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Detailed guide: Company Names Tribunal: practice direction

Company Names Tribunal

January 16
10:16 2017

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Unless otherwise stated references to the Act mean the Companies Act 2006 and references to the Rules means the Company Names Adjudicator Rules 2008.

1. Scope of the practice direction

The Rules provide the framework for the management of proceedings brought before the Tribunal. Certain of the Rules are prescriptive in nature, such as the requirements as to fees and forms. However, the adjudicator has a wide discretion to manage proceedings as he/she sees fit. For the sake of clarity and consistency and so that parties know what to expect, this direction sets out the Tribunals practice in relation to the main areas where the adjudicators discretion operates.

This practice direction will not fetter the discretion of the adjudicator.

2. Setting the period for filing a defence

The Rules do not specify time periods for actions to be completed; time periods are set by the adjudicator. The normal period of time (under rule 3(3)) for the primary respondent to file a defence under rule 3(4) will be two months. However, in setting the period for the filing of a defence, the adjudicator will consider whether there are any factors, such as an indication in the application of the results of any pre-action enquiries or contact between the parties, which may mean that a different period of time will be appropriate.

3. Joining of co-respondents to proceedings

3.1.1 Under section 69(3) of the Act any member or director of a respondent company may be joined to proceedings before the company names adjudicator.

Rule 3(6) states:

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.

The use of the word may in the Act indicates that joining a member or director is a discretionary power of the adjudicator. It is necessary for the applicant to request that a party(ies) is joined to a case and the adjudicator will consider the merits of the request. When the application is formally sent to the primary respondent, the Tribunal will notify the applicant and primary respondent of the date by which such a request should be made, if it has not been made with the application.

3.1.2 The first requirement of an applicant in requesting the joining of a member or director of a company is to furnish evidence that the party named does indeed have this status; a matter that can be shown e.g. by the filing of copies of documents from Companies House. The applicant should also give reasons as to why it wants another party(ies) joined to the proceedings. Having received a request supported by evidence of the relevant status of the party and reasons for the request, the adjudicator will write to the proposed co-respondent(s) asking for their comments on the request. It would be a denial of natural justice not to allow the potential co-respondent(s) to comment upon the request. The adjudicator will then give a preliminary view on the matter, allowing the parties the opportunity to request a hearing as per rule 5(3) before the preliminary view becomes a final decision. The preliminary view will include a brief statement as to the reasons that have given rise to it.

3.1.3 If a party is joined to the proceedings the applicant will have to copy all documentation that it has filed in relation to the application to the co-respondent(s) within 14 days of the notification of the joining. Any further correspondence and evidence must also be copied to the co-respondent(s).

3.1.4 In relation to costs the adjudicator will give careful consideration to the facts of the case as to whether a co-respondent(s) should be jointly and severally liable for costs, especially where no defence has been filed (under rules 3(2), (3), (4) and (5) only the primary respondent can file a defence). The adjudicator will take into account, for example, whether it is established that the co-respondent is the controlling mind of the respondent company.

3.1.5 Applications in relation to limited liability partnerships (LLPs) can be made to the adjudicator. In the case of LLPs, co-respondents will be members and/or designated members (as per the Limited Liability Partnerships Act 2000). The same criteria in considering requests to join co-respondents will apply to LLPs as apply to companies.

4. Evidence

4.1 The purpose of evidence before the tribunal is for parties to prove their case by demonstrating facts and rebuttal of the other sides version of events. In relation to the applicant, it is a statutory requirement under section 69(1)(a) and (b) that it establishes goodwill or reputation (section 69(7)). Unless the nature and extent of the applicants goodwill or reputation are particularised in the claim and admitted by the respondent, evidence filed by the applicant must, therefore, include proof that the applicant has the requisite goodwill or reputation to bring the action before the tribunal, in addition to other facts which it considers relevant.

4.1.2 To assist the tribunal in coming to a decision, the respondents evidence should show not only facts in relation to the allegations which the applicant has made but should include facts about its own activities, such as the nature, history and longevity of its business activities, with specific reference to the contested company name.

4.2 Time periods for filing evidence

4.2.1 Under rule 4 periods of two months will be set for the filing of evidence. Normally the applicant will file evidence first, the respondent(s) will be given an opportunity to file evidence in answer, and the applicant will be permitted to file evidence in reply. However, the adjudicator will consider the statement of grounds and counterstatement and, having regard to the issues in dispute, may decide that the respondent(s) should file evidence first, or that the evidence should be filed concurrently by the parties. Similarly, under rule 6(3), the adjudicator may control the evidence by giving directions; for example, as to the issues on which he/she requires evidence; the nature of the evidence, and the manner in which the evidence is to be filed.

4.2.2 The adjudicator may allow the filing of additional evidence; he/she will decide upon the time to be allowed after considering the nature of the evidence which is to be filed.

4.3 Without prejudice material

4.3.1 Correspondence between the parties in disputes about a company name have been included with statements of case and in evidence. In some circumstances this correspondence is clearly without prejudice. It is possible that the best evidence that the registration of a company name was opportunistic within the terms of the Act will arise from correspondence between the parties. This may give rise to a tension between the desire of a party to put forward its best case and the without prejudice rule. However, the without prejudice rule must still have effect upon proceedings before the tribunal. There is no opt-out from the fundamental principles of the without prejudice rule. However, the holders motives in registering the challenged company name will only become material if the owner of the company name presents a prima facie justification for its registration, as per section 69 (4) of the Act, the applicant having established the requisite goodwill.

4.3.2 Where the parties have legal representation it will be for the legal representatives to submit that documents should be excluded as being without prejudice; the adjudicator will not act of his or her own motion.

4.3.3 If an application is defended and one or both parties does not have legal representation, an adjudicator will consider whether material should be excluded from the proceedings on the basis that it falls within the without prejudice rule, when and where the adjudicator considers that the matter becomes material to the proceedings.

4.3.4 The parties will be advised of the adjudicators view of the matter. They will be able to contest the findings of the adjudicator in correspondence and, if a party continues to contest the decision of the adjudicator, it will be able to request an interlocutory hearing to make its submissions. If an adjudicator has considered matter that it is decided is without prejudice and for which privilege has not been waived, the adjudicator will recuse (disqualify) himself/herself from making the substantive decision. The adjudicator(s) making the decision will not be tainted by having seen without prejudice material. Further, references to and comments on without prejudice material will also be liable to be excluded from the proceedings, depending upon the nature of the references and the comments.

4.3.5 The normal criteria for considering whether matter is without prejudice will be taken into account. Parties are reminded of the judgments of the courts in Framlington Group Limited and AXA Framlington Group Limited v Ian Barnetson [2007] EWCA Civ 502, Unilever plc v Procter & Gamble Co [1999]

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