November 1995

58.1 Types of unregistered companies

(amended August 2012)

As the name implies, an unregistered company is not registered with the Registrar of Companies with the exception of an European Economic Interest Grouping which should be registered with the Registrar of Companies (see (g) below and Part 3 of this chapter). If the entity may be wound up as an unregistered company, the procedure in Part V of the Insolvency Act 1986 should be applied (see Part 4 of this chapter). An unregistered company, for the purposes of winding up, is likely to be one of the following:-

1. an insolvent partnership - Full guidance on dealing with partnerships is given in chapter 53.
2. an association - Generally the Court has no jurisdiction to wind up an unincorporated member’s club which is essentially a social club (unless it is a working man’s club see Re Victoria Society Knottingly [1913] 1 Ch 167) as an unregistered company. However, the High Court (but not a County Court) may exercise its equitable jurisdiction to wind up a members’ club (Re: Lead Company’s Workmen’s Fund Society [1904] 2 Ch 196). However, it will not, as a general rule, interfere where the rules provide for a dissolution nor unless it appears that a majority of the members desire to dissolve the club, or there are special circumstances which make it impossible to carry it on (see: Blake v Smither (1906) 22 TLR 698).
3. a friendly society - (Re: Alfreton District Friendly & Provident Society [1863] 7LT 817) but only those societies which are not incorporated friendly societies (see paragraph 58.3 for details of such a society). Guidance on the winding up of a friendly society is given in part 2 of this chapter.
4. a company incorporated by Royal charter or by special Act of Parliament - There is no requirement that such a company be registered under the Companies Act 2006 since it does not fall within the definition of a company under that Act.
5. an oversea company - is one which is incorporated outside Great Britain but which has an established place of business in Great Britain. Throughout the period that there is an established place of business in Great Britain certain details should be registered with the Registrar of Companies. Where an oversea company ceases to carry on business in Great Britain, it may be wound up as an unregistered company notwithstanding that it has been dissolved or otherwise ceased to exist as a company in the country in which it was incorporated.
6. a foreign company - is one which has not established a place of business in Great Britain and so is not classed as an oversea company. (For the definition of an oversea company see (e) above). A foreign company may be wound up as an unregistered company if it has sufficient connection with the United Kingdom (and the Court is satisfied that there is no other, more appropriate, jurisdiction for the winding up to take place) and there will be a reasonable benefit to the creditors from the winding up in the jurisdiction. There is no requirement that the company must have assets in the jurisdiction (Re: Okeanos Maritime Corporation [1987] 3 BCC 160). A foreign company can be wound up even though it has ceased trading and had no assets in this country merely because the employees in the jurisdiction might obtain payments from the Redundancy Fund (Re: Eloc Electro Optiek and Communicatie BV [1981] 2 A11 ER 1111).
7. a European Economic Interest Grouping - This is referred to throughout this chapter as an ‘EEIG’. (Details of the nature of an EEIG and its winding up are provided in part 3 of this chapter).
8. Industrial and provident society - Under Section 55 of the Industrial and Provident Societies Act 1965 an industrial and provident society, which is registered under that Act, may be wound up as if it were a company under the Companies Act 2006 ie under Part IV of the Insolvency Act 1986. Further details of the statutory provisions relating to industrial and provident societies are given in chapter 59 - Unusual assets and businesses.

Notes: [s220][s420(1)][1 and 1171 CA 2006][2(1) and (2), 18 (4), 540 (1) and (4), 548, 738, 1044, 1060 (3), 1121 (2) 1156 (1) to (3), 1165 (7), 1167, 1170 and 1173 (1) CA 2006][s 1046 and 1049 CA 2006 and The Overseas Companies Regulations 2009][s225]

58.2 Timing of registration with Registrar of Companies

In order to be an unregistered company the company should not have been registered with the Registrar of Companies at the commencement of the winding up. any registration after the date of the petition will be a nullity (Re: Hercules Insurance Co [1871] LR 11 Eq 321).

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