Decision

Decision on UBS Warburg Investment Group

Updated 16 January 2019

Order under the Companies Act 2006

In the matter of application No. 1731

For a change of company name of registration No. 11129610.

Decision

The company name UBS WARBURG INVESTMENT GROUP LTD has been registered since 2 January 2018 under number 11129610.

By an application filed on 28 March 2018, UBS Group AG 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 13 April 2018, 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” delivery. Also on 13 April 2018, the Tribunal wrote to Andrey Kapustin to inform him that the applicant had requested that he be joined to the proceedings. As no comments were received from Mr Kapustin in relation to this request, on 5 July 2018, he was joined as a co-respondent. Also on 5 July 2018, 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.

As it later transpired that the letter of 5 July 2018 sent to the primary respondent was sent to the wrong address, it was reissued to the correct address on 20 August 2018. That letter was subsequently returned to the Tribunal on 28 August 2018, marked “RTS – not at this address”. There was a further mix-up, as on 20 August 2018, another letter was sent to the co-respondent, again joining him to the proceedings; that letter was also sent to the wrong address and was returned to the Tribunal on 28 August 2018 marked as above. Although not strictly necessary, that error was rectified in an official letter dated 25 September 2018. Despite the above errors, I am satisfied that the parties have been granted a period of 14 days to request a hearing in relation to these matters, if they so wished and no request for a hearing has been made.

The primary respondent did not file a defence within the two 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 has not responded to the allegations made, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) UBS WARBURG INVESTMENT GROUP 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) UBS WARBURG INVESTMENT GROUP LTD and Andrey Kapustin 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.

Costs

In its Form CNA1, the applicant indicates it is claiming costs. Box 7 appearing on that Form reads as follows:

“Did you warn the company that if it did not change its name that you would start legal proceedings against it? If “yes”, when did you warn the company?”

The applicant responded to those questions by entering “No” in the appropriate box.

Paragraph 10.4.1 of the tribunal’s practice direction reads as follows:

“If an application is undefended, an award of costs is likely to be made against the respondent, provided a request for costs has been made by the applicant and pre-action enquiries have been made, and provided the application succeeds. It should be noted, however, that the adjudicator will not normally award costs to the applicant if the respondent, whilst not defending the application, nevertheless satisfies the tribunal that it did not receive any notice, or did not receive adequate notice, that the application would be made. The adjudicator will, likewise, normally not award costs if the applicant indicates in box 7 of the application form (CNA1) that it did not contact the company prior to making the application.” (my emphasis)

In view of the published guidance shown above, I make no award of costs to the applicant.

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 30 October 2018.

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. ↩