February 2007
Please note that these matters are of a highly technical nature and should only be dealt with in conjunction with an examiner/AOR
Introduction
Once a company has been dissolved, a court order is needed to revive it by declaring the dissolution void or restoring it to the Register. There are various reasons for restoring a company, for example:
An application for a declaration that the dissolution be declared void is made under the provisions of section 651(1) of the Companies Act 1985 (CA1985).
An application to restore a company's name to the register is made under the provisions of section 653(2) CA 1985.
The onus as to who should apply for restoration will depend on the circumstances of the company becoming in this position and the reason for which the application is sought. For example, where such an application is necessary to enable assets to be claimed/pursued, one or more of the creditors might apply. If restoration is necessary to enable further investigation of the company’s affairs to be carried out with a view to prosecution, the official receiver should apply.
In order to restore a company to the Register it will be necessary to know under what section of the CA1985 the company was dissolved and struck off the Register
i Application under Section 651 CA1985
Under the provisions of this section restoration is available following the conclusion of the liquidation proceedings.
ii Who can apply?
The applicant under section 651 CA 1985 may be either the liquidator or any person appearing to the court to be interested. The official receiver will apply under this section in his/her capacity as liquidator. A liquidator whose appointment is invalid as a result of the dissolution of the company may apply for the company’s restoration as "an interested party". The Secretary of State may also apply as "an interested party" if he/she seeks the restoration in order to perform his/her statutory duties with regard to the regulation of companies.
An application under this section is available for up to two years from the date of dissolution. The order may be made outside this period as long as the action is started within it. The period has been extended to "at any time" where restoration is sought to enable an action for damages for personal injuries or as a result of a fatal accident to be brought, as prior to being able to pursue the company’s insurers it is first necessary to establish a claim against the insured and an action may not be brought against a dissolved company.
iii What effect does the order have?
The effect of the order is that the dissolution is declared to have been void. It may also affect other actions started after the date of dissolution, details of which can be found in Technical Manual Chapter 38 paragraph 38.37
iv Application under Section 653 CA1985
An order under section 653 CA 1985 only, specifically provides for the company to be restored to the Register, thus reversing the striking off by the Registrar. Restoration is only available under this section where a company has been struck off the Register under section 652 or 652A CA 1985.
v Who can apply?
Applicant where company struck off under Section 652 could be :
However, since an application is likely to be prompted by the discovery of assets, the creditors should be encouraged to make the application as they are the ones who will benefit.
Applicant where company struck off under Section 652A could be :
Applications under section 653 CA 1985 may be brought for up to 20 years after dissolution. There is no facility for the period to be extended to permit a claim for personal injuries to be brought.
vi What effect does the order have?
The company is "deemed to have continued in existence as if its name had not been struck off". Therefore any acts carried out in the period between dissolution and restoration are valid. For further details see Technical Manual Chapter 38 paragraph 38.42
vii In which Court is the application made?
Applications under both section 651 and 653 CA 1985 should be brought in the court in which the winding-up order was made or a court which would have had jurisdiction to wind up the company.
Where an order is made in the High Court and the case is subsequently transferred to the local county court, the application may be made in the county court as long as that court had the power to wind up the company i.e. the registered office of the company was in the court's area of jurisdiction and the amount of the share capital paid up or credited as paid up did not exceed £120,000. Where this was not the case the application for restoration should be made in the High Court.
viii How is the application made?
Confirmation should be obtained in writing from Technical Section that a debit balance might be incurred to meet the costs of restoration. The request, by minute or e-mail, should give a brief description of the circumstances in which the company was dissolved and the reason restoration to the Register is required. If the official receiver is liquidator of the company the costs will be charged to the estate as they arise and Technical Section will authorise a fruitless payment to credit the estate account, once restoration has occurred, where dissolution occurred as a result of an error on the part of the official receiver.
If an insolvency practitioner is in office the official receiver will only make an application for restoration if dissolution occurred as a result of an error on the part of the official receiver. In such cases the official receiver will be unable to meet the costs from the estate account and individual payments from the fruitless payment account will be authorized by Technical Section.
In confirming that application for restoration should be made Technical Section will need to be satisfied that restoration is necessary. The information on the circumstances of the dissolution and need for restoration enables Technical Section to distinguish whether the costs should be met as an expense of the estate or as a fruitless payment.
The application is made by completing a Claim Form under Part 8 of the Civil Procedure Rules 1998 (CPR-Part 8)). This is the standard form that starts the proceedings and should be sent to the relevant Court together with the official receiver’s report. The Court fee for issuing the Claim Form is currently £130.
ix Official receiver’s report
The application must be supported by a report setting out the background to the application. The matters to be covered are as follows :
A formal request for an order either that the dissolution is void (section 651 CA 1985) or that the company should restored to the Register (section 653 CA 1985) should also be attached, using claim form (CPR-Part 8)(Form RSTCL).
x Who else requires notice of the application?
The claim form (RSTCL) and draft order (RSTAPP) and official receiver’s report (RSTREP) should be sent to Court under the cover of form RSTLET1.The Court should be sent at least 4 copies of the claim form(plus any further copies which are required to be served on interested parties).The Court should be asked to return at least 3 sealed copies (plus any further copies which are required to be served on interested parties). The date of the Court hearing should ideally be 21/28 days in advance, in order to obtain the relevant evidence from the Treasury Solicitor(BV) and the Registrar of Companies. In addition it may be necessary to file certain documents with the Registrar of Companies (see below). However, if the matter is urgent, the official receiver should endeavour to obtain evidence, etc in the shortest possible time. Please note that the Treasury Solicitor (BV) not only acts for the Crown in these matters, but also acts for the Registrar of Companies. When correspondence is received from the Treasury Solicitor, care should be taken to identify on whose behalf the letter has been received.
When the matter is listed for court hearing, notice should be served immediately by DX or recorded delivery, using a covering letter (RSTLET2) enclosing a copy of the claim form and official receiver’s report on:
a) The Treasury Solicitor (BV)
One Kemble St
London
WC2B 4TS
DX : 123240 Kingsway
The term "Bona Vacantia" which is often abbreviated to (BV), literally means vacant goods and is the legal name for ownerless property, which by law passes to The Crown. The Treasury Solicitor (BV) is The Crown's Nominee for the collection of the assets of dissolved companies in England and Wales.
Where the registered office of the company is in Lancashire or Cornwall notice should be served on the solicitor to the Duchy of Lancaster/Duke of Cornwall at :
b) Messrs Farrer & Co
66 Lincoln’s Inn Fields
London
WC2A 3LH
DX : 32 Chancery Lane
Notice must also be served on the Registrar of Companies who should be served with a copy of the claim form together with a copy of the official receiver's report in support, using covering letter RSTLET2, whenever the official receiver applies for a company’s restoration. Any other necessary papers should also be filed with the Registrar of Companies, for example, where the company has been struck off the Register as a result of failure to file of copy of the winding-up order it will be necessary to provide the Registrar with a copy of the winding-up order. Documents should be sent to the Registrar at least 5 working days before the date of the hearing, and the Registrar must be given 10 days notice of the hearing in order to deal with the matter and instruct the Treasury Solicitor. Please note however, that where the liquidator seeks restoration, it is not the practice of the Registrar of Companies to require returns to be filed up to date.
c) The Registrar of Companies
Restoration Section
Companies House
Crown Way
Cardiff
CF14 3UZ
DX : 33050 Cardiff
The costs of the Treasury Solicitor, who represents the Registrar of Companies in relation to the application will be required to be paid, currently £300 per application
d) Notice of the application should also be served on any other interested party, e.g. an insolvency practitioner in office.
xi What other supporting evidence is required?
Once the claim form for the application and copy of the official receiver’s report has been served on the Treasury Solicitor(BV), the Treasury Solicitor(BV) will write to the official receiver to confirm that he/she has no objection to the granting of the relief sought in the application. The Treasury Solicitor, acting on behalf of the Registrar of Companies, will also write to the official receiver, to confirm that he/she does not intend to oppose the application. These letters form the supporting evidence and should be exhibited with the Certificate of Service (form RSTCERT) to be sworn by the official receiver and filed at court pending the hearing, no later than 2 clear working days before the date of the hearing. Any correspondence received raising objections should be dealt with immediately.
xii Who can attend the hearing?
The official receiver should attend on the application in person or be suitably represented. The Treasury Solicitor (BV) or relevant Duchy Solicitor and The Treasury Solicitor acting on behalf of the Registrar of Companies will tend not to be present or represented and where they consent to the application, their attendance may be discouraged in order to minimise costs. The solicitors will already have been served with a copy of the application and supporting report so they will be fully aware of the grounds of the application and will therefore have full information to enable them to decide whether to consent or object to the application.
xiii What happens when the order is made?
Once the order is made an office copy of the order, with an original Court seal, should be served on the Treasury Solicitor, the Registrar of Companies and any other interested parties (see paragraph x). A photocopy will not suffice. The company is then regarded as having continued in existence as if it had not been struck off and dissolved.
xiv Restoration of company where its name has been re-used
Where a company’s name has been reused, the application to Court regarding restoration of the company should refer to it by that name, its registration number and date of incorporation. The documentation could include an undertaking by the members to change the company’s name immediately upon restoration to avoid confusion between it and the new company and possible damage to the new company as a result of adverse publicity.
xv What happens to funds due to a dissolved company?
Where a dissolved company is a creditor in a bankruptcy or liquidation The Treasury Solicitor/Duchy Solicitor stands in the place of the company. Meeting papers etc should be sent to the relevant Solicitor to enable a claim to be lodged in the proceedings.
Where can I find out more?
Companies Act 1985
Section 651-655
Insolvency Act 1986
Section 210-205
Technical Manual
Chapter 38 – part 8 – Revival.
Web Sites
Forms to be used
|
RSTCL - Claim form RSTREP - Report to Court RSTLET1 - Letter to accompany application RSTAPP - Application to Court, Section 651, Section 653 RTSLET2 - Letter serving application RSTCERT - Certificate of Service |
Click HERE to view the flowchart for Restoration of Companies
Procedure
1. Ascertain under what section of the CA1985 the company was dissolved and confirm that the official receiver is able to apply as liquidator for the company to be restored to the Register.
2. Obtain written confirmation from Technical Section that application should be made.
3. Complete claim form (RSTCL) under either Section 651 or 653, according to which section the application is being made under.
4. Complete official receiver’s report to Court (RSTREP). Obtain signature from official receiver/assistant official receiver.
5. Request cheque for Court fee from Estate Accounts Directorate (EAD).
6. The claim form, official receiver’s report and application (RSTAPP) fee should be sent to Court using form RSTLET1 and the return of at least three sealed copies requested.
7. Once the matter is listed for hearing, immediately serve copies of the order, official receiver’s report and claim form, on the Treasury Solicitor (BV)(form RSTLET2), Registrar of Companies(form RSTLET2) and any other interested party. At least 10 days notice will need to be given.
8. Confirmation will be received from the Treasury Solicitor (BV) that he/she has no objection to the granting of the relief sought and a request made for the fee.
9. Confirmation will be received from the Registrar Of Companies that he/she would not wish to oppose the application and would not propose to be represented at the hearing, together with a copy of the Order, endorsed with the Registrar’s consent.
10. Request from EAD the fee outstanding to the Registrar of Companies, and despatch before the Order is made.
11. Both letters of confirmation referred to in point 8 and 9, form the supporting evidence.
12. Complete Certificate of Service (form RSTCERT).
13. Pass Certificate of Service and supporting evidence to official receiver/assistant official receiver to be sworn and filed at court pending the hearing, no later than 2 clear working days before the date of the hearing.
14. On the day before the hearing pass papers to person who will be attending together with draft order (RSTAPP).
15. Once order made serve a copy of the order, with an original Court seal, on the Treasury Solicitor (BV), the Registrar of Companies and any other interested parties (see paragraph x). A photocopy will not suffice. Ask for acknowledgement of receipt.
16. In an application under section 653 CA 1985, the Registrar of Companies will issue confirmation that the company has been restored to the Register and the restoration will be gazetted in due course.
17. File case papers.