伊人直播

Decision under the Companies Act 2006

In the matter of application No. 3311

By Hermitage Capital Management Limited

For a change of company name of registration No. 12634656

Decision on Costs

Background

1. This is a decision on costs against which there is, under section 74 of the Companies Act 2006 (鈥渢he Act鈥�), no right of appeal. As a consequence, I have, where I consider it appropriate, reproduced below verbatim certain parts of the pleadings and submissions filed.

2. Company 12634656 (鈥渢he primary respondent鈥�) was incorporated on 30 May 2020 with the name Hermitage Capital Partners PLC. On 23 October 2020, Hermitage Capital Management Limited (鈥渢he applicant鈥�), made an application to this Tribunal under section 69 of the Companies Act 2006 (鈥渢he Act鈥�) for a change of name of this company.

3. In its application, the applicant states that it has goodwill/reputation in the names 鈥淗ermitage鈥�, 鈥淗ermitage Capital Management鈥�, 鈥淗ermitage Capital鈥� and 鈥淗ermitage Fund鈥� and that this goodwill/reputation is in relation to:

鈥淔inance, in particular the field of investments and asset management, specifically the operation and management of hedge funds.鈥�

4. The applicant asks the Tribunal to order the primary respondent to change its name to:

鈥渙ne that is not the same as, or confusingly similar to [the names shown above] and not to now, or in the future, cause or permit any steps to be taken calculated to result in another company being registered with a name similar [to those shown above].鈥�

5. Having indicated that on 2 September 2020, it warned the company that if it did not change its name it would start legal proceedings against it, the applicant further states:

We would stress that we have made a number of efforts to contact the respondent. Correspondence has been sent to the respondent鈥檚 registered address via recorded delivery and normal post, as well as by email. We have received no response.

6. A copy of this application was sent to the primary respondent鈥檚 registered office i.e. 6 Hardy Passage, London, N22 5NZ (鈥淗ardy Passage鈥�) on 23 November 2020, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008 and a period expiring on 23 December 2020 was allowed for a defence to be filed. The copy of the application was sent by the Royal Mail鈥檚 鈥淪igned For鈥� service and also by standard mail. On the same date, the Tribunal wrote to William Joseph Lyster and John Michael Lyster to inform them that the applicant had requested that they be joined to the proceedings.

7. As the Tribunal received no comments or objections, in an official letter dated 9 March 2021, both were joined to the proceedings as co-respondents and made jointly and severally liable with the primary respondent for costs. On the same date, the parties were advised that as no defence had been received to the application, the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Act. The parties were granted a period of 14 days to request a hearing in relation to these matters.

8. On 15 March 2021, the Tribunal received an email from 鈥淛ody Lyster鈥�. It transpired that this is a reference to Mr William Joseph Lyster. The email explained that having spoken to various Tribunal Casework Examiners (鈥淐WE鈥�) on 12 and 15 March 2021:

I am contacting you to confirm I have received your letter dated 9th March 2021鈥�

I am happy to change the name of said entity. This is a very disturbing letter to receive in the midst of this pandemic when we have more pressing financial concerns. I feel this strong arm tactic and general intimidatory approach is both unjust and completely unwarranted.

Sequence of events and notifications

I have been informed鈥�that a warning letter dated the 2nd Sep 2020 from [the applicant] was directed to the company. Secondly, a letter was sent [by the Tribunal] dated the 23rd November 2020. I was not aware of either of the above鈥�I will liaise with Co house and delete the name 鈥淗ERMITAGE鈥� from the company name. Please confirm this is agreeable and the matter will then be closed. Proposed new name: 鈥淟ondon City Capital Partners PLC.鈥�

9. In an email dated 24 March 2021, Mr Jody Lyster advised the Tribunal that the company鈥檚 name had been changed to London City Capital Partners Plc with effect from 21 March 2021. I note that that email contains a reference to: 鈥淗ermitage Property Group, 150 Warwick Road, Kensington, London, W14 8PS.鈥� On 1 April 2021, the Tribunal received a further email from Jody Lyster, the operative part of which reads:

I also wish to reaffirm my statements below that I had not received communications notifying me of an issue. I am incensed that I may now be subject to costs regarding a company that I formally incorporated with Co House on the 20th May 2020. I sincerely hope this will be the end of the matter鈥�

10. In an official letter dated 19 May 2021, the Tribunal wrote to the parties. It stated:

The name of company no 12634656 has changed to one that does not appear to be an offending name, namely: London City Capital Partners PLC.

The case has been reviewed by the Adjudicator and it is his preliminary view that 拢800.00 is to be awarded to the applicant, given that notice was given to the primary respondent prior to action at the tribunal and that it appears that the primary respondent鈥檚 failure to respond was because it didn鈥檛 call for the official letters of 23 November 2020. I enclose copies of the returned letters of 23 November 2020 marked as 鈥榥ot called for鈥� by the Royal Mail for your attention.

11. Attached to that official letter were copies of the official letters of 23 November 2020 sent to the primary respondent and co-respondents by 鈥淪igned For鈥� post, all of which were returned to the Tribunal on 21 December 2020. These letters were accompanied by photocopies of the front of the envelopes upon which there appeared a Royal Mail sticker (hand dated 鈥�16/12鈥�) which indicates that the letters were 鈥淣ot called for鈥�.

12. The parties were allowed 14 days to challenge that preliminary view by filing a Form CNA4 (and fee) to request a hearing and, on 24 May 2021, the primary respondent requested a hearing. I note that Form contains a reference to Hardy Passage. In an email accompanying the Form CNA4, Mr Jody Lyster stated:

I restate my position鈥�I had not received the letters of the 23rd November 2020. I also reaffirm the second point in line with Gov guidelines and COVID precautions during the pandemic I would not have been in a position to circulate freely through the community and 鈥渃all in on the Royal Mail鈥�. Finally, 2020 was a very tough year and as set out below on becoming aware of the matter I liaised with your office and resolved the matter without delay.

Representation at the hearing

13. A hearing to consider the matter took place before me, by telephone, on 15 June 2021. At the hearing, the primary respondent was represented by Mr Jody Lyster and the applicant by Ms Becky Knott of Barker Brettell (鈥淏B鈥�), the applicant鈥檚 professional representatives in these proceedings. As required, Ms Knott filed a skeleton argument in advance of the hearing, which, at the hearing, Mr Lyster confirmed he had received.

Hearing discussion

14. As both parties were present at the hearing and as the applicant provided a skeleton argument in advance of the hearing, it is not necessary for me to record the competing submissions here in great detail. At the hearing, Mr Lyster felt very strongly that because the primary respondent took immediate steps to change the company name as soon as it became aware that an application to the Tribunal had been filed (i.e. when it received the official letter of 9 March 2021), that ought to be the end of the matter.

15. At the hearing, I asked Mr Lyster if he could explain why the applicant鈥檚 pre-action letters of 2 September 2020 and the official letters of 23 November 2020 were returned to those who sent them marked 鈥淣ot at address鈥� and 鈥淣ot called for鈥� respectively. In this regard, he explained that the primary respondent鈥檚 and co-respondent鈥檚 registered addresses at Companies House i.e. Hardy Passage, is a service address.

16. At the hearing, Mr Lyster specifically confirmed that Hardy Passage did not provide a mail scanning/forwarding service. He went on to explain that he was out of the country from late November 2020 to January 2021 and added that given the advice provided by the relevant authorities to those in London during the various stages of the covid lockdowns, to use the words contained in his email of 24 May 2021, he would not have been in a position to 鈥渃irculate freely through the community鈥�. He did, however, fairly accept that when lockdown restrictions permitted, mail sent to Hardy Passage was obtained by the primary respondent.

17. Although Ms Knott鈥檚 submissions were much the same as those contained in her skeleton argument, in response to a comment from Mr Lyster at the hearing, she explained that having failed to locate an email address for the primary respondent at the time the pre-action letters were sent, the applicant also sent an email to an alternative address it felt was related to the primary respondent i.e.

info@hermitagerealestate.co.uk.

18. Further investigations including on LinkedIn (which was specifically mentioned by Mr Lyster at the hearing) were, she explained, inconclusive, although this may, she speculated, be because searches were conducted for Mr Lyster鈥檚 full name as opposed to the name he appears to go by and which is used in his email address i.e. jody@hermitagepropertygroup.com.

Decision

19. Section 74 of the Act reads:

Appeal from adjudicator鈥檚 decision

(1) An appeal lies to the court from any decision of a company names adjudicator to uphold or dismiss an application under section 69.

(2) Notice of appeal against a decision upholding an application must be given before the date specified in the adjudicator鈥檚 order by which the respondent company鈥檚 name is to be changed.

(3) If notice of appeal is given against a decision upholding an application, the effect of the adjudicator鈥檚 order is suspended.

(4) If on appeal the court-

(a) affirms the decision of the adjudicator to uphold the application, or

(b) reverses the decision of the adjudicator to dismiss the application,

the court may (as the case may require) specify the date by which the adjudicator鈥檚 order is to be complied with, remit the matter to the adjudicator or make any order or determination that the adjudicator might have made.

(5) If the court determines a new name for the company it must give notice of the determination-

(a) to the parties to the appeal, and

(b) to the registrar.鈥�

20. Rule 11 of the Company Names Adjudicator Rules 2008 (鈥渢he rules鈥�) states:

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.

21. The relevant parts of the Tribunal鈥檚 Practice Direction read as follows:

鈥�9. Voluntary change of name

9.1 New name does not appear to adjudicator to be an offending name

9.2 Name changed after CNA1 served

9.2.1 The adjudicator will be minded to decide that the application is without object and the application will be closed.

9.2.2 If any of the parties object to the closing of the proceedings the adjudicator will consider the merits of the objection(s) and decide on the course of action to be followed.

9.2.3 If the company has voluntarily changed its name after the application has been filed and it had notice that an application would be made, an award of costs could still be made against the newly named company as it remains the same legal entity as the originally named company. Any award of costs would be dependent upon the applicant seeking an award of costs and satisfying the tribunal that the respondent had received sufficient notice that the application would be made (see 10.4). Requests for costs in such cases will be considered on the facts of the individual case.鈥�

And:

鈥�10. Costs

10.1 Scale of costs

10.1.1 Under rule 11, the adjudicator may award costs (in Scotland, expenses) to any party in the proceedings. 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.鈥�

For those with legal representation the scale of costs will be as follows:

Procedure Costs

Preparing a statement and considering the other side鈥檚 statement. From 拢300 to 拢500 depending on the nature of the statements.

Preparing evidence and considering and commenting on the other side鈥檚 evidence. From 拢500, if the evidence is light, to 拢2,500 if the evidence is substantial. The award can go above this range in cases involving an exceptional amount of relevant evidence but may be cut down if the successful party had filed a significant amount of unnecessary evidence.

Preparing for and attending a hearing. Up to 拢1,500 per day of hearing, capped at 拢3,000 for the full hearing unless one side has behaved unreasonably. From 拢100 to 拢500 for preparation of submissions, depending on their substance, if there is no hearing. Expenses.

(a) Official fees arising from the action that have been paid by the successful party (other than fees for extensions of time.)

(b) The reasonable travel and accommodation expenses for any witnesses of the successful party required to attend a hearing for cross examination.

Those without representation will normally receive 50% of the above but will receive the full expenses.鈥�

Chronology of events

22. For the sake of convenience, this appears to be as follows:

30 May 2020 鈥� the primary respondent is incorporated as Hermitage Capital Partners PLC;

2 September 2020 鈥� the applicant writes to the primary respondent by recorded delivery, ordinary post and email allowing until 30 September 2020 for a response;

18 September 2020 鈥� BB are notified that the applicant鈥檚 letters sent to the primary respondent are returned annotated 鈥淣ot at address鈥�. No 鈥渂ounce-back鈥� was received from the email address used;

23 October 2020 - application filed with the Tribunal;

23 November 2020 - the Tribunal serves the application upon the primary respondent and co-respondents at Hardy Passage;

21 December 2020 - the official letters sent by 鈥淪igned For鈥� post to the primary and co-respondents are returned to the Tribunal by the Royal Mail marked 鈥渘ot called for鈥�;

23 December 2020 - deadline to file a defence and comment on the joining issue;

9 March 2021 - the Tribunal notes the application has not been defended, joins the named individuals as co-respondents and allows until 23 March 2021 for a hearing to be requested;

15 March 2021 - email from Jody Lyster indicating that the applicant鈥檚 letter of 2 September 2020 was not received nor were any of the copies of the official letters of 23 November 2020 which were sent by both 鈥淪igned For鈥� and ordinary post; 21 March 2021 - the primary respondent鈥檚 company鈥檚 name is changed to London City Capital Partners PLC;

19 May 2021 - preliminary view issued by the Tribunal indicating that the new name is non-offending and that an order of costs to the applicant in the amount of 拢800 is appropriate. A period expiring on 2 June 2021 is allowed for a hearing to be requested.

24 May 2021 鈥� the primary respondent requests a hearing to challenge the preliminary view on costs.

23. In its skeleton argument, the applicant states:

鈥�16. As a matter of course, the Applicant鈥檚 representatives would always try to engage in pre-action correspondence before filing an action as serious as a Company Name Complaint with the Tribunal. This case is no exception and the Applicant made every effort to contact the Respondent before filing the application.

17. The Applicant鈥檚 application could have been avoided had the Respondent engaged with the pre-action correspondence from the Applicant and changed its name at an earlier date. The Applicant gave the Respondent sufficient notice that the application would be made (over six weeks) and confirmed in box 6 of Form CNA1 that it contacted the company prior to making the application.

18. Consequently, it would be inequitable for the Applicant to be forced to bear the full costs of making its application. In the circumstances, the application to the Tribunal was both reasonable and proportionate and, as a result, the Applicant is entitled to a contribution towards the costs it incurred in making its application. This is on all fours with Case O-156-14, Blue Sky Law Limited vs Blue Sky Legal Services Limited.

19. To conclude, the Applicant asks that the Tribunal鈥檚 preliminary view of 19th May 2021 be upheld and that the award of costs of 拢800 be made in favour of it鈥︹��

Considerations

24. I fully accept Mr Lyster鈥檚 submissions to the effect that the covid pandemic has had a significant impact in this country including, from time to time, on the freedom of movement. However, it is equally clear to me in my role both as a Company Names Adjudicator and a member of the general public, that since the start of the pandemic in March 2020, many businesses, large and small and the public at large have found ways to adapt to these unusual circumstances.

25. Although the applicant has not provided copies of its pre-action letter of 2 September 2020 or evidence of the response it states it received in reply, I see absolutely no reason to doubt such a letter was sent or that it received the reply it said it did. Consequently, when one reviews the chronology mentioned above, it is clear that on 2 September 2020, the applicant wrote to the primary respondent (by both recorded delivery and ordinary post) to the address held for it on the Companies House database (i.e. Hardy Passage), allowing it until 30 September 2020 to change its name. It also wrote to what it considered to be a related email address. On 18 September 2020, the applicant鈥檚 representative states that it was notified that these letters were returned marked 鈥淣ot at address鈥�. The Tribunal鈥檚 letters sent by 鈥淪igned For鈥� post were also returned, although this time they were marked 鈥淣ot called for鈥�. That suggests that insofar as the latter is concerned, the Royal Mail attempted to deliver the letters to the primary respondent鈥檚 registered address, but as it appears no one was available to sign for them, it is likely, given the Royal Mail鈥檚 usual practice, that a card was left indicating they may be collected. There is, however, nothing to suggest that the letters sent by ordinary post (which did not require a signature) were not successfully delivered.

26. As the primary respondent鈥檚 registered address has not changed since its incorporation in May 2020, exactly why the applicant鈥檚 letters of 2 September 2020 were returned to it marked 鈥淣ot at address鈥� is unknown. Any speculation on my part in this regard would be fruitless. Regardless, in my view, the applicant took all reasonable steps to make the primary respondent aware of its concerns and in so doing allowed it a reasonable amount of time to consider the matter and, if it considered it appropriate, to change its name. In addition, following the expiry of the period allowed by the applicant for the primary respondent to take action (i.e. 30 September 2020), the applicant did not make an application to this Tribunal until 23 October 2020.

27. While I understand Mr Lyster鈥檚 submission to the effect that the primary respondent鈥檚 registered address did not provide any type of mail forwarding service, when one elects to use an address over which, it appears, the primary respondent had no control, one has to take responsibility for any failures resulting from that decision. Had the primary respondent chosen a registered address over which it had control, it is likely that the applicant鈥檚 pre-action letters would have been received and acted upon in a timely manner by the primary respondent and the matter would not have come before the Tribunal. However, that is not the case. Given Mr Lyster鈥檚 submissions at the hearing on the effect of the pandemic and the severe restrictions it placed on the freedom of movement in London, it appears that even if the applicant鈥檚 pre-action letters has been safely delivered to the registered address, as no alternative arrangements had been put in place by the primary respondent to ensure that it received such mail, it appears unlikely that the primary respondent would have become aware of the letters in any case.

28. In reaching a conclusion, I remind myself that the primary respondent took action to change its name to a non-offending name as soon as it became aware that an application had been filed. However, the applicant warned the primary respondent of its concerns prior to the filing of the application and allowed it an opportunity to take action. Having had those letters returned marked 鈥淣ot at address鈥�, there is nothing to suggest that reissuing the letters on the same basis would have resulted in a different outcome. What is absolutely clear is that the primary respondent鈥檚 failure to receive those letters was not a fault of the applicant. Having failed to react to those letters, the filing of the application was entirely reasonable and proportionate.

29. While I also note that the primary respondent failed to respond to the Tribunal鈥檚 letters of 23 November 2020, as I mentioned above, in my view, that is because of a failure on its part to put systems in place to ensure that it received mail in a timely manner. However, even if the official letters had been received by the primary respondent and the name changed in the period allowed for the primary respondent to file a defence, given the factual matrix described, the fact remains that having failed to respond to the applicant鈥檚 pre-action letter of 2 September 2020, in order for the applicant to have the name changed, an application to this Tribunal would still have been required.

Outcome

30. Weighing up all of the above factors, I have concluded that the primary respondent鈥檚 failure to receive and act upon the applicant鈥檚 pre-action letters and those of the Tribunal are entirely of its own making. In those circumstances, I am satisfied that the applicant鈥檚 decision to make an application to the Tribunal was reasonable and proportionate and that the preliminary view expressed in the official letter of 19 May 2021 to award the applicant 拢800 as a contribution towards the costs it incurred in preparing and filing the application was appropriate. For the avoidance of doubt, at the hearing Ms Knott made no request for an award of costs in relation to the hearing itself.

31. I therefore order London City Capital Partners PLC (being the same legal entity as Hermitage Capital Partners PLC), William Joseph Lyster and John Michael Lyster being jointly and severally liable, to pay to Hermitage Capital Management Limited costs on the following basis:

Preparing a statement: 拢400
Costs (official fee): 拢400

Total: 拢800

32. As indicated above, there is no right of appeal against this decision.

Dated this 28 June 2021

Christopher Bowen
Company Names Adjudicator