s website is Kirk Silo (Installations) Limited t/a Mansfield Garage Doors. He states that a search of all listed pages must be carried out before it is disclosed.

14. A further Internet search for “Mansfield Garage Doors Ltd” produces a business named “Garage Doors Mansfield”, a trading name of a company called JB Doors, which has no connection to the applicant.

15. Mr Leivers states that his business operates under the name Look Builders and the name Mansfield Garage Doors Ltd is not prominent “at all” in any of his advertised trading activity. To support this, he provides a letter relating to a planning application in the name of Look Services in relation to a “backlight sign” ^{[footnote 27]} and a computerised illustration of the planned sign on the respondent’s premises which does not advertise Mansfield Garage Doors but rather it consists of the words “LOOK DOMESTIC & COMMERCIAL GARAGE AND ENTRANCE DOORS” ^{[footnote 28]}.

16. Mr Leivers points out that the applicant has traded for over 30 years, but that never in that time has it taken the opportunity to change its name, until now. Its directors are seeking to claim compensation and redress for what Mr Leivers characterises as “their own inadequate actions over the past 30 years, when they should have incorporated the name of Mansfield Garage Doors Ltd”.

17. Mr Leivers states that, at no time, did he seek to make a profit from the company name itself and that it was the applicant who made the initial approach to him to acquire the name. He states that it was only when he refused to accept what he describes as “a derisory offer” that “would not have covered [his] administrative costs” that the matter came before the tribunal.

18. In response to the allegation that the registration of the respondent company was done to deliberately cause commercial difficulties, Mr Leivers states that the applicant’s trading results to 31 March 2018 show an after-tax profit of nearly £18,000 and an increase of 30% in net assets.

19. Mr Leivers concludes by stating that it does not appear that members of the public are being deceived because the respondent company’s trading style differs to its incorporated name and both parties have their own “trading as” names which differ to their incorporated name.

20. Mr Leivers does not accept that the registration of the respondent company’s name was in breach of section 69(1)(a) and (b) of the Companies Act, as alleged by the applicant.

Decision

21. Section 69 of the Act states:

“(1) A person (“the applicant”) may object to a company’s registered name on the ground-

(a) that it is the same as a name associated with the applicant in which he has goodwill, or

(b) that it is sufficiently similar to such a name that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70).

(3) The company concerned shall be the primary respondent to the application.

Any of its members or directors may be joined as respondents.

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for the respondents to show-

(a) that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

(b) that the company-

(i) is operating under the name, or

(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii) was formerly operating under the name and is now dormant; or

(c) that the name was registered in the ordinary course of a company formation business and the company is available for sale to the applicant on the standard terms of that business; or

(d) that the name was adopted in good faith; or

(e) that the interests of the applicant are not adversely affected to any significant extent.

If none of those is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection (4)(a), (b) or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.”

Does the applicant have the requisite goodwill?

22. Under section 69(1) the applicant must establish that it had a goodwill or reputation under the name upon which it relies. The relevant date for the purposes of demonstrating this goodwill is the date that the respondent changed its name to the name challenged by the applicant, namely, 5 July 2017.

23. Ms Bollard submitted that the applicant has provided strong evidence that it has the requisite goodwill. We agree. It has provided evidence that:

• it began trading as “Mansfield Garage Doors” in 1989;
• the growth of this business required several moves to larger premises, moving to its current address in 2009;
• it holds a database of over 14,000 customers;
• it has served at least 25,000 individual contracts for installation or repair of garage doors and associated equipment;
• it has a gross annual turnover in excess of £800,000;
• its premises and installation and service vans feature the name as part of their livery;
• its name appears prominently on its website that also includes its trading name and has been used since 2002

24. This all demonstrates a long and established use of the name. Ms Bollard also observed that the respondents have not challenged the evidence, despite having the opportunity to do so. Further, we observe that the respondent company, in its notice of defence, acknowledged that the applicant has been trading for many years.

25. In summary, we conclude that at the relevant date, namely 5 July 2017, the applicant had the requisite goodwill or reputation as required by section 69(1)(a) of the Act.

Are the names “sufficiently similar”?

26. In addition to demonstrating the requisite goodwill, for the applicant to succeed, the name relied upon by the applicant and the respondent company’s name must be “sufficiently similar” so that use of the respondent’s name would be likely to mislead by suggesting a connection between the parties.

27. The respondent company’s name is “Mansfield Garage Doors Limited”. The name relied upon by the applicant is “Mansfield Garage Doors”. A company name must be identified by a reference to the designation of the nature of the company (with certain exceptions), in this case, “limited”. An undertaking cannot trade by reference to a company name under which it is not incorporated and, under section 66 of the Act, identical company names cannot be registered. Taking this into account, Section 69(1)(a) of the Act would be virtually redundant if it requires the name upon which the applicant relies to include the designation of the nature of the company. For the purposes of Section 69(1)(a) a company name and the name associated with an applicant are the same if the only difference which arises is from the designation of the nature of the company. Consequently, the name upon which the applicant relies and the respondent company’s name are the same. If this is wrong, then the names are clearly similar enough to suggest a connection.

Defences

28. We have found that the applicant has the requisite goodwill in the UK and that the respective names are the same. Therefore, the applicant will succeed unless the respondents have a defence under one of the sub-sections of section 69(4) of the Act and section 69(5) does not apply. The respondents rely upon three defences, each of which are considered below.

Section 69(4)(b)(i): That the company is operating under the name

29. Under section 69(4)(b)(i), the respondent may rely upon the defence that it is operating under the name. Despite relying upon this defence, the respondents’ evidence fails to illustrate any specific instances that it is operating under the contested name. The relevant evidence from Mr Leivers is, as follows:

• a statement that his business operates under the name Look Builders
• an un-corroborated statement that (at an unspecified time) an Internet search for Look Builders brings up the respondent company’s web page that does not refer to the contested company name;
• he provides a contemporaneous letter from Mansfield District Council to Mr Leivers regarding a planning application for a “back light sign” together with a computerised illustration of the sign which includes the text “LOOK DOMESTIC & COMMERCIAL GARAGE AND ENTRANCE DOORS”;
• his “new signage” makes no reference to “Mansfield Garage Doors” on any part of the building;
• the name “Mansfield Doors Ltd” is not prominent “at all” in any of his advertised trading activity.

30. We note that the respondent company was incorporated as Look Services Limited on 28 September 2016 and changed its name to the disputed name on 5 July 2017. However, there is no corroborative evidence to support the assertion that the respondent company was operating under the new name between the date it changed its name and the date these proceedings were commenced i.e. 11 July 2018. The evidence fails to illustrate that the respondent company had a website at this date, let alone whether, as Mr Leivers states, it refers to “Mansfield Garage Doors”. The evidence related to the planning application is dated in April 2019, nine months after this date and, therefore, does not assist.

31. The high point of Mr Leivers’ evidence is his statements to Look Builders being “his business” and that “all trading logo’s [sic] refer to ‘Look’, including company vehicles, clothing and other advertising material”. Such comments illustrate that Mr Leivers is making his comments in the knowledge of the existence of his business activities. Such evidence is not strong, however, even if Mr Leivers’ comments are taken as demonstrating that the respondent company is operating, it is not possible to ascertain the time frame for such operations and whether they were ongoing on or before the 11 July 2018. When making such comments, Mr Leivers may have had in mind business activities that only commenced after this date. Consequently, based on the evidence before us, we are unable to conclude that the respondent company was operating at, or before, this date.

32. Ms Bollard submitted that the onus is on the respondents to demonstrate that the respondent company is operating under the name and they have failed to demonstrate that it was trading at, or before, the date these proceedings were commenced.

33. Ms Bollard went on to submit that, at best, the evidence, may indicate that it trades as LOOK BUILDERS or LOOK SERVICES, but that it was the primary position of the applicant that the respondent company has failed to demonstrate that it is trading under the contested name. We pointed out that the applicant’s own evidence may be perceived as supporting a claim that the respondent company is trading as “Mansfield Garage Doors”. In particular, Ms Kirk refers to the applicant receiving, on average, two telephone calls a month over the previous 15 months requesting dealings with the respondent. The possible message from such evidence is that the respondent company is operating and in such a way that third parties are contacting the applicant in the mistaken belief that they are contacting the respondent company. Ms Bollard submitted that such telephone calls:

• do no more than illustrate that the respondent company exists, but not necessarily operating. She contended that this would be the case where cold callers obtain their targets from the Companies House register;
• from customers asking for the respondent company occur only because of the existence of the respondent company.

34. We accept the first of these submissions, but we are not convinced by the second. However, it is not possible to ascertain from the evidence, how many, if any of the telephone calls were from customers/potential customers of the respondent company as opposed to cold callers. On this basis we conclude that Ms Kirk’s evidence does not support the respondents’ claim that it is operating under the name.

35. We comment briefly on one final issue. Ms Bollard submitted that, if the respondent company is trading, it is under the name “Look Builders” or “Look Services” and not “Mansfield Garage Doors”. Mindful that section 69(4)(b) refers to a defence of “operating under the name”, Ms Bollard was asked to clarify this submission and whether it is consistent with the claim that the respondent company is not “operating under the name”. She is not aware of any authority on this point, but submitted that there must be some significance to the words “… under the name” used in the Act and she contended that a finding of “operating under the name” cannot be made just because the company name is registered or because it is registered but the company’s trading style involves a different trade name. We believe that this is a moot point because, in light of our finding that the respondents have failed to support the claim that the respondent company is operating, the question whether the use of a trading name differing from the company name is significant does not need to be answered. However, we reiterate our earlier finding that there is an absence of evidence to illustrate that the respondent company is operating at all, let alone under the name “Mansfield Garage Doors Limited”.

Section 69(4)(d): Was the respondent’s name adopted in good faith?

36. Section 69(4)(d) provides a defence where the names were adopted in good faith.

37. In (1) Adnan Shaaban Abou-Rahmah (2) Khalid Al-Fulaij & Sons General Trading & Contracting Co v (1) Al-Haji Abdul Kadir Abacha (2) Qumar Bello (3) Aboubakar Mohammed Maiga (4) City Express Bank of Lagos (5) Profile Chemical Limited [2006] EWCA Civ 1492, Rix LJ commented upon the concept of good faith:

‘48 The content of this requirement of good faith, or what Lord Goff in Lipkin Gorman had expressed by reference to it being “inequitable” for the defendant to be made to repay, was considered further in Niru Battery. There the defendant bank relied on change of position where its manager had authorised payment out in questionable circumstances, where he had good reason to believe that the inwards payment had been made under a mistake. The trial judge had (a) acquitted the manager of dishonesty in the Twinsectra or Barlow Clowes sense on a claim of knowing assistance in breach of trust, but (b) concluded that the defence of change of position had failed. On appeal the defendant bank said that, in the absence of dishonesty, its change of position defence should have succeeded. After a consideration of numerous authorities, this court disagreed and adopted the trial judge’s broader test, cited above. Clarke LJ quoted with approval (at paras 164/5) the following passages in Moore-Bick J’s judgment:

“I do not think that it is desirable to attempt to define the limits of good faith; it is a broad concept, the definition of which, in so far as it is capable of definition at all, will have to be worked out through the cases. In my view it is capable of embracing a failure to act in a commercially acceptable way and sharp practice of a kind that falls short of outright dishonesty as well as dishonesty itself.”’

38. In (1) Barlow Clowes International Ltd. (in liquidation) (2) Nigel James Hamilton and (3) Michael Anthony Jordon v (1) Eurotrust International Limited (2) Peter Stephen William Henwood and (3) Andrew George Sebastian the Privy Council considered the ambiguity in the Twinsectra Ltd v Yardley [2002] 2 AC 164 judgment. The former case clarified that there was a combined test for considering the behaviour of a party: what the party knew at the time of a transaction and how that party’s action would be viewed by applying normally acceptable standards of honest conduct.

39. In Harrisons Trade Mark Application (“Chinawhite”) [2004] FSR 13 Pumfrey J commented:

‘14 Mr Engelman’s argument was a direct challenge to the hearing officer’s approach to the question of good faith, but he also objected that it was not open to the hearing officer to infer bad faith from the facts, which he maintained was contrary to the decision of the Court of Appeal in Davy v Garrett (1878) 7 Ch D 473 at 489. This I think is a misapprehension as to the scope of the decision in Davy v Garrett. That case was dealing with fraud in a different context. In this field context is everything. The words “bona fide” or “good faith” are what are sometimes called chameleon words and take their content and their colour from their surroundings. Once the hearing officer had decided that the correct approach was that which I think he may well have been bound to accept, it was open to him to find that objectively the behaviour of the application did not satisfy the second half of the formulation. The word “inference” itself has a wide meaning, as Robert Walker L.J. demonstrates in REEF Trade Mark [2003] R.P.C. 5. This was not a question of drawing an inference at all. It was a question of coming to a secondary finding of fact on all the material. I do not consider that the hearing officer’s decision is open to challenge on this ground and the appeal must accordingly be dismissed.’

40. At Section 3 of the Form CNA2, the respondent company indicated that it relies upon this defence, but it provided no reasons in support this statement. In his evidence, Mr Leivers’ comments on this point are limited to the following two statements:

• “[he] registered Mansfield Garage Doors Ltd because Companies House informed [him] that the name was available for registration”
• “[the applicant’s] claim that it has traded for over 30 years, but never in all that time, has it taken the opportunity to change its name, until now … The Directors appear to be seeking compensation and redress for their own inadequate actions over the past 30 years, when they should have incorporated the name of Mansfield Garage Doors Ltd”

41. These statements fail to provide any indication as to why the current name of the respondent company was adopted in good faith.

42. Ms Bollard made the following submissions and drew our attention to the following factual matrix:

• despite changing its name to Mansfield Garage Doors Limited, the respondent company continued to trade under the name Look Services/Look Builders;
• the new name had no connection with its trading name or branding;
• Mr Leivers has admitted that the respondent company does not specialise in garage doors;
• such an unusual decision to change its name requires an explanation, but none has been provided;
• the only inference which can be drawn is that the name change was made with a view to a financial gain or to prevent the applicant registering the name;
• the respondents have failed to discharge the burden on them that they acted in good faith

43. We agree with Ms Bollard. Mr Leivers has provided no information regarding the reasons for the choice of name and has merely relied upon the fact that the name was available and that the applicant was to blame for not registering the name itself. Ms Bollard also submitted that the gaps in Mr Leivers’ evidence are revealing. Again, we agree. The onus was very much upon the respondents to provide reasons why the name was chosen. This is something that it should have been very easy for them to do, but they have not done so. Therefore, they have provided no reason or evidence to contradict the picture painted by the facts referred to by Ms Bollard.

44. In summary, our finding is that the respondents’ name was not adopted in good faith.

Section 69(4)(e): Are the interests of the applicant adversely affected to any significant extent?

45. Mr Leivers, in his evidence, pointed to the profits of the applicant and a marked increase in its net assets to illustrate that its interests were not being adversely affected. Ms Bollard asserted that this is not indicative of the harm caused, or the potential harm, to the applicant. Again, we agree. Such an increase in net assets may be ascribed to factors that more than compensated for the impact of the respondent company. The bald figures cannot be taken as supporting the respondents’ case. Further, in light of our findings that there is no evidence to support the claim that the respondent company is operating, there is not likely to be evidence that the applicant has actually been adversely affected yet. Rather, we must undertake an assessment of whether it is likely to do so, in circumstances where the respondent company is operating.

46. Mr Bollard submitted that the telephone calls received by the applicant are evidence of the potential for confusion. Even though we have found earlier that such telephone calls are not evidence that the respondent company is operating, they are, nonetheless, illustrative of the potential for confusion. When this is considered together with the identicality between the respondent company’s name and the name relied upon by the applicant, we find that it is highly likely that the applicant’s interests will be adversely affected by way of, for example, diverted sales.

47. We conclude that the interests of the applicant are likely to be affected to a significant extent.

Section 69(5): Purpose to obtain money or other consideration from the applicant

48. In light of our findings that all the respondents’ defences have been rejected, it is not necessary to consider the applicant’s fall-back position that the respondents’ intention in changing the respondent company’s name was to obtain money from the applicant. However, for completeness, we comment briefly.

49. In the application form, the applicant stated that the respondents requested that the applicant pay £1800 for it to change its name. Ms Kirk has explained in her statement that this offer came about after the applicant had asked its solicitor to write to the respondents. The respondent company, in its notice of defence, states that it rejected an offer from the applicant to buy the name. However, there is no more evidence regarding these communications and the fact that they took place is not, alone, sufficient to demonstrate that the purpose of changing the respondent company’s name was to obtain money or other consideration.

50. We should point out at this stage that a letter received from Mr Leivers on the 3 October 2019 made a reference to the applicant offering £400 for the respondent company’s name and that he rejected this because it did not cover the costs of doing so. This information was received very late and was not presented in evidential format and we decline to take it into account. However, we note that even if we did take it into account, it would create no tension with our finding.

Summary

51. The primary respondent cannot rely upon any of its defences. Therefore, the application is successful. In accordance with section 73(1) of the Act, the following order is made:

(a) Mansfield Garage Doors Limited shall change its name within one month of the date of this order to one that is not an offending name ^{[footnote 29]} ;

(b) Mansfield Garage Doors Limited and Philip Leivers 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.

52. 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.

53. In any event, if no such change is made within one month of the date of this order, we 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.

54. 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

55. The applicant, having been successful, is entitled to a contribution towards its costs. Section 10 of the Tribunal’s Practice Direction sets out a scale of costs. The respondents requested a hearing by submitting a Form CNA4, together with the official fee of £100, but chose not to appear. The Tribunal was informed by the letter of 3 October 2019 (2 working days before the hearing), but the respondents failed to copy the letter to the other side. As a result, the applicant only became aware that the respondents would not be appearing on the morning of the hearing. Ms Bollard pointed out that it was the respondents who had requested to be heard and that if the applicant had known of their respondents’ non-attendance, it would not have been necessary to attend the hearing. Consequently, Ms Bollard requested that costs off the published scale be awarded in respect of preparation for, and attendance at, the hearing.

56. We accept this and agree with Ms Bollard when she requested costs based on the published scale except in respect of the costs associated with the hearing itself. Consequently, before we finalise the award of costs:

the applicant is invited to provide a schedule of costs incurred in preparing for, and attending the hearing within 21 days of this decision;

if the respondents wish to make any submissions on this schedule, they must do so within a further 21 days.

57. We will then issue a supplementary decision on costs.

58. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to uphold the application; there is no right of appeal in relation to costs. Therefore, it is appropriate to begin the appeal period from the date of this decision rather than the supplementary decision on costs.

59. Any notice of appeal must be given within one month of the date of this decision. Appeal is to the High Court in England Wales and Northern Ireland and to the Court of Session in Scotland. The Tribunal must be advised if an appeal is lodged.

Dated 6th November 2019

Mark Bryant
Company Names Adjudicator

Judi Pike
Company Names Adjudicator

Oliver Morris
Company Names Adjudicator

1. Ms Kirk’s witness statement, paras 3 and 8 ↩

2. Ditto, paras 9 and 10 ↩

3. Ditto, paras 13 and 14 ↩

4. 4 Ditto, paras 11 and 18 ↩

5. Ditto, para 21 ↩

6. Ditto, para 22 ↩

7. Ditto, paras 32 and 33 ↩

8. Ditto, para 36 and Exhibit SIK1 ↩

9. Ditto, para 39 and Exhibit SIK2 ↩

10. Ditto, para 40 ↩

11. Ditto, paras 42 and 43 ↩

12. Ditto, para 46 ↩

13. Ditto, paras 47 to 49 ↩

14. Exhibit SIK3 ↩

15. Exhibit SIK4 ↩

16. Ms Kirk’s witness statement, para 50 ↩

17. Ditto, para 54 ↩

18. Ditto, para 55 ↩

19. Ditto, para 56 ↩

20. Ditto, para 57 ↩

21. Ditto, para 59 ↩

22. Ditto, para 64 ↩

23. Ditto, para 65 ↩

24. Ditto, para 68 ↩

25. Ditto, para 86 ↩

26. Ditto, para 88 ↩

27. Exhibit A ↩

28. Exhibit B ↩

29. 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. ↩