Winding up of companies by the court and the jurisdiction of the courts
A variety of companies and other organisations may be subject to the compulsory winding up procedure including solvent and insolvent companies formed and registered under the Companies Act 1985, unregistered companies (insolvent partnerships may be wound up as unregistered companies, paragraphs 45.146 to 45.207 below), building societies, associations, friendly societies, overseas companies, foreign companies, Industrial and Provident Societies, companies incorporated by Royal Charter or European Economic Interest Groupings; and companies which have been struck off the register.
(amended March 2012)
The dissolution of a company, in accordance with section 1000 Companies Act 2006, is in two stages - striking off from the register and publication of that notice in the London Gazette. On the publication of notice in the London Gazette the company is dissolved.
The court may wind up a company which has been struck off the register, but steps will need to be taken to restore the name to the register, as dissolution automatically follows striking off [Note 1]. In order to bring winding up proceedings against a company which has been struck off and dissolved it is necessary to have it restored to the register. The official receiver will usually encounter this situation where the company has been dissolved after the presentation of the petition but before the winding-up order. The official receiver should, in the first instance, take no steps to comply with the normal formalities of the liquidation process. The Examiner should follow the procedure outlined in Chapter 38 of this manual and, if the company is still not restored to the register, then the court should be informed that the official receiver intends to take no action in the matter.
(amended March 2012)
If the court makes an order under section 1029 of the Companies Act 2006 restoring a company to the register, the company shall be deemed to have continued in existence as if its name had not been struck off. Further information on dissolved companies can be found in chapter 38.
Except where an Administrator is in office, the fact that there may be other insolvency proceedings in progress is no bar to compulsory liquidation [Note 2].
The High Court has jurisdiction to wind up any company registered in England and Wales. The county court may wind up a company if its issued and paid up share capital does not exceed £120,000 and the company’s registered office is within the jurisdiction of that court [Note 3].
(amended March 2012)
For the purposes of determining court jurisdiction, the registered office of a company is the place which has longest been its registered office during the 6 months immediately preceding the presentation of the petition [Note 4]. A company must inform the Registrar of Companies on incorporation whether its registered office is located in England and Wales, in Wales, in Scotland or in Northern Ireland, as this determines the company’s domicile [Note 5]. However, a company registered in England and Wales, or in Wales, but whose registered office is improperly situated outside these countries, may still be wound up in England and Wales even though it would be necessary to serve the petition outside the jurisdiction [Note 6].
In the case of an unregistered company, for the purposes of winding up its principal place of business is deemed to be the registered office [Note 7].
Application to the court for the winding up of a company shall be by petition. Registrars (in the High Court) and District Judges (in the county court and District Registries) have jurisdiction to hear unopposed petitions. All petitions will therefore be listed for hearing before the Registrar or District Judge in open court. The Registrar or District Judge may determine the matter or refer it for hearing by a judge [Note 8].
Nothing in the Insolvency Act invalidates a proceeding simply because it has been taken in the wrong court. Where winding up or bankruptcy proceedings are commenced in the wrong court, that court may either transfer the proceedings to the correct court, or order that they be continued in the wrong court, or strike the proceedings out [Note 9] [Note 10].
Insolvency proceedings which are pending may be transferred between the High Court and county courts with relevant jurisdiction, and vice versa, by the court of its own motion, or on the application of the official receiver, or on the application of a person appearing to the court to have an interest in the proceedings. A judge of the High Court may also order that proceedings be transferred from a county court to the High Court [Note 11].
If a question arises in any winding up proceeding in a county court, which all parties (or one party and the Judge) believe should be determined by the High Court, then the county court may order that the special case and the proceedings (or part of the proceedings) be transferred for the opinion of the High Court [Note 12].