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Company Law Reform Bill [HL] (32-38)


Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 5 — A company’s name
Chapter 3 — Similarity to other names

32

 

(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.

(2)   

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—

5

(a)   

to be the subject of a direction under section 68 (power of registrar to

direct change of name), or

(b)   

to give rise to a further application under section 70.

(3)   

The order must specify a date by which the respondent company’s name is to

be changed and may be enforced—

10

(a)   

in England and Wales or Northern Ireland, in the same way as an order

of the High Court;

(b)   

in Scotland, in the same way as a decree of the Court of Session.

(4)   

If the respondent company’s name is not changed in accordance with the order

by the specified date, the adjudicator may determine a new name for the

15

company.

(5)   

If the adjudicator determines a new name for the respondent company he must

give notice of his determination—

(a)   

to the applicant,

(b)   

to the respondents, and

20

(c)   

to the registrar.

(6)   

For the purposes of this section a company’s name is changed when the change

takes effect in accordance with section 81(1) (on the issue of the new

certification of incorporation).

74      

Appeal from adjudicator’s decision

25

(1)   

An appeal lies to the court from any decision of a company names adjudicator

to uphold or dismiss an application under section 70.

(2)   

Notice of appeal against a decision upholding an application must be given

before the date specified in the adjudicator’s order by which the respondent

company’s name is to be changed.

30

(3)   

If notice of appeal is given against a decision upholding an application, the

effect of the adjudicator’s 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,

35

   

the court may (as the case may require) specify the date by which the

adjudicator’s order is to be complied with, remit the matter to the adjudicator

or make any order that the adjudicator might have made.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 5 — A company’s name
Chapter 4 — Other powers of the Secretary of State

33

 

Chapter 4

Other powers of the Secretary of State

75      

Provision of misleading information etc

(1)   

If it appears to the Secretary of State—

(a)   

that misleading information has been given for the purposes of a

5

company’s registration by a particular name, or

(b)   

that an undertaking or assurance has been given for that purpose and

has not been fulfilled,

   

the Secretary of State may direct the company to change its name.

(2)   

Any direction under this section—

10

(a)   

must be given within five years of the company’s registration by that

name, and

(b)   

must specify the period within which the company is to change its

name.

(3)   

The Secretary of State may by a further direction extend the period within

15

which the company is to change its name.

   

Any such direction must be given before the end of the period for the time

being specified.

(4)   

A direction under this section must be in writing.

(5)   

If a company fails to comply with a direction under this section, an offence is

20

committed by—

(a)   

the company, and

(b)   

every officer of the company who is in default.

   

For this purpose a shadow director is treated as an officer of the company.

(6)   

A person guilty of an offence under this section is liable on summary

25

conviction to a fine not exceeding level 3 on the standard scale and, for

continued contravention, a daily default fine not exceeding one-tenth of level

3 on the standard scale.

76      

Misleading indication of activities

(1)   

If in the opinion of the Secretary of State the name by which a company is

30

registered gives so misleading an indication of the nature of its activities as to

be likely to cause harm to the public, the Secretary of State may direct the

company to change its name.

(2)   

The direction must be complied with within a period of six weeks from the date

of the direction or such longer period as the Secretary of State may think fit to

35

allow.

   

This does not apply if an application is duly made to the court under the

following provisions.

(3)   

The company may apply to the court to set the direction aside.

   

The application must be made within the period of three weeks from the date

40

of the direction.

(4)   

The court may set the direction aside or confirm it.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 5 — A company’s name
Chapter 5 — Change of name

34

 

   

If the direction is confirmed, the court shall specify the period within which the

direction is to be complied with.

(5)   

If a company fails to comply with a direction under this section, an offence is

committed by—

(a)   

the company, and

5

(b)   

every officer of the company who is in default.

   

For this purpose a shadow director is treated as an officer of the company.

(6)   

A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 3 on the standard scale and, for

continued contravention, a daily default fine not exceeding one-tenth of level

10

3 on the standard scale.

Chapter 5

Change of name

77      

Change of name

(1)   

A company may change its name—

15

(a)   

by special resolution (see section 78), or

(b)   

by other means provided for by the company’s articles (see section 79).

(2)   

The name of a company may also be changed—

(a)   

by resolution of the directors acting under section 65 (change of name

to comply with direction of Secretary of State under that section); or

20

(b)   

by order under section 73 (order of adjudicator following objection to

company name).

78      

Change of name by special resolution

(1)   

Where a change of name has been agreed to by a company by special

resolution, the company must give notice to the registrar.

25

   

This is in addition to the obligation to forward a copy of the resolution to the

registrar.

(2)   

Where a change of name by special resolution is conditional on the occurrence

of an event, the notice given to the registrar of the change must—

(a)   

specify that the change is conditional, and

30

(b)   

state whether the event has occurred.

(3)   

If the notice states that the event has not occurred—

(a)   

the registrar is not required to act under section 80 (registration and

issue of new certificate of incorporation) until further notice,

(b)   

when the event occurs, the company must give notice to the registrar

35

stating that it has occurred, and

(c)   

the registrar may rely on the statement as sufficient evidence of the

matters stated in it.

79      

Change of name by means provided for in company’s articles

(1)   

Where a change of a company’s name has been made by other means provided

40

for by its articles—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 5 — A company’s name
Chapter 6 — Trading disclosures

35

 

(a)   

the company must give notice to the registrar, and

(b)   

the notice must be accompanied by a statement that the change of name

has been made by means provided for by the company’s articles.

(2)   

The registrar may rely on the statement as sufficient evidence of the matters

stated in it.

5

80      

Change of name: registration and issue of new certificate of incorporation

(1)   

This section applies where the registrar receives notice of a change of a

company’s name.

(2)   

If the registrar is satisfied—

(a)   

that the new name complies with the requirements of this Part, and

10

(b)   

that the requirements of the Companies Acts, and any relevant

requirements of the company’s articles, with respect to a change of

name are complied with,

   

the registrar must enter the new name on the register in place of the former

name.

15

(3)   

On the registration of the new name, the registrar must issue a certificate of

incorporation altered to meet the circumstances of the case.

81      

Change of name: effect

(1)   

A change of a company’s name has effect from the date on which the new

certificate of incorporation is issued.

20

(2)   

The change does not affect any rights or obligations of the company or render

defective any legal proceedings by or against it.

(3)   

Any legal proceedings that might have been continued or commenced against

it by its former name may be continued or commenced against it by its new

name.

25

Chapter 6

Trading disclosures

82      

Requirement to disclose company name etc

(1)   

The Secretary of State may by regulations make provision requiring

companies—

30

(a)   

to display specified information in specified locations,

(b)   

to state specified information in specified descriptions of document or

communication, and

(c)   

to provide specified information on request to those they deal with in

the course of their business.

35

(2)   

The regulations—

(a)   

must in every case require disclosure of the name of the company, and

(b)   

may make provision as to the manner in which any specified

information is to be displayed, stated or provided.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 5 — A company’s name
Chapter 6 — Trading disclosures

36

 

(3)   

The regulations may provide that, for the purposes of any requirement to

disclose a company’s name, any variation between a word or words required

to be part of the name and a permitted abbreviation of that word or those

words (or vice versa) shall be disregarded.

(4)   

In this section “specified” means specified in the regulations.

5

(5)   

Regulations under this section are subject to affirmative resolution procedure.

83      

Civil consequences of failure to make required disclosure

(1)   

This section applies to any legal proceedings brought by a company to which

section 82 applies (requirement to disclose company name etc) to enforce a

right arising out of a contract made in the course of a business in respect of

10

which the company was, at the time the contract was made, in breach of

regulations under that section.

(2)   

The proceedings shall be dismissed if the defendant (in Scotland, the defender)

to the proceedings shows—

(a)   

that he has a claim against the claimant (pursuer) arising out of the

15

contract that he has been unable to pursue by reason of the latter’s

breach of the regulations, or

(b)   

that he has suffered some financial loss in connection with the contract

by reason of the claimant’s (pursuer’s) breach of the regulations,

   

unless the court before which the proceedings are brought is satisfied that it is

20

just and equitable to permit the proceedings to continue.

(3)   

This section does not affect the right of any person to enforce such rights as he

may have against another person in any proceedings brought by that person.

84      

Criminal consequences of failure to make required disclosures

(1)   

Regulations under section 82 may provide—

25

(a)   

that where a company fails, without reasonable excuse, to comply with

any specified requirement of regulations under that section an offence

is committed by—

(i)   

the company, and

(ii)   

every officer of the company who is in default;

30

(b)   

that a person guilty of such an offence is liable on summary conviction

to a fine not exceeding level 3 on the standard scale and, in the case of

continued contravention, to a daily default fine not exceeding one-

tenth of level 3 on the standard scale.

(2)   

In subsection (1)(a) “specified” means specified in the regulations.

35

85      

Minor variations in form of name to be left out of account

(1)   

For the purposes of this Chapter, in considering a company’s name no account

is to be taken of—

(a)   

whether upper or lower case characters (or a combination of the two)

are used,

40

(b)   

whether diacritical marks or punctuation are present or absent,

(c)   

whether the name is in the same format or style as is specified under

section 58(1)(b) for the purposes of registration,

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 6 — A company’s registered office

37

 

   

provided there is no real likelihood of names differing only in those respects

being taken to be different names.

(2)   

This does not affect the operation of regulations under section 58(1)(a)

permitting only specified characters, diacritical marks or punctuation.

Part 6

5

A company’s registered office

General

86      

A company’s registered office

   

A company must at all times have a registered office to which all

communications and notices may be addressed.

10

87      

Change of address of registered office

(1)   

A company may change the address of its registered office by giving notice to

the registrar.

(2)   

The change takes effect upon the notice being registered by the registrar, but

until the end of the period of 14 days beginning with the date on which it is

15

registered a person may validly serve any document on the company at the

address previously registered.

(3)   

For the purposes of any duty of a company—

(a)   

to keep available for inspection at its registered office any register,

index or other document, or

20

(b)   

to mention the address of its registered office in any document,

a company that has given notice to the registrar of a change in the address of

its registered office may act on the change as from such date, not more than 14

days after the notice is given, as it may determine.

(4)   

Where a company unavoidably ceases to perform at its registered office any

25

such duty as is mentioned in subsection (3)(a) in circumstances in which it was

not practicable to give prior notice to the registrar of a change in the address of

its registered office, but—

(a)   

resumes performance of that duty at other premises as soon as

practicable, and

30

(b)   

gives notice accordingly to the registrar of a change in the situation of

its registered office within 14 days of doing so,

   

it is not to be treated as having failed to comply with that duty.

Welsh companies

88      

Welsh companies

35

(1)   

In the Companies Acts a “Welsh company” means a company as to which it is

stated in the register that its registered office is to be situated in Wales.

(2)   

A company—

(a)   

whose registered office is in Wales, and

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 7 — Re-registration as a means of altering a company’s status

38

 

(b)   

as to which it is stated in the register that its registered office is to be

situated in England and Wales,

   

may by special resolution require the register to be amended so that it states

that the company’s registered office is to be situated in Wales.

(3)   

A company—

5

(a)   

whose registered office is in Wales, and

(b)   

as to which it is stated in the register that its registered office is to be

situated in Wales,

   

may by special resolution require the register to be amended so that it states

that the company’s registered office is to be situated in England and Wales.

10

(4)   

Where a company passes a resolution under this section it must give notice to

the registrar, who shall—

(a)   

amend the register accordingly, and

(b)   

issue a new certificate of incorporation altered to meet the

circumstances of the case.

15

Part 7

Re-registration as a means of altering a company’s status

Introductory

89      

Alteration of status by re-registration

A company may by re-registration under this Part alter its status—

20

(a)   

from a private company to a public company (see sections 90 to 96);

(b)   

from a public company to a private company (see sections 97 to 101);

(c)   

from a private limited company to an unlimited company (see sections

102 to 104);

(d)   

from an unlimited private company to a limited company (see sections

25

105 to 107);

(e)   

from a public company to an unlimited private company (see sections

109 to 111).

Private company becoming public

90      

Re-registration of private company as public

30

(1)   

A private company (whether limited or unlimited) may be re-registered as a

public company limited by shares if—

(a)   

a special resolution that it should be so re-registered is passed,

(b)   

the conditions specified below are met, and

(c)   

an application for re-registration is delivered to the registrar in

35

accordance with section 94, together with—

(i)   

the other documents required by that section, and

(ii)   

a statement of compliance.

(2)   

The conditions are—

(a)   

that the company has a share capital;

40

(b)   

that the requirements of section 91 are met as regards its share capital;

 
 

 
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