Practice Notice 01/08

Time periods

The Company Names Adjudicator Rules 2008 (the Rules) do not specify the periods to be granted for parties to complete actions; the periods are to be specified by the adjudicator. For the sake of clarity and consistency the chief adjudicator has determined the periods which will be the norm. These periods will not fetter the discretion of the adjudicator, who will vary them if it is considered appropriate. The time periods are as follows:

Defence

Under rule 3(3) the primary respondent will be allowed either one or two months to file its response as per rule 3(4).

Evidence

Under rule 4 periods of two months will be set for the filing of evidence. Normally the applicant will file evidence first, the primary respondent will be given an opportunity to file evidence in answer, and the applicant will be permitted to file evidence in reply. However, the adjudicator will consider the statement of grounds and counterstatement and, having regard to the issues in dispute, may decide that the primary respondent should file evidence first, or that the evidence should be filed concurrently by the parties. Similarly, under rule 6(3), the adjudicator may control the evidence by giving directions; for example, as to the issues on which he/she requires evidence; the nature of the evidence, and the manner in which the evidence is to be filed.

The adjudicator may allow the filing of additional evidence; he/she will decide upon the time to be allowed after considering the nature of the evidence which is to be filed.

Written submissions in lieu of a hearing

Under rule 5(5) the parties will be normally given a reasonable period of 6 weeks to file written submissions.

Extensions of time

The adjudicator may extend any time period upon request of any party to the proceedings, as per rules 7(2) and 7(3) (including a time period which has already expired). A request for an extension of a time period must be made on Form CNA 5 (rule 7(4)), accompanied by the fee. The request should be made for the appropriate length of time required to undertake the work that needs to be done.

It is important to note that the adjudicator will already have decided the length of time deemed appropriate for the particular action (e.g. filing evidence). Therefore, the Tribunal expects that requests for extensions to periods of time will be the exception, rather than the norm. A request for an extension of time will not be granted automatically but will be subject to the adjudicator’s discretion. The adjudicator will have regard to the reasons supplied, the length of time requested, the fairness and proportionality of the request, including the complexity of the case, and any prejudice likely to be suffered by either party in allowing or refusing the request.

In requesting any extension, parties should show that the facts merit the request (rule 7(4)). In particular, the request should show clearly what progress has been made thus far, what still needs to be done and the reasons why the party making the request has been unable to complete the particular action required (e.g. gathering of evidence). If the request is made after the time period has expired (a retrospective extension request), it should also state why the request is being made out of time (rule 7(4)).

The adjudicator has discretion to extend (or further extend) any time period, including one which has expired (rule 7(1), whether or not a request has been made to extend a time period.

Copying of correspondence

It is a requirement under rule 4(2)(b) that evidence is copied to other parties in the proceedings. The adjudicator expects that all other correspondence, including requests for extensions to time periods, will also be copied to other parties in the proceedings, except where confidentiality has specifically been requested under rule 6(2)(d). If parties fail to observe this stated practice of copying correspondence, the adjudicator will invoke rule 6(2)(a); it is therefore in the interests of all parties, to reduce both costs and time, that correspondence is copied to the other parties at the same time that it is sent to the Tribunal.

Costs

Under rule 11 the adjudicator may award costs (in Scotland, expenses) to any party in the proceedings. The adjudicator will not normally award the actual costs incurred but will follow a scale of costs. The scale of costs will give an indication to the parties at the outset as to what they are likely to have to pay if they lose.

For those with legal representation the scale of costs will be as follows:

Those without legal representation will normally receive 50% of the above but will receive the full expenses.

Applications without reasonable notice

If a party makes an application without reasonable notice to the registered holder of the company name and the latter does not defend the application, the applicant normally will not receive an award of costs. If a respondent decides not to defend the application and considers that it did not receive adequate notification from the applicant before the filing of the application, the respondent should inform the tribunal on or before the due date for the filing of the defence. Once an order for a change of name is issued by the tribunal, the adjudicator cannot revisit any costs issues.

Off the scale costs

The adjudicator may award costs off the scale, approaching full compensation, to deal proportionately with wide breaches of rules, delaying tactics or other unreasonable behaviour. Any claim for costs approaching full compensation will need to be supported by a bill itemising the actual costs incurred.

The adjudicator may award costs below the minimum indicated by the standard scale. This could happen where, for example, the statement of case/counterstatement and/or evidence is very limited or where a good deal of superfluous and/or irrelevant evidence has been filed.

Conditional fee arrangements

If one of the parties has agreed a conditional fee arrangement (CFA) with their legal representative, any "success fee" will not be taken into account when assessing costs. If the normal scale is applied, there will be no uplift to take account of any CFA. Even when off-scale costs are awarded, the amount will be assessed using the usual principles for assessing off-scale costs, and the amount will not be affected by the existence of a CFA.

Consequently, the requirement in rule 44.15 of the Civil Procedure Rules to provide information about any CFA does not apply to proceedings before the adjudicator. However, parties will need to consider the implications of rule 44.15 in the event of an appeal to the courts.