Halifax Plc & Ors v Halifax Repossessions Ltd & Ors

A court cannot use its enforcement powers to effect a registered company’s change of name by a method that bypasses the statutory scheme. Under the Companies Act 1985, the change requires a special resolution passed by the company’s members, followed by registration and an altered certificate of incorporation. The court cannot authorise another person to substitute a different mechanism. Nor may it direct the Registrar of Companies to perform a function that the Act does not confer. The court may be able to combine enforcement stages or make an order for execution of a document in an appropriate case, but those questions were left open.

Halifax brought trademark infringement and passing-off proceedings against Mr Gopee and three companies whose names included “Halifax”. After judgment against Mr Gopee, Blackburne J ordered him to take reasonable steps to procure changes to the companies’ names. The names remained unchanged.

Patten J subsequently ordered the Registrar of Companies to change the names. Lightman J later ordered the companies and their subscribers to take the necessary steps, authorised a solicitor to act for them, and awarded costs. Mr Gopee appealed against Patten J’s order and the costs order. The central issues were whether the court could effect a company-name change through Order 45 Rule 8 and whether it could direct the Registrar to make the change.

1. Appeals allowed. The orders of Patten J dated 29 May 2002 and Lightman J dated 14 January 2003 were set aside. There was no order for costs.
2. Lady Justice Arden held that Order 45 Rule 8 did not authorise the court to change a registered company’s name in a manner inconsistent with section 28 of the Companies Act 1985. A registered company is a creature of statute and can act only within the statutory scheme. Section 28(1) required a special resolution, and the court could not vary that requirement. The order would not provide for filing at the Companies Registry, issuance of an altered certificate, or the effective date of the change.
3. The statutory scheme reinforced that conclusion. The provisions governing the company’s name on business premises, documents and its common seal could impose fines and personal liability if the legal name and the time of change were uncertain.
4. The order against the Registrar was also inappropriate. The Registrar’s functions were conferred by statute. Although the court might direct an act incidental to those functions, it could not direct the Registrar to act outside them, particularly without the Registrar’s argument or consent.
5. The court left open whether the two stages contemplated by Order 45 Rule 8 could be collapsed, or whether the inherent jurisdiction could support an order of the kind discussed in Ford Sellar Morris Developments Ltd v Grant Seward Ltd and Luiz Vicente Barros Mattos Junior v Macdaniels Ltd. Those observations were obiter in the cited cases. Arden LJ considered that any simultaneous order should at least set out the antecedent mandatory order.

• High Court, Chancery Division: Blackburne J gave judgment against Mr Gopee on 27 February 2002. Patten J ordered the Registrar of Companies to change the three companies’ names on 29 May 2002. Lightman J made further name-change orders and a costs order on 14 January 2003.
• Court of Appeal (Civil Division): In [2004] EWCA Civ 331, the appeal against Patten J’s order and the appeal against Lightman J’s costs order were allowed. The orders were set aside.