Decision

Decision on Waterloo Housing Limit

Updated 21 July 2020

Companies Act 2006

In the matter of application No. 1863 by Waterloo Housing Group Limited

For a change to the company name of Waterloo Housing Limited, company registration 1598104.

1. Company 11598104 (“the primary respondent”) was incorporated on 1 October 2018 with the name WATERLOO HOUSING LIMITED. This name has caused Waterloo Housing Group Limited (“the applicant”) to make an application to this Tribunal, on 10 October 2018, under section 69 of the Companies Act 2006 (“the Act”).

2. 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 these 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.

3. At the request of the applicant, one of the primary respondent’s directors, Andrew Palmer, was joined to the proceedings under the provisions of section 69(3) of the Act. Mr Palmer was given notice of this request and an opportunity to comment or to object. At a Case Management Conference (“CMC”) held before an Adjudicator on 15 January 2019 in which the further conduct of these proceedings was discussed, Mr Palmer accepted that he should be joined to the proceedings and confirmed he understood the potential costs consequences in this regard.

4. The applicant claims that the name associated with it is Waterloo Housing Group Limited. It explains that:

[It] has just completed a merger with another housing association to form a new group called Platform Housing Group. As part of this process we wish to change our name to Waterloo Housing Limited. We have notified our many customers of the imminent name change, as required, prior to the registration of new Rules with the FCA.

5. In relation to its goodwill/reputation under the name relied upon, the applicant states:

We are a long established housing association and registered provider of social housing, registered with the Regulator of Social Housing. We own 27,000 affordable housing properties located across the midlands. We are a registered society, registered with the FCA under the Co-Operative and Community Benefits Scheme Act 2014 (Reg No. 7737). We provide an important service to the community and vulnerable people. As a result of this merger we planned to rename Waterloo Housing Group Limited as it is now a subsidiary of Platform Housing Group and it is therefore important to drop the word “Group” from the Waterloo name to avoid confusion to stakeholders.

6. The applicant further states:

The company that has been set up in the name of Waterloo Housing Limited has been set up entirely for vexatious purposes and not to provide housing. The other companies listed as being owned by its sole director have no housing purpose, and could potentially damage the reputation of ourselves as a charitable housing provider. The existence of this other company over which we have no control also makes us potentially more vulnerable to fraudulent activity.

7. The applicant explains that it also objects to the company name WATERLOO HOUSING LIMITED because:

An individual has intercepted a letter we have sent to our customers, advising them of the landlord name change and, for what appears to be entirely vexatious purposes formed a new company also called Waterloo Housing Ltd…We wish to protest about this company formation and call it (sic) to be deleted from the register of companies because:

(a) the name is too close to that of our existing company registered with the FCA…and so if it were to be used for trading, would cause confusion to stakeholders of Waterloo Housing Group Limited.

(b) it has been set up with the intention to deliberately disrupt the legitimate business of our significant charitable enterprise which provides an essential community service and for no other reason whatsoever.

(c) the company has been formed for vexatious purposes and should not have been registered by Companies House.”

8. The applicant requests that the primary respondent “be struck off for the reasons highlighted.” In an official letter of 24 October 2018, the tribunal advised the applicant that the relief it sought was “not within the tribunal’s remit.” Having indicated that on 5 October 2018 it warned the primary respondent that if it did not change its name legal proceedings would commence, the applicant seeks its costs. Attached to the Form CNA1 are two documents. Although not provided in the normal evidential format, as the Form CNA1 is signed by Andrew Bush and contains a confirmation that the “facts stated in this notice are true”, we shall bear them in mind. They consist of what appears to be an undated organisation chart (which refers to “waterloo housing group”) and an undated draft letter, the latter of which Mr Bush states was “sent to all customers at the end of September 2018” which is entitled “Confirmation of changes to Waterloo Housing Group’s structure” which, it explains, will come into effect on 1 October 2018 and adds:

…this will need to be made payable to Waterloo Housing Limited, as the Waterloo name will change slightly from this date to reflect that we will be joining Platform Housing Group.

9. The primary respondent filed a notice of defence, signed by Mr Palmer which was subsequently amended following the CMC mentioned above. Attached to the original and amended Forms CNA2 were a number of documents. Once again, these were not filed as evidence in these proceedings. However, like Mr Bush, Mr Palmer has signed the Form CNA2 and confirmed the facts stated are true. As a consequence, we have read all these documents and have borne their contents in mind in reaching a conclusion. While we do not consider it necessary to record all of Mr Palmer’s comments here, what follows gives a flavour of the primary respondent’s position.

10. The following question appears in the Form CNA2: “State which of the allegations in the statement of grounds you agree with and which you deny”. In response, inter alia, Mr Palmer states:

Firstly, I wholeheartedly disagree with the claim that we asked anybody for any financial gain…We have incurred costs ourselves, we have one contract and all invoices are up to date. We are running our company in a proper and legal manner…If a time comes we will inform [the applicant] if we no longer require the company and I will allow them to deal with the shareholders. We are not out to harm [the applicant].

11. In response to the question: “State which of the allegations you are unable to admit or deny and which you require the applicant to prove”, inter alia, Mr Palmer states:

I would just like to clarify I have never intercepted any letter…I kindly ask [this tribunal] to dismiss [the applicant’s] application and they maybe can easily set-up a company in their own location, for example, Waterloo Housing (Solihull) Limited or (West Midland)….

12. The primary respondent relies upon defences based upon sections 69(4)(a), (b) and (e) of the Act (shown above).

13. Despite the parties being very well-known to one another, at the CMC, Mr Palmer explained that he required the applicant to provide evidence of its goodwill/reputation in the name and field of business referred to in its Form CNA1 and confirmed he accepted the costs consequences in this regard.

14. Neither party is professionally represented. Only the applicant filed evidence. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Neither side chose to be heard nor did they elect to file written submissions in lieu of attendance.

Evidence

The applicant’s evidence

15. The applicant’s evidence consists of a witness statement from Andrew Martin Bush. Although Mr Bush does not identify the position he holds at the applicant in his statement, an email sent by him to the tribunal on 8 January 2019 contains the following “AD Governance and Policy/Company Secretary”. Mr Bush explains that, inter alia, he provides:

1…evidence as a genuine and true record of examples of Waterloo Housing Group Limited goodwill and reputation…

16. Item 1 consists of six pages. Mr Bush describes it as follows:

Financial Conduct Authority (FCA) Registration of Rule Amendment for Waterloo Housing Group Limited in accordance with the Co-Operative and Community Benefit Societies Act 2014… and first part of a revised Rules for Waterloo Housing Group Limited which shows the organisation’s charitable objects.

17. The first page of item 1 bears the letterhead of the FCA and is dated 12 November 2018. It is an “Acknowledgement of registration of a rule amendment” and refers to the “Society Name” as “Waterloo Housing Group Limited.” At the top of pages 4-6 of item 1 there appears the following: “NATIONAL HOUSING FEDERATION” and “MODEL RULES 2015.” Page 6 indicates that “The name of the society shall be Waterloo Housing Group Limited” and lists its “Objects” as including “the business of: providing and managing housing (including Social Housing)” and “providing assistance to help house people…”

18. Mr Bush describes item 2 as:

Regulator of Social Housing extract from list of Registered Providers of Social Housing (24 April 2019) showing Waterloo Housing Group Limited registration details and registered provider number (4879).

19. We note that an entry has been highlighted which contains the following: > Waterloo Housing Group Limited 4879 09/04/2018 Non-Profit.

20. Item 3 is an email dated 23 April 2019 from Mr Palmer at waterloohousinglimited@gmail.com to “OJ”@waterloo.org.uk which includes the following:

…Also I need to speak with someone like “DS” about the legal documents I am receiving by mistake when they should have been sent to Waterloo Housing Group not us at Waterloo Housing Limited…

21. Of this email Mr Bush states:

…This illustrates our concern for potential confusion between the respondent’s enterprise and our legitimate social housing business with consequent risk to our good will and reputation.

22. Item 5 consists of a redacted email exchange dated 2 and 3 May 2019 which Mr Bush describes as being between:

our insurers and [the applicant] arising from delays in receiving a claim as a consequence of it being sent in error to the respondent rather than ourselves as intended.

23. Item 6 consists of a letter dated 7 January 2019 from the Health & Safety Executive under, inter alia, the Health & Safety At Work Etc Act 1974 in relation to the “examination of your Passenger/Goods Lift….” which bears the primary respondent’s address. Of this, Mr Bush states:

…sent in error to the respondent rather than ourselves as intended. This was not sent on to us by the respondent for some period of time following receipt.

24. Finally, item 7 is a letter dated 13 March 2019 from a law firm addressed to the primary respondent (but intended for the applicant) headed “This is a formal notice of the claim against you” which advises that “your insurers will need to see this letter immediately.”

25. That concludes our summary of the evidence filed in the proceedings to the extent we consider it necessary.

Decision

26. If the primary respondent defends the application, as here, the applicant must establish that it has goodwill or reputation in relation to a name that is the same, or sufficiently similar, to that of the company name suggesting a connection between the company and the applicant. If this burden is fulfilled, it is then necessary to consider if the primary respondent can rely upon defences under section 69(4) of the Act.

The applicant’s goodwill

27. Section 69(7) of the Act defines goodwill as a “reputation of any description”. Consequently, in the terms of the Act it is not limited to Lord Macnaghten’s classic definition in IRC v Muller & Co’s Margerine Ltd [1901] AC 217:

What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start.

28. The relevant date is the date of incorporation of the primary respondent which, in this case, is 1 October 2018. The applicant must show that it had a goodwill or reputation at this date associated with the name Waterloo Housing Group Limited.

29. We begin by reminding ourselves that neither party to these proceedings is professionally represented. We mention that because the evidence provided by the applicant to demonstrate that as at 1 October 2018 it had goodwill/reputation in the name Waterloo Housing Group Limited is far from perfect. For example, other than the reference to “MODEL RULES 2015” (item 1) and “09/04/2018” (item 2) all the other documents provided appear to be from after the relevant date.

30. However, we have not lost sight of the fact that the parties are very well-known to another. This is exemplified by the following comments which appeared in either the primary respondent’s Notices of Defence or the emails attached to those Forms:

• “I have viewed Waterloo Housing Groups Accounts…”;

• “I am also aware of many negative remarks about Waterloo Housing Group”;

• “…I have been in touch with…tenants of Waterloo Housing Group…”

• “Waterloo Housing Group, we believe, have let us down over the last 16 months or so…” (email of 8 October 2018 from Mr Palmer to “MD” @platformhq.com);

• “…the money we put into our home (Waterloo Housing Groups property)…” (email mentioned above)

31. In addition, we also note that the primary respondent has taken no issue with the following which appeared in the Form CNA1:

We are a long established housing association and registered provider of social housing, registered with the Regulator of Social Housing. We own 27,000 affordable housing properties located across the midlands. We are a registered society, registered with the FCA under the Co-Operative and Community Benefits Scheme Act 2014 (Reg No. 7737). We provide an important service to the community and vulnerable people.

32. In relation to establishing a goodwill/reputation, this tribunal routinely looks for guidance to case law developed in trade mark proceedings. In such proceedings, it is well-established that goodwill of more than a trivial nature, even if it is small, is capable of protection (Stacey v 2020 Communications [1991] FSR 49 refers). While the evidence provided has its faults, it refers throughout to “Waterloo Housing Group Limited” as being a housing association and provider of social housing and the unchallenged assertion is that it is “long-established” in this regard. Despite its faults, when considered as a whole and factoring in Mr Palmer’s illustrative comments, we are satisfied that at the relevant date of 1 October 2018, the applicant had a protectable goodwill in the name Waterloo Housing Group Limited in relation to the services of a housing association and provider of social housing.

Similarity of names

33. The other initial burden facing the applicant is that the company name is sufficiently similar to Waterloo Housing Group Limited to suggest a connection between the company and the applicant. The company’s name is Waterloo Housing Limited. The only difference between the two names is the inclusion of the word “Group” in the applicant’s name. The descriptive word “Group” is often found in company names to indicate that there are a number of separate entities under common ownership.

34. As the word WATERLOO is the only distinctive component of the applicant’s and primary respondent’s name, we are satisfied that the primary respondent’s name is sufficiently similar to the name under which the applicant has operated and generated goodwill that its use in the UK would be likely to mislead by suggesting a connection between the primary respondent and the applicant. As the ground specified in subsection 69(1)(b) is established, the onus switches to the primary respondent to establish whether it can rely on any of the defences pleaded in the Notice of defence.

Defences

35. The statutory defences under section 69(4) are set out at the beginning of this decision. The primary respondent is relying upon the following:

Section 69(4)(a) - that the name was registered before the commencement of the activities on which the applicant relies to show goodwill.

36. The company was incorporated under its current name on 1 October 2018. However, as item 2 bears a reference to “Waterloo Housing Group Limited” as early as 9 April 2018, this defence cannot succeed and is dismissed accordingly.

Sections 69(4)(b)(i) and (ii) - that the company is operating under the name or (ii) is proposing to do so and has incurred substantial start-up costs in preparation.

37. The relevant date for the assessment is the date of the applicant’s application i.e. 10 October 2018. The operating defence does not, in our view, represent a high hurdle. It simply requires that the respondent has, before the relevant date, engaged in some form of external commercial activity which shows that the company is operating under the name.

38. We remind ourselves that in its Notice of defence, the primary respondent states:

…We have incurred costs ourselves, we have one contract and all invoices are up to date. We are running our company in a proper and legal manner…

39. However, as the primary respondent has elected not to file any evidence in these proceedings we are simply not in a position to reach a conclusion as to whether such activities satisfy either of the defences mentioned and, as a consequence, they fail and are dismissed accordingly.

Section 69(4)(b)(iii) – that the company was formerly operating under the name and is now dormant.

40. As the primary respondent’s “status” is recorded as “Active” on the Companies House database, this defence is not available and is dismissed accordingly.

Section 69(4)(e) - that the interests of the applicant are not adversely affected to any significant extent

41. To affect adversely the interests of the applicant to any significant extent the company name must do more than just sit on the register at Companies House. The onus is on the primary respondent to show why its company name does not adversely affect the applicant’s interests to any significant extent. The onus is not on the applicant. Once again, the primary respondent has filed no evidence in support of its claim. We do however note that in its Notice of defence, the primary respondent states:

We can give both Companies House Tribunal and Waterloo Housing Group Limited our 100% promise our company will not be sold to anyone. If a time comes we will inform Waterloo Housing Group Limited if we no longer require the company and I will allow them to deal with the shareholders. We are not out to harm Waterloo Housing Group.

And:

…they maybe can easily set-up a company in their own location, for example, Waterloo Housing (Solihull) Limited or (West Midland).

42. We are unsurprised that the primary respondent’s promise not to sell the company to a third party, and to advise the applicant if it no longer requires it, was of little comfort to the applicant. The fact that the applicant is not able to change its name to Waterloo Housing Limited following its recent merger will, in our view, adversely affect it to a significant extent. In addition, as the applicant’s evidence shows (items 3, 5, 6 and 7) documents are routinely being mistakenly sent to the primary respondent and not to the applicant. The evidence provided relates to “legal documents” (item 3), insurance claims (items 5 and 7) and a letter from the Health & Safety Executive in relation to the examination of a lift (item 6). The adverse consequences of not receiving such documents on time is self-evident and may lead to, for example, increased costs for the applicant and danger to public health. However, beyond that there is the reputational damage the applicant may suffer if it is not perceived as dealing with matters in a timely manner. In short, not only has the primary respondent not satisfied us that its company name will not adversely affect the applicant’s interests to any significant extent, all the evidence points to the opposite conclusion and, as a consequence, the defence based upon section 69(4)(e) fails and is dismissed accordingly.

Outcome

43.

As we have dismissed the defences, the application succeeds.

44. Therefore, in accordance with section 73(1) of the Act, we make the following order:

(a) WATERLOO HOUSING LIMITED shall change its name within one month of the date of this order to one that is not an offending name^{[footnote 1]};

(b) WATERLOO HOUSING LIMITED and Andrew Palmer 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.

45. In accordance with Section 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.

46. 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.

47. All respondents, including Mr Palmer, have a legal duty under Section 73(1)(b)(ii) of the Act 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

48. Attached to the Form CNA2 is an undated letter to Mr Palmer from “MD” on the letterheaded paper of “waterloo housing group” which includes the following:

Failing that we will take immediate legal action to ensure this happens and will seek recovery of all our costs, with an immediate initial cost of £400 incurred by us for listing the case with the Company Names Tribunal.

49. This, we infer, is the letter of 5 October 2018 mentioned in the Form CNA1. It is clear that the primary respondent and Mr Palmer were, from the outset, fully aware that a successful application would lead to adverse costs consequences. As the applicant has been successful, it is entitled to a contribution towards its costs, based upon the scale of costs published in paragraph 10.1 of the Practice Direction.

50. However, as the applicant has not been professionally represented, the following guidance contained in the Practice Direction applies: “Those without representation will normally receive 50% of the above but will receive the full expenses”. With the above in mind, we award the applicant costs on the following basis:

Fee for application: £400
Preparing a statement and considering the primary respondent’s statements: £200
Preparing evidence: £250
Fee for filing evidence: £150

Total: £1000

51. We order WATERLOO HOUSING LIMITED and Andrew Palmer, being jointly and severally liable, to pay Waterloo Housing Group Limited the sum of £1000 within 21 days of the expiry of the appeal period, or within 21 days of the final determination of this case if any appeal against this decision is unsuccessful. 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.

52. 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.

53. The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.

Dated 12th February 2020

Christopher Bowen
Company Names Adjudicator

Judi Pike
Company Names Adjudicator

Heather Harrison
Company Names Adjudicator

1. An offending name means a name that, by reason of it’s 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. ↩