Decision

Decision on Vale CrossFit Limited

Updated 4 January 2023

Companies Act 2006

In the matter of application No. 3784 by CrossFit, LLC for a change to the company name of VALE CROSSFIT LIMITED, a company incorporated under number 13833362

Background

1. The company name VALE CROSSFIT LIMITED (“the primary respondent”) has been registered since incorporation on 6 January 2022 under number 13833362. The Companies House website categorises the primary respondent’s “Nature of business (SIC)” as “93110 – Operation of sports facilities.” The website records that, at all times since it was registered, the company has had a single director recorded on the Register of Companies: Mark John Robert Brown. The company has also had the same registered company address since registration, 265 Holton Road, Barry, Wales, CF63 4HT.

2. By an application filed on 24 February 2022, CrossFit, LLC (“the applicant”) applied under section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondent’s name to be changed. The applicant relies upon the name CrossFit for sporting activities, having over 612 licensed training facilities in the UK. It claims costs. The application form records that the applicant gave the primary respondent notice on 13 January 2022 and 4 February 2022 that it would commence legal proceedings against it if it did not change its name and that both the letters were ignored.^{[footnote 1]}

3. The application was served upon the primary respondent at its registered address (265 Holton Road, Barry, Wales, CF63 4HT) on 31 March 2022 by both Royal Mail ‘signed for’ delivery and standard mail. The letter from the Company Names Tribunal (“the Tribunal”) which served the application gave a deadline of 1 May 2022 for the filing of a defence, under Rules 3(3) and 3(4) of the Company Names Adjudicator Rules 2008 (“the Rules”), which state:

3(3) The adjudicator shall specify a period within which the primary respondent must file its defence.

3(4) 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).

4. Section 73(1) of the Act states:

Order requiring name to be changed

(1) If an application under section 69 is upheld, the adjudicator shall make an order—

(a) requiring the respondent company to change its name to one that is not an offending name, and

(b) requiring all the respondents—

(i) to take all such steps as are within their power to make, or facilitate the making, of that change, and

(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.

5. The letter stated that the fee of £150 must accompany the defence form, the CNA2, or that the fee must be paid before the expiry of the deadline for filing the CNA2. The letter warned:

If you choose not to file a form CNA 2 and the £150 fee the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006.

6. On the same date, 31 March 2022, the Tribunal wrote to Mark John Robert Brown to inform him that the applicant had requested that he be joined to the proceedings as a co-respondent, under section 69(3) of the Act. The deadline for commenting upon the request was set at 1 May 2022.

7. No defence form CNA2 (and no response) was received by the deadline of 1 May 2022, nor any response to the request to join Mr Brown to the proceedings.

8. On 13 May 2022, the Tribunal wrote to the primary respondent to inform it that as no defence form CNA2 had been filed by the deadline of 1 May 2022, the adjudicator may treat the application as unopposed and may make an order under section 73(1) of the Act. The letter permitted the primary respondent to request a hearing by 27 May 2022 and that if no hearing was requested, the adjudicator may consider making an order. The letter also informed Mr Brown that he was joined to the proceedings and allowed until 27 May 2022 for him to request a hearing to object. No response was received.

9. On 8 June 2022, the primary respondent filed a defence form CNA2, which it had dated as 28 April 2022. The statutory fee for the form CNA2 was paid on 8 June 2022. No fee was received by the Tribunal prior to this date. There was no explanation as to why the form and fee had been received out of time; i.e. after the deadline of 1 May 2022. There was no signature on the form. Hilary Brown was given as a contact, with a telephone number, but no representative’s details were entered onto the form.

10. The Tribunal wrote to the primary respondent on 22 June 2022 stating that a retrospective extension of time request would need to be filed on form CNA5, with the required statutory fee, and with an amended form CNA2 addressing the signature and representative’s details, before the Tribunal could consider whether to admit the late-filed defence. The deadline given for filing these documents was 6 July 2022. No response was received.

11. The Tribunal wrote to the primary respondent on 13 July 2022 to state that as no form CNA5 requesting a retrospective extension of time and no amended defence form CNA2 had been filed by the 6 July 2022 deadline, the form CNA2 filed on 8 June 2022 was not admitted to the proceedings, meaning there was no defence to the application. A deadline of 27 July 2022 was given for any hearing request to object to the non-admittance of the form CNA2. No hearing was requested.

12. Hilary Brown telephoned the Tribunal on 9 August 2022 to explain that the primary respondent had not filed the required documentation because she was under the impression that the applicant was going to withdraw the application. Ms Brown said that if she hadn’t been under that impression, the documents would have been filed. On 12 August 2022, Ms Brown wrote to the Tribunal and sent a copy of a letter sent the same day to the applicant’s professional representatives, Bird & Bird LLP. In that letter, Ms Brown referred to a telephone conversation with Thomas Hooper of Bird & Bird LLP on 3 May 2022 during which Mr Hooper said he would seek the applicant’s instructions regarding continuing the application. This conversation took place two days after the deadline for filing the defence on form CNA2. The letter also said that Ms Brown made further enquiries of Mr Hooper on 23 June 2022.

13. On 15 August 2022, a form CNA2 was received under cover of an email from Hilary Brown of ‘Virgo Consultancy Services Limited’. The form was unamended and was accompanied by a further copy of Ms Brown’s letter of 12 August 2022 to the Tribunal, another copy of the 12 August 2022 letter to Bird & Bird LLP and a copy of an email from Thomas Hooper, also of 12 August 2022, which stated that Bird & Bird LLP’s instructions remained unchanged from its initial notice before action of 13 January 2022.

14. The Tribunal wrote to the primary respondent on 19 August 2022, directing that it file a witness statement explaining the delay in filing the defence, any attachments to which must be filed as exhibits. The letter also directed the primary respondent to file form CNA5 and the statutory fee to request a retrospective extension of time, and an amended form CNA2, both of which were required by way of the Tribunal’s letter of 22 June 2022. The deadline given by the Tribunal for receipt of the documents was 2 September 2022.

15. On 31 August 2022, the Tribunal received a copy of form CNA2 which was unamended. There was no witness statement and no form CNA5 and statutory fee to request a retrospective extension of time. The Tribunal wrote to that effect on 14 September 2022, taking the view that the consequences of the primary respondent’s failure to comply with the directions given in the Tribunal’s letter of 19 August 2022 meant that no admissible defence had been filed and the adjudicator may make an order under section 73(1) of the Act that the company name be changed. A deadline of 28 September 2022 was given for any hearing request to challenge that view.

16. No hearing request was received by the deadline of 28 September 2022. On 5 October 2022, Ms Brown telephoned the Tribunal asking for a copy of the Tribunal’s letter to the primary respondent of 22 June 2022. The Tribunal emailed a copy of the letter, also confirming that it had been delivered and signed for on 23 June 2022.

17. Also on 5 October 2022, the primary respondent filed a hearing request on form CNA4 (with the requisite fee), signed by Mark Brown, attaching an unamended form CNA2 (i.e. still without a signature and without clarification as to the representative’s details). A letter was also attached, dated 5 October 2022, from Ms Brown, which said that the primary respondent had originally filed a defence and that it would have continued to defend its company name if the applicant hadn’t given the impression that it was going to withdraw the application.

18. I held a hearing by telephone conference on 27 October 2022, at which Thomas Hooper, of Bird & Bird LLP, represented the applicant and Hilary Brown attended for the primary respondent.

Decision

19. Towards the end of Ms Brown’s letter dated 5 October 2022, she said:

Please also be aware that I am not acting as a representative of the respondents [sic] company and so my details were not included in the original CNA2 form.

20. I informed Ms Brown that the Tribunal had received no confirmation that she was authorised to act for the primary respondent and I asked for her comments. Ms Brown told me that the co-respondent, Mark Brown, is her son and that whilst she was “not acting in a legal capacity”, she is a director of the primary respondent. I said that she is not recorded as a director on the Register of Companies, to which she replied that as far as she is concerned she is a director. I find Ms Brown’s belief surprising given that she is recorded as a director of her company, Virgo Consulting Services Limited, on the Register of Companies and so would be aware of the legal requirements of being appointed as a director.

21. Notwithstanding the above, I permitted Ms Brown to make submissions on behalf of the primary respondent. As will be seen, it makes no difference to the outcome of this decision.

22. Ms Brown submitted that the application was unfair. After a few minutes of such submissions, I reminded her that the purpose of the hearing was to persuade me to exercise my discretion and admit the late-filed defence. The hearing was not about the merits, or otherwise, of the application against the company name. I pointed out that the conversation she had had with Thomas Hooper on 3 May 2022 was still two days after the deadline for filing a defence. Ms Brown replied that she couldn’t give a reason why the defence was late and that although she didn’t want to make excuses, she works full-time. She added nothing of substance as to the reasons why deadlines had been missed.

23. Rule 3 of the rules states (my emphasis):

Procedure for objecting to a company’s registered name

3. (1) An application under section 69(2) shall

(a) be made on the appropriate form;

(b) include a concise statement of the grounds on which the application is made;

(c) include an address for service in the United Kingdom; and

(d) be filed at the Office.

(2) The adjudicator shall send a copy of the appropriate form to the primary respondent.

(3) The adjudicator shall specify a period within which the primary respondent must file its defence.

(4) 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).

(5) In its counter-statement the primary respondent shall—

(a) include an address for service in the United Kingdom;

(b) include a concise statement of the grounds on which it relies;

(c) state which of the allegations in the statement of grounds of the applicant it admits and which it denies; and

(d) state which of the allegations it is unable to admit or deny, but which it requires the applicant to prove.

(6) Any member or director of the primary respondent who is joined as a respondent to the application must be joined before the end of a period specified by the adjudicator.

(7) The adjudicator shall send a copy of the appropriate form referred to in paragraph (4) to the applicant.

24. Whilst the first half of 3(4) is mandatory (“The primary respondent, before the end of that period, shall file a counter-statement on the appropriate form”), the second half of the rule is constructed so that there is room for the adjudicator to exercise discretion if the counterstatement on the appropriate form is not filed by the deadline specified under rule 3(3).

25. Further, under rule 7, the adjudicator may exercise their discretion to extend any time period:

Requests for extensions of time

7. (1) The adjudicator may extend (or further extend) any period which has been specified under any provision of these Rules even if the period has expired.

(2) Any party can request an extension of any time period specified under any provision of these Rules.

(3) Any request for a retrospective extension must be filed before the end of the period of 2 months beginning with the date the time period in question expired.

(4) Any request made under paragraph (2) shall be made on the appropriate form and shall include reasons why the extra time is required. A request for a retrospective extension shall also include reasons why the request is being made out of time.

26. However, for discretion to be exercised, there have to be compelling and cogent reasons given by the party requesting the discretion. There have been no compelling and cogent reasons given by the primary respondent. Very little was said at the hearing: all Ms Brown really said was that she could not explain why the defence was not filed by 1 May 2022. No explanation was proffered as to why the original CNA2 was filed on 8 June 2022, but was dated 28 April 2022, with no fee being paid until 8 June 2022. Once Ms Brown had referred to contact with the applicant being a reason for delaying filing the defence, the Tribunal directed that reasons for the delay be filed as a witness statement before it could consider the matter any further. Without a witness statement, no factual weight could be given to the correspondence sent to the Tribunal. It was incumbent upon the primary respondent, which has the burden of filing the defence/counterstatement under rules 3(3) and 3(4), to provide such a witness statement before any consideration could be given to an exercise of the adjudicator’s discretion.

27. The primary respondent failed on each occasion to comply with the directions to amend the original, defective, form CNA2 and to file a form CNA5 and fee. In fact, by 19 August 2022, any form CNA5 would have been out of time as that was after the period of two months following 1 May 2022. That may not have mattered given that rule 7(1) affords a wide discretion. However, it is apparent that the primary respondent has displayed a total disregard for the deadlines imposed by the Tribunal, as follows:

• deadline for filing a defence: 1 May 2022
  
• deadline for requesting a hearing upon failure to file a defence: 27 May 2022
  
• deadline for filing an amended form CNA2 and a form CNA5: 6 July 2022
  
• deadline for requesting a hearing upon failure to comply with 6 July 2022 deadline: 27 July 2022
  
• deadline for filing a witness statement, amended form CNA2 and form CNA5: 2 September 2022
  
• deadline for requesting a hearing upon failure to comply with 2 September 2022 deadline: 29 September 2022

A hearing request was filed on 5 October 2022.

28. Not a single one of these deadlines was complied with. Although a further copy of the form CNA2 was filed on 31 August 2022, prior to the 2 September 2022 deadline, it was unamended. At no point was an amended form CNA2 filed; nor a form CNA5. No witness statement was filed, as had been directed. The letters from the Tribunal were clear and the rules are not obscure. The primary respondent has failed to comply with any of the deadlines and any of the directions and has offered no basis upon which I can exercise my discretion. I therefore find that the primary respondent has not filed a defence/counterstatement and the application for a change of company name is unopposed. Consequently, in accordance with section 73(1) of the Act, I make the following order:

(a) VALE CROSSFIT LIMITED shall change its name within one month of the date of this order to one that is not an offending name;^{[footnote 2]}

(b) VALE CROSSFIT LIMITED and Mark John Robert Brown 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.

29. 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.

30. 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.

31. 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

32. The Tribunal awards costs from the published scale at paragraph 10 of the Tribunal’s Practice Direction. This is intended to provide a contribution, but not recompense, to the successful party. It is the applicant who has been successful in these proceedings and who is entitled to a contribution towards its costs. CrossFit, LLC, having been successful, is entitled to a contribution towards its costs, which includes attendance at the hearing, requested by the primary respondent. I order VALE CROSSFIT LIMITED and Mark John Robert Brown, being jointly and severally liable, to pay CrossFit, LLC costs on the following basis:

Fee for application: £400
Statement of case: £400
Attendance at the hearing: £300

Total: £1100

33. This sum is to be paid within twenty-one days of the expiry of the appeal period or within twenty-one days of the final determination of this case if any appeal against this decision is unsuccessful.

34. 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 names adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended. According to section 74(1) of the Act, there is no separate right of appeal in relation to costs.

Dated 1 November 2022

Judi Pike
Company Names Adjudicator

1. Form CNA1. ↩

2. 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. ↩