Decision

Decision on Prosegur Limited

Updated 28 July 2022

Companies Act 2006

In the matter of application No. 3371 by Prosegur Compañía De Seguridad, S.A. and Prosegur Soluciones Integrales de Seguridad España, S.L. for a change to the company name of PROSEGUR LIMITED, a company incorporated under number 12850930

Decision on costs

1. On 17 May 2022, I issued a decision in these proceedings, ordering PROSEGUR LIMITED (“the primary respondent”) and Mr Perseo Sanz Gonzalez, the co-respondent, under section 73(1) of the Companies Act 2006 (“the Act”) to change the name of PROSEGUR LIMITED to a name that is not an offending name^{[footnote 1]}.This followed a successful application under section 69 of the Act by Prosegur Compañía De Seguridad, S.A. and Prosegur Soluciones Integrales de Seguridad España, S.L. (“the applicants”). The Company Names Tribunal has not been notified that the decision was appealed and the company name was changed on 27 May 2022 to PERSEO SANZ LTD, without the need for the adjudicator to determine a new name.

2. This is a decision about costs against which there is, under section 74 of the Act, no right of appeal. In their written submissions in lieu of a hearing, the applicants said:

To the extent that the Application is upheld, the Applicant reserves the right to seek costs off the scale and on an indemnity basis at a later date.

3. The applicants were referred to in the singular in these submissions, something I commented upon in my decision of 17 May 2022:

3. Prosegur Compañía De Seguridad, S.A. and Prosegur Soluciones Integrales de Seguridad España (“the applicants”), S.L. refer to themselves in the application as a single company….

14. Diolimar Garcia González has been the Corporate Legal Director of Prosegur Compañía De Seguridad, S.A. and its subsidiaries since February 2017. He refers to the two applicants and states that Prosegur Compañía De Seguridad, S.A. (“PCS”) is really the sole complainant because Prosegur Soluciones Integrales de Seguridad España, S.L. (“PSS”) is a wholly owned subsidiary of PCS. PCS holds the intellectual property rights, including goodwill, for and on behalf of PSS, as well as those of another member of the PCS company group, called Prosegur España, S.L.U. (“PE”). Both PSS and PE are entities through which PCS operates in the UK. For simplicity, for the remainder of this decision I will refer to the group of PCS companies as “the applicant.

4. The applicants’ written submissions about costs refer only to the applicant as being the first entity, Prosegur Compañía De Seguridad, S.A.. I will do likewise.

5. Given that the application for a request to change the company name was upheld, the Company Names Tribunal gave the parties the opportunity to make written submissions about costs, as set out in my decision of 17 May 2022. The applicant filed written submissions on 24 May 2022. The respondents were allowed until 13 June 2022 to respond to those submissions. No response was received by the Company Names Tribunal from the respondents.

6. The applicant submits the following:

• on 14 December 2020, the applicant contacted the primary respondent by email requesting it to change its name in the light of the applicant’s rights in the name PROSEGUR;
  
• following no response, the applicant’s professional representatives in these proceedings, J A Kemp LLP, wrote to the primary respondent on behalf of the applicant on 27 July 2021. The letter notified the primary respondent of the applicant’s intention to file evidence in relation to the contested company name;
  
• the letter was sent without prejudice save as to costs. In the letter, the applicant offered to waive its entitlement to a costs award if the primary respondent complied with the applicant’s request for a letter of undertaking regarding future use of the name PROSEGUR and change of the company name;
  
• on 13 August 2021, an email was sent to J A Kemp LLP, signed by “Perseo Sanz, CEO Prosegur Limited”, for the primary respondent, in which it was denied that the applicant had any legal justification for making an application to the Company Names Tribunal;
  
• on 17 August 2021, J A Kemp LLP sent a further email without prejudice save as to costs and subject to contract, reiterating its offer to take no further action if the primary respondent was prepared to sign the letter of undertakings enclosed in their letter of 27 July 2021. No response was received

7. Copies of the correspondence referred to by the applicant are attached to its written submissions of 24 May 2022. The applicant concludes its submissions:

The Respondent has, therefore, declined the opportunity to engage with the Applicant’s proactive attempts to settle this matter without the need for the Applicant to incur the significant costs of bringing the subject Application and substantiating it with evidence and arguments. At Annex 2 to this letter, we enclose a schedule of the costs incurred by the Applicant in the subject application.

8. Sections 71(1) and (2)(k) of the Companies Act 2006 (“the Act”) provide that rules about proceedings before a company names adjudicator may make provision:

requiring one party to bear the costs (in Scotland, expenses) of another and as to the taxing (or settling) the amount of such costs (or expenses).

9. Rule 11 of the Company Names Adjudicator Rules 2008 states:

11. The adjudicator may, at any stage in any proceedings before him under the Act, award to any party by order such costs (in Scotland, expenses) as he considers reasonable, and direct how and by what parties they are to be paid.

10. The Practice Direction of the Company Names Tribunal, in referring to the scale of costs at paragraph 10.1.1, states that the “adjudicator will not normally award the actual costs incurred but will follow a scale of costs. The scale of costs will give an indication to the parties at the outset as to what they are likely to have to pay if they lose.” Paragraph 10.5 of the Practice Direction concerns off-scale costs, when exceptions to the scale of costs may be made, for example in the case of unreasonable behaviour, wide breaches of the rule and delaying tactics.

11. The scale of costs is there to take account of the varying nature and circumstances of cases. It takes account of levels of costs in proceedings of the same or a similar nature. These proceedings are not unusual. The correspondence from the applicant to the primary respondent comprises cease and desist letters, which are commonplace between parties to this Tribunal. The scale of costs would be largely redundant if parties were able to obtain off-scale costs simply as a result of sending cease and desist letters to a party which then defended its name unsuccessfully.

12. I do not see the respondents’ conduct as amounting to unreasonable behaviour in these proceedings. Using the scale in the way envisaged in the Practice Direction, i.e. ensuring that the award reflects the effort and expenditure to which it relates and does not impose a financial punishment, I will make an award in favour of the applicant as follows:

Preparing a statement and considering the counterstatement: £500
Preparing evidence and considering and commenting on the other side’s evidence, which was attached to the counterstatement: £1500
Written submissions in lieu of a hearing: £400

Official fees:

(i) CNA1: £400
(ii) CNA3: £150

Total: £2,950

13. At the end of my decision of 17 May 2022, I asked the applicants to indicate whether the cost award should be paid solely to Prosegur Compañía De Seguridad, S.A. or jointly to Prosegur Compañía De Seguridad, S.A. and Prosegur Soluciones Integrales de Seguridad España, S.L.. This has not been addressed, but I note that the submissions about costs refer only to Prosegur Compañía De Seguridad, S.A. as the applicant. Accordingly, since only this entity is referred to and bearing in mind the statement made about the applicants in the applicants’ evidence, referred to above and in my decision of 17 May 2022, the cost award will be made to Prosegur Compañía De Seguridad, S.A..

14. I order PERSEO SANZ LTD, formerly PROSEGUR LIMITED (“the primary respondent”), and Mr Perseo Sanz Gonzalez (the co-respondent), jointly and severally, to pay Prosegur Compañía De Seguridad, S.A. the sum of £2,950. As the Tribunal has not been advised that any appeal has been lodged against my decision of 17 May 2022, this sum should be paid within 21 days of the date of this costs decision. Under section 74(1) of the Act, there is no right of appeal in relation to this costs decision.

Dated 27 July 2022

Judi Pike
Company Names Adjudicator

1. BL O/402/22 ↩