Botanica Agriculture and Extraction Limited v Botanica Limited

The appeal concerned an objection under section 69 of the Companies Act 2006 to the name "Botanica Limited". The Tribunal had dismissed the objection on the basis that the appellant had not established goodwill or reputation in the relevant name by the date of the respondent's incorporation. The High Court concluded the Tribunal applied the wrong approach to the relevant date for section 69(1)(a) and failed to consider section 69(4) separately, including the respondent's evidential burden to establish a defence. The court therefore allowed the appeal and remitted the application to the Company Names Tribunal for re-determination so that the issues under section 69(1)(a) and section 69(4) are considered separately and the parties may put forward evidence accordingly.

This was an appeal from a Company Names Tribunal decision published 9 November 2021, in which the Tribunal dismissed an objection by Botanica Agriculture and Extraction Ltd to the registration of the name Botanica Limited under section 69 of the Companies Act 2006. The appellant sought the respondent's name to be changed or the company dissolved and also sought aggravated damages (the Tribunal had no power to award damages).

The Tribunal found that the appellant had not shown goodwill in the name relied upon prior to the respondent's incorporation and so dismissed the objection. The appellant appealed to the High Court. The appeal hearing was adjourned by Sir Anthony Mann on 12 May 2022 to permit proper service and to deal with an application to adduce new evidence; the appeal was heard by Mr Justice Leech on 26 October 2022.

The court identified the key legal issues as:

• the correct relevant date for establishing goodwill under section 69(1)(a) (date of incorporation versus date of the application),
• the burden and sequencing between the appellant proving the objection under section 69(1)(a) and the respondent proving a statutory defence under section 69(4), and
• whether the Tribunal had erred in law by not considering those matters separately and by applying an incorrect date.

The court examined the Tribunal's reasoning, noting reliance upon established definitions of goodwill and the Tribunal's expectation of outward-facing use as evidence. The High Court concluded the Tribunal had erred in law by effectively considering the matters together and by using the respondent's incorporation date rather than the date of the application when assessing the appellant's goodwill. The Tribunal also did not consider whether the respondent had adduced evidence to satisfy the defences in section 69(4). Given these legal errors and the factual matters that remained unresolved, the court did not decide the factual issues itself but remitted the application to the Tribunal for re-determination. The court also noted ancillary issues raised by the appellant (allegations of improper purpose and a without prejudice offer to sell the company) but declined to allow the appeal on those grounds alone, leaving them open for the Tribunal to consider on rehearing if relevant.

Appeal allowed. The Tribunal erred in law by failing to consider section 69(1)(a) and section 69(4) of the Companies Act 2006 separately and by applying the wrong relevant date for assessing goodwill; the matter is remitted to the Company Names Tribunal for re-determination with directions to address those issues and admit relevant evidence.

Appeal from a decision of the Company Names Tribunal published 9 November 2021. The appeal was adjourned by Sir Anthony Mann on 12 May 2022 to permit proper service and to deal with an application to adduce further evidence. The appeal was heard in the High Court (Chancery Division) by Mr Justice Leech and determined on 26 October 2022 ([2022] EWHC 2957 (Ch)).