Restoration of Companies

Restoration of Companies 

March 2010

Please note that restoration should only be dealt with in conjunction with an examiner/AOR

Introduction

1. Why is restoration needed?

(Amended June 2010)

Once a company has been dissolved or struck off the register action is needed to restore it either by an application for administrative restoration (available only to the former directors or members) made to the Registrar of Companies or by an application to court. For information regarding administrative restoration see Technical Manual Chapter 38 Part 8; as it is not available to the official receiver administrative restoration will not be considered further in this part. A possible alternative to restoration involves an application to the Treasury Solicitor for a bona vacantia grant. For further information see Technical Manual Chapter 38 part 7

2. When would an application for restoration be made?

Generally a court order is needed to restore a company to the register. There are various reasons for restoring a company, for example:

  • to enable the company to be wound up; or
  • when enforcement action is needed in connection with prosecution proceedings or misfeasance proceedings; or
  • to enable assets to be claimed/dealt with; or
  • to enable an action to be brought for damages regarding the occurrence of a fatal accident or the suffering of personal injuries.

3. What legislation applies?

An application to restore a company's name to the register is made under the provisions of section 1029 CA 2006 whether the company has been removed from the register and dissolved under the provisions of the Insolvency Act 1986 or struck from the register under the provisions of the Companies Act 1985 or CA 2006 whether or not it has been  dissolved as a consequence of that striking off.

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, the former liquidator would 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.

4. Who can apply?

(Amended December 2010)

There are many possible applicants under section 1029 CA 2006 see Technical Manual paragraph 38.80. Generally the official receiver will apply under this section in his/her capacity as former liquidator. A liquidator whose appointment is invalid as a result of the dissolution of the company may apply for the company’s restoration as “any other person appearing to the court to have an interest in the matter". In certain circumstances where the liquidator’s appointment is invalid the official receiver will make the application as an interested party. In this instance the Claim Form (CPR Part 8) should be in the name of the official receiver only and not as official receiver and former liquidator. The Secretary of State may also apply if he/she seeks the restoration in order to perform his/her statutory duties with regard to the regulation of companies.

5. How long after dissolution may an application be made?

(Amended June 2010)

An application under this section is generally available for up to six years from the date of dissolution or striking off. The order may be made outside this period as long as the application is set down within it. However, in certain circumstances, a company dissolved prior to 1 October 2007 cannot be restored to the register. For further details see Technical Manual Chapter 38 Part 9. Where restoration is sought to enable an action for damages for personal injuries or as a result of a fatal accident to be brought, the application may be made at any time, 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. 

6. What effect does the order have?

The general effect of the order is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register.

7. In which court is the application made?

An application under section 1029 CA 2006 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. 

8. How is the application made?

(Amended November 2014)

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 £160 [Fee No. 3.5 under the Civil Proceedings Fees Order 2008].

9. Official receiver’s report

(Amended December 2010)

The application (using Claim Form (CPR Part 8) RSTCL on ISCIS ‘Docs’ tab) must be supported by a report setting out the background to the application. The matters to be covered in the report are as follows : 

  • Details of the winding-up order and the official receiver’s status  e.g. former liquidator, interested party.
  • Details of the company including :
       - address of registered office
       - date of incorporation and registered number
       - the names of the officers of the company
  • A full explanation of the circumstances of striking off/dissolution
  • The reasons why an order is being sought

Templates are available on ISCIS ‘Docs’ tab, the report is form RSTREP.

10. Who else requires notice of the application?

(Amended December 2010)

The Claim Form (CPR Part 8), draft order (RSTORD) 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.

11. Service of notice of the application

(Amended March 2012)

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 of Companies 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.  A cheque for this amount should be sent to the Treasury Solicitors made payable to “The Registrar of Companies”.

d) Notice of the application should also be served on any other interested party, e.g. an insolvency practitioner in office.

A ‘Certificate of Service’ (Court Service Form N215) needs to be completed in its entirety for each party served.  Partially completed versions of this document are available  in the ‘forms to use’ section (RSTCERT).  These certificates are required later in the process as supporting evidence (see paragraph 12).

12. What other supporting evidence is required?

(Amended April 2011)

Once the claim form for the application and copy of the official receiver’s report has been served on all interested parties, 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 Certificates of Service (form RSTCERT) completed 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.

13. 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.

14. 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 11). 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.

15. 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 a new name and/or its registration number and date of incorporation. Where a new name is not used an undertaking to re-name the company within 14 days following the making of the restoration order will need to be given in the application. Further, in either event the new name will need to be registered and a new certificate of incorporation issued. It should be noted that the failure to rename a company following restoration is a criminal offence.

16. 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 652 – Registrar may strike defunct company off register

Companies Act 2006

Section 1000 - Power to strike off company not carrying on business or in operation

Section 1029 - Application to court for restoration to the register

Section 1030 - When application to the court may be made

Section 1031 - Decision on application for restoration by the court

Section 1032 - Effect of court order for restoration to the register

Section 1033 - Company’s name on restoration

Insolvency Act 1986

Section 202 – Early dissolution

Section 203 - Consequence of notice under s202

Section 205 – Dissolution (other than early dissolution)

Technical Manual

Chapter 38

Part 8 – Administrative Restoration to the register

Part  9 - Restoration to the register, the legislation

Web Sites

www.tsol.gov.uk

www.bonavacantia.gov.uk

Forms to be used

Claim Form (CPR Part 8)

RSTREP - Report to Court

RSTLET1 - Letter to accompany application

RSTORD – Draft court order

RSTLET2 - Letter serving application

RSTCERT - Certificate of Service – Registrar of Companies

RSTCERT - Certificate of Service – Treasury Solicitors

RSTCERT - Certificate of Service – Duchy of Lancaster / Duke of Cornwall

 

Restoration of Companies Flowchart 

 

Procedure

(Amended April 2011) 

1. Ascertain under what section of the CA1985 or CA 2006 the company was dissolved. The official receiver will be able to apply as former liquidator (or as a person with an interest in the matter if his/her appointment is invalid as a result of the dissolution, see introduction 4) for the company to be restored to the register (Section 1029 CA 2006).  

2. Obtain written confirmation from Technical Section that application should be made.

(Amended December 2010) 

3. Complete claim form Claim Form (CPR Part 8) under Section 1029 CA 2006. The Claim Form (CPR Part 8) is available through ISCIS ‘Docs’ tab as form RSTCL . The form can then be printed and sent to court keeping a copy for the file. Advice on completing Claim Form (CPR Part 8) can be obtained here. 

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 Services (EAS ), the cheque should be made payable to HM Courts & Tribunals Service 

6. The claim form, official receiver’s report (RSTREP) and application (RSTCLalong with the appropriate 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.  A Certificate of Service (Court Form N215) will need to be completed for each of the parties served.  Partially completed versions of this form are available through ISCIS ‘Docs’ tab as form RSTCERT. 

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 EAS 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 and the Certificates of Service referred to at point 7, form the supporting evidence.

12. The supporting evidence (See paragraph 11) be filed at court pending the hearing, no later than 2 clear working days before the date of the hearing.  

13. On the day before the hearing pass papers to person who will be attending together with draft order (RSTORD). 

14. 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 Introduction, paragraph 11). A photocopy will not suffice.  A Certificate of Service (Court Form N215) will need to be completed for each of the parties served.  Partially completed versions of this form are available through ISCIS ‘Docs’ tab as form RSTCERT.  Ask for acknowledgement of receipt.   

15. 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. 

16. File case papers.