Decision

Decision on Virgin Airways Ltd

Updated 1 April 2021

Order under the Companies Act 2006

In the matter of application No. 3093

For a change of company name of registration No. SC645157

Decision

The company name VIRGIN AIRWAYS LTD has been registered since 23 October 2019 under number SC645157.

By an application filed on 9 December 2019, Virgin Enterprises 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 8 January 2020, 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. On 8 January 2020, the Tribunal wrote to John Patrick Long to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Mr Long in relation to this request. On 4 March 2020, Mr Long was joined as a co-respondent. On 4 March 2020, 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 March 2020, a copy of the Tribunal’s letter of 4 March 2020 which joined Mr Long to the proceedings was returned to the Tribunal. That letter contained the following handwritten note from Mr Long:

I see no reason why I should pay a fee to defend this action when I have done nothing wrong. You represent the govt as does Company House. I got the name from Companies House after another company gave it up, whether or not that was through pressure from Virgin or not I don’t know. But I got this company name legally through a govt body. I also have the domain name…[Mr Long refers to discussions between the parties which it is not appropriate to include here]…In the Oxford dictionary Virgin means pure, untouched, new etc, Virgin is not all these, my name is not Virgin Atlantic, it is Virgin Airways Ltd.

My solicitor’s who will act free have said they would take action against Virgin, Companies House, domain name site, and govt who are prepared to make money for set up of company and when you check there site or Companies House Virgin Airways was available. They obviously know about Virgin Atlantic so Virgin Airways should not have been available if Companies House thought there may be a conflict of interest.

On 4 August 2020, the Tribunal wrote to Mr Long. That letter read as follows:

The official letters of 4 March 2020 indicating that no defence to the application had been received and joining you as a co-respondent, refer. On 10 March 2020, the tribunal received a copy of the official letter advising you that you had been joined to the proceedings, upon which appeared handwritten comments from you. A copy of that letter including your handwritten comments is being sent to the applicant’s professional representatives, Burges Salmon LLP (“BSL”).

As I am sure you are aware, the Company Names Tribunal is located at the Intellectual Property Office in Newport, South Wales. Following the Covid-19 outbreak in March, access to the building has been very limited and until now it has not been possible for the Tribunal to issue letters to parties via the Royal Mail.

Your comments have been noted. However, as I trust you will appreciate, this Tribunal cannot comment upon either the approach adopted by Companies House or the discussions that have taken place between the parties. As far as I am aware, the Tribunal has not received a request from you to be heard in respect of either the decision to join you to the proceedings or that this Tribunal may treat the application as unopposed.

You are now allowed a final period of 14 days from the date of this letter to request a hearing by filing Form CNA4, together with the official fee of £100. A copy of this Form is attached.

If nothing is heard from you by the conclusion of this period, the case will be passed to an Adjudicator for an Order to be issued.

A review of the Royal Mail’s Track and Trace website indicates that that letter was delivered at 1.26pm on 5 August 2020 and was signed for by John Long. No request for a hearing was received by the Tribunal either by the deadline set i.e. 18 August 2020 or by the date of the issuing of this decision.

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 did not respond to the official letter of 4 August 2020, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) VIRGIN AIRWAYS 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) VIRGIN AIRWAYS LTD and John Patrick Long 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.

Virgin Enterprises Limited having been successful, is entitled to a contribution towards its costs. I order VIRGIN AIRWAYS LTD and John Patrick Long, being jointly and severally liable, to pay Virgin Enterprises Limited costs on the following basis:

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

Total: £800

This sum is to be paid within seven days of the expiry of the appeal period or within seven 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 6th October 2020

Christopher Bowen
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. ↩