Animal Concern Ltd v Animal Concern (Scotland) Ltd
| Case Outcome | Application successful |
| Court | Company Names Tribunal (EW) |
| Administrative Decision Number | SC632956,O/450/20 |
| Date | 16 September 2020 |
| Respondent | Animal Concern (Scotland) Ltd |
In the matter of application No. 3013
By Animal Concern Ltd
for a change of company name of registration
No. SC632956
BACKGROUND1. The company name ANIMAL CONCERN (SCOTLAND) LTD (“the primary respondent”) has been registered since 10 June 2019 under number SC632956.
2. By an application filed on 3 September 2019, Animal Concern Ltd (“the applicant”), applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (“the Act”).
3. The applicant explains that the name associated with it which caused it to make the application is Animal Concern (Scotland) Ltd. It states:
“We were founded as Animal Concern (Scotland) Ltd in 1986 and, because we were becoming involved in some work outside of Scotland, we changed our name to Animal Concern Ltd in 1992. Between 1988 and 1992 we were involved in numerous campaigns, generated a very great deal of positive media coverage throughout Scotland and beyond and gained many new members. We also helped establish local groups in towns up and down the country and generated publicity in many local papers and on local radio.”
4. The applicant explains that it objects to the primary respondent’s name because:
“Despite changing our name we continued to be referred to by many people and some media reporters as Animal Concern (Scotland) Ltd. Even now, 17 (sic) years after changing our name, we are occasionally referred to as Animal Concern (Scotland) Ltd in the media and we do receive the occasional donation made out to Animal Concern (Scotland) Ltd which our bank accepts. More worrying is that we still receive legacies left to Animal Concern (Scotland) Ltd. Now, if a lawyer needs to find Animal (Concern) Scotland Ltd regarding payment of a legacy, the first contact details they are going to find are those of this new company.”
5. The applicant further explains that on 29 July 2019 it wrote to the primary respondent’s director and secretary, Iona Middleton. A copy of that letter is provided as is a copy of the applicant’s follow-up email of 17 August 2019, in which it stated:
“When I didn’t get a reply from you to my signed for letter of July 29th regarding the above, I checked on the Royal Mail website only to discover that they had not been able to deliver it and apparently had not attempted a second delivery. I asked them to try again and I see that it did get to you on the 14th August.”
6. The applicant asks that Ms Middleton be joined to the proceedings as a co-respondent. In response to the question on the Form CNA1 which reads “What action do you want the Tribunal to take?” one of the applicant’s responses read:
“…Another option would be to instruct Ms Middleton to change the name of Animal Concern (Scotland) Ltd to something less likely to cause confusion such as Animals (Scotland)?…”
7. A copy of the application was sent to the primary respondent’s registered office on 8 October 2019, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008 (“the rules”). The copy of the application which was sent by Royal Mail “Signed For” and ordinary post allowed until 8 November 2019 for the filing of a defence. On the same date, the Tribunal wrote to Ms Middleton (at the same address) again by “Signed For” delivery and ordinary post, advising her that the applicant had asked that she be joined to the proceedings as a co-respondent; she was allowed until 8 November 2019 to comment upon that request.
8. The substance of the letter sent to the primary respondent on 8 October 2019, was as follows:
“If you wish to file a defence, you should complete the enclosed form CNA 2 (notice of defence) and return it within one month of the date of this letter, that is on, or before, 8 November 2019. This is in accordance with rules 3(3) and 3(4) of the Company Names Adjudicator Rules 2008. A fee of £150 must accompany form CNA 2 or paid before the expiry of the deadline for the filing of form CNA 2. Before you decide whether to file a defence, you may wish to refer to The Company Names Tribunal Practice Direction (copy enclosed). 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. If you decide not to defend your company name, the application will normally succeed. A decision in favour of the applicant will normally include an award of costs in favour of the applicant, provided costs have been requested by the applicant. If you inform the tribunal that you did not receive adequate notice that an application would be made before it was filed, the tribunal will normally not award costs to the applicant. If you are not defending the application and you consider that you did not receive adequate notification from the applicant before the filing of the application, you should inform the tribunal on or before the date for the filing of the defence. Once an order is issued by the tribunal the adjudicator cannot revisit any costs issues.”
9. On 6 November 2019, the letters sent to both the primary respondent and Ms Middleton by “Signed For” delivery were returned to the Tribunal by the Royal Mail. The labels used by the Royal Mail and placed on the envelopes to indicate that the letters were “refused” were dated “26/10/19”; I shall return to these envelopes below. The copy of the letter that had been sent to Ms Middleton by ordinary post was also returned to the Tribunal marked “RTS – Gone Away 10/10/19.”
10. In official letters to the parties dated 7 January 2020 sent by both Royal Mail “Signed For” and ordinary post, the Tribunal stated:
“The official letter dated 8 October 2018 (sic) informed you that if you wished to defend your company name you should file a form CNA2 on or before 8 November 2018 (sic). This is in accordance with rules 3(3) and (4) of the Company Names Adjudicator Rules 2008. As no CNA2 has been filed within the period set, in accordance with rule 3(4) the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006. I note however that Iona Middleton resigned as a company director on 10 June 2019 before the application was filed. Therefore it is the preliminary view of the adjudicator that she will not be joined to the proceedings. However, in accordance with rule 5(3) either party has the right to be heard. The request must be made on form CNA4. A fee of £100 must accompany the form CNA4. A period of 14 days from the date of this letter is provided for either party to make a request for a hearing; so any request must be made on or before 21 January 2020. If no hearing is requested within this term the adjudicator will consider making an order.”
11. In a letter dated 14 January 2020, the primary respondent (signed by “E Stokes”), stated:
“You make reference to an official letter dated October 8th 2019 sent to Animal Concern Scotland Ltd and requiring a response by November 8th 2019. I am writing to inform you no such letter has been received or signed for. Please confirm you accept this is the case. if not, please provide the following: (1) the address the October 8th letter was purportedly sent to, (2) confirmation it was signed for, (3) the date of the signing and signature (if possible).”
12. The Companies House website indicates that Elizabeth Mary Frances Stokes was appointed as the primary respondent’s sole director and secretary on 2 August 2019. The Tribunal responded to that request in an official letter dated 12 February 2020 (sent by both “Signed For” and ordinary post), in which it stated:
“Our files show that an official letter dated 8 October 2019 sent by “signed for” post was returned to this office on 6 November 2019, indicating that service was refused. A copy of the letter and envelope is enclosed for your information and I have also included a copy of the Track and Trace details from the Royal Mail website. May I also mention that the same letter was sent by standard Royal Mail post and has not been returned.”
13. The parties were granted a period of 14 days i.e. until 26 February 2020 to request a hearing in relation to this matter. I note that the letter sent to the primary respondent by “Signed For” delivery was returned to the Tribunal by the Royal Mail on 10 March 2020 this time marked “not called for.” Regardless, on 24 February 2020, a Form CNA4 accompanied by the appropriate fee was filed. The Form CNA4 was again signed by Elizabeth Stokes.
The appointment of the hearing14. In an official letter dated 16 March 2020, the Tribunal wrote to the parties advising them that the primary respondent’s request for a hearing would take place, by telephone, at 10.30am on 31 March 2020. The letter contained the following:
“Please notify the Hearings team of all the names of persons attending.”
15. The covering email contained the following:
“Please could you supply us with the telephone number to contact you on the day.”
16. The applicant responded in an email dated 19 March 2020 in which it indicated that its Company Secretary, Mr John F Robins, would represent it at the hearing. In an email dated 23 March 2020 sent from animalconcernscotland@gmail.com, Ms Stokes stated:
“With reference to your letter of 16th March I as sole director and company secretary will represent Animal Concern (Scotland) Ltd at the hearing appointed for Tuesday 31st March at 10:30am. My telephone number is 07xxxxxxxxx.”
17. On 25 March 2020, the Tribunal received an email from the primary respondent attached to which were two documents. The first document is headed “Submission by Animal Concern (Scotland) Ltd”; the letter bears the name “E Stokes”. The second, obtained from the Royal’s Mail’s “Track and Trace” website, is in relation to the letter sent by the Tribunal to the primary respondent on 8 October 2019; I shall return to this document below.
18. On the morning of the...
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