The memoradum of association is not now part of
a company’s constitution. It is merely an information
carrying document for use on incorporation.
The company’s name
A company is only a legal person but, like a human
being, it must have a name. The CA 2006 contains a sys-
tem for controlling the names and business names of
companies. The main rules are set out below.
On registration
The following rules apply.
1 The final words of the name – generally. A private
company, whether limited by shares or guarantee, must
end its name with the word ‘limited’ (s 59). A public com-
pany must end its name with the words ‘public limited
company’ (s 58). The short forms – ‘Ltd’ and ‘plc’ – are
allowed by ss 58 and 59. These words, or their short forms,
must not appear elsewhere in the name (ss 58 and 59).
One of the new company names adjudicators can direct
an offending company to change its name to comply.
2 The final words of the name – an exemption.
Sections 60 – 64 allow private companies limited by guar-
antee to apply for exemption in the sense of leaving off
the word ‘limited’ from the name. The section gives auto-
matic exemption if the conditions are satisfied. The
company simply sends to the Registrar of Companies
what is called a statutory declaration, which is a state-
ment made before a commissioner for oaths that certain
facts are true. The declaration is signed by a director and
the secretary of the company. The facts that it declares to
be true are the ones which the above sections require for
exemption, that is that:
■the objects of the company are to promote commerce,
art, science, education, religion, charity, or any pro-
fession, and anything that would help that;
■the company’s profits or income will be applied to the
promotion of those objects;
■the payment of dividends is prohibited;
■all surplus assets on a winding-up will be transferred
to another body with similar or charitable objects.
If the company at any time does not satisfy the above
requirements, the Registrar may direct it to include
‘limited’ in its name again.
The exemption is not fully effective because, although
the company need not use the word limited in its name,
s 82 says that, despite the exemption, all business letters
and order forms of the company must include a statement
that it is limited. However, the company at least avoids
the need to use the word ‘limited’ as part of its name.
The word ‘limited’ generally connotes a commercial profit-
orientated organisation which a s 60 company is not.
The CA 2006 allows, in Schs 4 and 5, in place of the
statutory declaration, an electronically communicated
statement made on formation of the company by a solicitor
engaged in the formation, or by a person named as a
director or secretary or, in the case of a company chang-
ing its name to omit the word ‘limited’, by a director or
secretary of the company.3 Same, similar, and offensive names. Under s 53 a
name will not be accepted by the Registrar if it is the
same as one already on the Index of Names which he is
required to keep by s 1099. Similar names will be regis-
tered. So if there is a company called Widgets Ltd on the
Index the Registrar would register a new company called
Widgets (Holdings) Ltd.
However, a company may be required by the
Secretary of State to change its name within 12 months
of registration if it is ‘too like’ that of a company already
on the Index (s 77). It is up to other companies to ascer-
tain this, e.g. by purchasing daily extracts from the
Register of the names of companies which have gone on
it. There are firms which will supply these.
If a period of 12 months has passed, the Secretary of
State can do nothing under s 77 but Widgets Ltd could
bring an action at common law for passing off. For
example, in Société Anonyme des Anciens Etablissements
Panhard et Lavassorv Levassor Motor Co Ltd(1901)
(which we can call the Panhard case) the claimant was a
French company whose cars were sold in England. The
French company wished to set up an English company
to act as an agent in England to improve the sales of its
cars here.
To try to stop this, the defendant English company
was registered, the hope being that the French company
could not then register an English company in its name
in England because a company with that name would
already be on the Register.
The court said that the name of the English company
must be taken off the Register. The members of the
English company were told that they must change the
name of their company or wind it up.
Finally, a name will not be registered if it is in the
opinion of the Secretary of State offensive or if itsPart 2Business organisations