Decision

Decision on Midsec Fire And Security Ltd

Updated 28 September 2023

Order under the Companies Act 2006

In the matter of application No. 4152

For a change of company name of registration No. 13156892

Decision

The company name MIDSEC FIRE AND SECURITY LTD has been registered since 25 January 2021 under number 13156892.

By an application filed on 12 January 2023, MIDSEC PROTECTION SYSTEMS LTD applied for a change of name of this registration (herein “the Name Change Application”) under the provisions of section 69(1) of the Companies Act 2006 (the Act).

On 25 January 2023, the tribunal wrote to the parties to advise that it was minded to suspend the Name Change Application pending a separate application that had been brought at Companies House to strike off company number 13156892. The parties were asked to state whether they agreed to the suspension of the Name Change Application. No response was received, so on 21 February 2023 the tribunal wrote to the parties to confirm that the Name Change Application was suspended for a period of two months.

On 22 February 2023, the Companies House register recorded the compulsory strike-off action as being discontinued. As such, the parties were notified that the Name Change proceedings were no longer suspended and a copy of the the Name Change Application was sent to the primary respondent’s registered office on 24 March 2023, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. (The copy of the Name Change Application was sent by Royal Mail “Signed For” service and also by standard mail.)

On 24 March 2023, the Tribunal wrote to Nicholas Coles to inform him that the applicant had requested that he be joined to the proceedings. The letter set out that if the respondent wished to file a defence, it would be necessary to complete form CNA 2 (notice of defence) and return it on or before 24 April 2023.

(It is also noted that on 18 April 2023, the Companies House register recorded a First Gazette notice for compulsory strike off action, but on 3 May 2023 that strike off action was suspended.)

Since no comments were received from Nicholas Coles, the tribunal wrote on 16 June 2023 confirming that he was joined as a co-respondent and the parties were advised that since no defence had been received to the Name Change Application, the adjudicator may treat the Name Change Application as not being opposed. The parties were granted a period of 14 days to request a hearing if they wished to object to that prospect.

On 19 June 2023, the co-respondent replied by email, with the following points:

(i) he contested that his business impacted on the business of the claimant;

(ii) he had had no previous dealings with the Applicant and had been unaware of the existence of its business prior to the tribunal’s correspondence;

(iii) that he would be paying no fees in these proceedings and acknowledging that the tribunal may find against the primary respondent.

On 21 June 2023, the tribunal wrote to acknowledge receipt of the co-respondent’s comments, and again offered a period of 14 days to request to be heard, if he so wished. On the same date, in view of the co-respondent’s statement that he had had no previous dealings with the Applicant, the tribunal wrote to the Applicant to request proof of delivery of their pre-action notice letter sent to the primary respondent prior to filing their form CNA1. In response, in an email dated 22 June 2023, the co-respondent confirmed that he had received a letter from the Applicant prior to the filing of the application to the tribunal. (He clarified that his comments in his letter 19 June 2023 had related to the claim that his business had impacted on the applicant’s business).

On 26 June 2023, the tribunal acknowledged the co-respondent’s comments and noted again the option for the co-respondent to request to heard, if he so wished (such request to be made on form CNA4 with a fee of £100). The co-respondent made no request to be heard.

Outcome

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 by filing the required defence form or requesting to be heard, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) MIDSEC FIRE AND SECURITY LTD shall change its name within one month of the date of this order to one that is not an offending name; ^{[footnote 1]}

(b) MIDSEC FIRE AND SECURITY LTD and Nicholas Coles 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.

MIDSEC PROTECTION SYSTEMS LTD did not request its costs in its statement of case. As such, and in line with paragraph 10.4 of the Tribunal’s Practice Direction, I make no award of costs in its favour.

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 19 July 2023

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. ↩