Restoring a Dissolved Company

The Companies Act 2006 created two protocols to restore a dissolved company to the Register, one involving a court order and the other which is called an administrative restoration which is handled by the Registrar of Companies without need for an application to the Court. Administrative restoration is only possible in certain defined and limited circumstances.

We handle both administrative restoration and also restoration via court claim where an administrative restoration is not possible or available.

We will initially  take instructions and review and understand the background and evidence including understanding why dissolution took place, and what the best approach is now to resolve the issue. With our review and advice in hand next steps, including the most appropriate process, can then be considered.

Wherever possible we will try to approach restoration via the administrative process. That can be cheaper and quicker, but can also come unstuck on occasion.

Where an administrative restoration is not available, we will advise and assist in relation to issuing a claim.

Part 8 of the Civil Procedure Rules requires the completion of a Claim Form with the detail of the claim called Particulars of Claim both of which are filed at the relevant Court plus payment of a fee. These papers are then served on the Respondents.

With any company restoration it is necessary to approach both the registrar of companies, essentially the head of companies house, and the treasury solicitor, who has responsibility for these matters on behalf of the crown. We seek to establish their requirements to agree to an Order that the company be restored. We then work with directors and shareholders to put the necessary documents and processes (requirements) in place to facilitate an agreement. Typical examples of requirements can include ensuring any missed sets of accounts and filings are brought up to date, and that any annual fees that would have been due and payable had the company not been dissolved, are paid. We might work with an accountant to also assist in getting these aspects in hand.

The court will then set a hearing date usually around three months after the claim has been issued in order to allow the company officer time to comply with the Registrar’s requirements.

As above, our preference in these circumstances is to try to reach an agreement with both the Treasury Solicitor and the registrar of companies. We can then often agree a consent order and avoid the need for (cost and time of) the hearing itself. We therefore use the three months to try to achieve this.

The Registrar of Companies via the Treasury Solicitor will set out their requirements for consent to an Order and undertakings are necessary from the Claimant to the court in line with these requirements.

Bona Vacantia is Latin for ‘ownerless goods’ or ‘empty good’ and refers in this context to any assets held by the company when it was dissolved; at this point the assets are technically ownerless as the legal body of the company has ceased to exist and so they pass to the Crown. It is this outcome that a restoration attempts to avoid.

Bona Vacantia property is dealt with on behalf of the Crown by the Bona Vacantia Division or BVD of the Government Legal Department. If a company is restored, then it can recover Bona Vacantia assets provided they have not been disclaimed by the Crown; this has to be done within six years of the company’s dissolution.

In any circumstance when a Claimant is applying for restoration of a dissolved company, the law says you must obtain the Crown representative’s written consent – this is called a Bona Vacantia waiver letter.  At this point in the restoration process, a Bona Vacantia waiver letter must be obtained and added to the evidence for the Court.

Where instructed we immediately seek to obtain this.

Provided all the steps have been satisfactorily completed, the company restoration is dealt with via a Consent Order at a listed hearing.

The sealed order is served on the Registrar of Companies who restores the dissolved company to the Register with the effective date being the date that the Order is delivered to the Registrar.

The other type of company restoration is a different process whereby a company is restored to the Register without an application to the Court. A company can only use this method of restoration if it was struck off by the Registrar under sections 1000 or 1001 of the 2006 Companies Act or under section 652 of the 1985 Companies Act.