Lidl Logistics Ltd & Anor v Lidl Stiftung & Co KG

Companies Act 2006, section 69 operates prospectively. It may regulate the future use of a company name registered before the section came into force, without imposing retrospective liability for past conduct. The presumption against retrospectivity therefore does not apply. A defence under section 69(4)(e) requires the company-name respondent to prove that the applicant’s interests are not adversely affected to any significant extent. Potential future use, including a possible sale of the company, may be relevant even where the company is dormant and has never traded. An appellate court reviewing a specialist tribunal should show real reluctance to interfere with a multifactorial evaluation absent a material error of principle.

Lidl Stiftung & Co KG applied to the Company Names Tribunal under section 69 of the Companies Act 2006, objecting to the registered name of Lidl Logistics Ltd. The company had been incorporated before section 69 came into force and had never traded. The Tribunal rejected an application to strike out the objection on retrospectivity grounds and later ordered the appellants to change the company name.

The appellants appealed both decisions. They argued that section 69 could not apply to a pre-existing company and that they had established the defence in section 69(4)(e), because the company was dormant and was not intended to trade. The central issues were whether section 69 operated retrospectively and whether the no-significant-adverse-effect defence had been made out.

1. Appeal dismissed. The Tribunal’s interim and final decisions were upheld.
2. Section 69 of the Companies Act 2006 does not impose liability for past events. It controls the future use of a registered company name. It therefore applies to companies registered before its commencement without operating retrospectively. Section 73 confirms that an order concerns a future change of name.
3. The presumption against retrospectivity was inapplicable. There was no ambiguity requiring a presumption against interference with vested rights. In any event, registration of the name did not create the claimed immunity from later legislation, and section 69 contained safeguards through its goodwill, misleading-connection and defence provisions.
4. Section 1297 was procedural. It preserved continuity where the Act re-enacted repealed legislation and did not prevent later legislation from governing company names. Section 69 was new and had no corresponding provision in the Companies Act 1985.
5. The appeal was by way of review, not rehearing. Applying the principles summarised in AXA Wholesale Trading Ltd v AXA and Axogen Corporation v Aviv Scientific Ltd, the court showed real reluctance to interfere with the Tribunal’s multifactorial assessment, while taking account of the absence of oral evidence and cross-examination.
6. Under section 69(4)(e), the burden lay on the appellants to establish that the respondent’s interests were not adversely affected to any significant extent. Dormancy and an asserted present intention not to trade did not exclude potential future use. The Tribunal was entitled to consider the possibility of a change of intention or sale to a third party and to draw an adverse inference from the absence of positive evidence about future intentions.
7. The Tribunal’s approach was consistent with Zurich Insurance Co v Zurich Investments Ltd and the approach approved on appeal in AXA Wholesale Trading Ltd v AXA. The assessment date issue was immaterial because the later assessment necessarily included the earlier circumstances. Unpleaded consent, acquiescence and estoppel arguments were too late and unsupported by admissible evidence.

• High Court (Chancery Division): The appeal from the Company Names Tribunal’s interim decision of 18 January 2022 and final decision of 11 November 2022 was dismissed. The Tribunal’s order requiring the appellants to change the company name was upheld.