Company Restoration

A company is a separate and distinct legal entity from its shareholders and directors.

When a company is dissolved it means:

• It is struck off the Register of Companies
• It no longer legally exists
• It is no longer able to trade
• Its bank accounts are frozen
• Any assets of the company become Bona Vacantia (meaning ‘vacant goods’) and will be passed to the Crown
• Any outstanding debt will be written off

There are many reasons to restore a company including:

• The company may wish to continue trading – this is often the case where a company has been struck off by the Registrar of Companies for failing to comply with its statutory obligations such as filing company accounts with Companies House
• To recover assets belonging to the company
• To enable the company to be served with and face new legal proceedings

The route available for company restoration will vary according to whether it was struck off by voluntary application or by the Registrar of Companies.

In general, an application for restoration must be made within six years of the date of dissolution.

There are two routes available:

• Administrative Restoration

• Restoration by Court Order

This is the simpler process of the methods of company restoration. It is the quicker and cheaper method but is only available in limited circumstances. If the criteria are not met, then an application for restoration by court order will be necessary.

This procedure:

• Only applies to a company struck off by the Registrar of Companies whilst it was carrying on business
• Does not apply to a dormant company. The company must have been conducting business at the time of the striking off
• Cannot be used by a company dissolved at its own request

An application can be made by a director, member or shareholder of the company.

An application must be made within six years of the date of dissolution of the company.

• Ascertaining from Companies House the reasons for the strike off e.g. failing to file accounts or annual returns
• Preparation of a formal application to Companies House
• Securing the consent of the Crown (Treasury Solicitor) to the application
• Submitting any outstanding or overdue statutory returns to Companies House
• Payment of fees due for statutory returns as well as any penalties for late filing

Restoration by Court Oder is a more complicated procedure, usually takes longer and can be more expensive than Administrative Restoration.

It applies where a company was dissolved on a voluntary basis by the company directors or shareholders.

The list of persons eligible to make such an application includes:

• The Secretary of State
• Any former director of the company
• Any person having an interest in land in which the company had a superior or derivative interest
• Any person having an interest in land or other property that was:

1. subject to rights vested in the company
2. benefited by obligations owed by the company

• Any person who, but for the company’s dissolution, would have been in a contractual relationship with it
• Any person with a potential legal claim against the company
• Any manager or trustee of a pension fund established for the benefit of employees of the company
• Any former member of the company (or the personal representatives of such a person)
• Any person who was a creditor of the company at the time of its striking off or dissolution
• Any former liquidator of the company

• Within six years of the date of dissolution of the company
• For the purposes of bringing a claim for damages for personal injury, at any time

In outline:                                      

• A claim form and supporting witness statement are lodged with the court
• The court will issue and return the claim form
• The claim form and signed witness statement will be served on the Registrar of Companies and the Treasury Solicitor
• The Treasury Solicitor will reply setting out the requirements of the Registrar of Companies, which may include the submission of documents to Companies House and the provision of Undertakings
• A Bona Vacantia letter will be obtained from the Treasury Solicitor confirming that the Crown has no interest in the property of the company
• The Consent Order and any Undertakings will be agreed
• The sealed Consent Order will be issued by the court
• the sealed Court Order is served on the Registrar of Companies

When the correct procedure is followed, the application usually proceeds relatively smoothly. However, certain complicating factors can arise such as:

• The form of the undertaking will need to be agreed with the Treasury Solicitor and provided to the Court. The nature of the undertaking will vary dependent upon the reason for the application to restore the company

For example, if the company is being restored to commence trading again, the form of undertaking may include the requirement to file accounts and annual returns.

In addition, there may be a requirement to provide an undertaking to dissolve the company once the purpose of restoration has been fulfilled (e.g. the recovery of frozen assets).

• Either the Registrar of Companies or HMRC do not consent to the restoration being sought