Part 2 Dissolution after the winding-up order
It is important the official receiver provides early notification to the registrar on the making of a winding-up order to avoid the company being struck off and dissolved. Failure to notify the registrar could lead to additional costs being incurred by the official receiver if he/she needs to restore the company to the register.
If the notification of the winding-up order is received after the gazette notice of intention to strike off the company has appeared but before the instruction to gazette the notice of striking off has been issued, the dissolution process will not proceed.
(Amended October 2011)
Where the winding-up order is made in the High Court or the District Registries the Petition and Transfers team will receive the sealed copies of the order before sending them to the local official receiver. The official receiver will be responsible for filing the order with the registrar of companies. To do so the official receiver should enter the CRO number on ISCIS within 48 hours of receiving notice of the winding-up order.
In the County Court the official receiver is responsible for notifying the registrar of the winding-up order.
(Amended October 2011)
It is possible that dissolution proceedings may have started before the winding-up order has been made. The official receiver on receiving notice of the order should check the company’s public file at Companies House to see whether the company has been, or is in the process of being dissolved. If the company has already been dissolved the official receiver should follow the advice in paragraphs 38.31 and 38.32.
(Inserted October 2011)
Where the company is in the process of being dissolved the official receiver should lodge an objection to the dissolution with the registrar of companies pursuant to section 1000 of the Companies Act 2006. The objection letter should be sent by email to email@example.com and marked for the attention of the Dissolution Section. The objection should include a copy of either, the winding-up order, winding-up petition or Secretary of State’s order appointing the official receiver. The objection should include the statement that “the official receiver has only just commenced his/her duties as liquidator and the company will continue to be in “operation” until its winding-up is complete”. The official receiver may include any other relevant matters, for example where the company is still trading. See Annex 5 for a proforma objection.
Where the official receiver has completed his/her enquiries and all the following criteria are met:-
1. there are no assets to be realised,
2. the official receiver is reasonably satisfied that all creditors and employees are aware of the winding-up proceedings,
3. the directors have complied with their obligations with regard to the winding up, and
4. further enquiry, prosecution and/or disqualifications are not proposed,
the case should be processed quickly and closed. A combined notice of report to creditors and release notice RELASS, including the date of dissolution, should be sent to creditors and contributories. When the case is passed to Estate Accounts Services, Birmingham the fact that the company has been dissolved should be drawn to that Section’s attention to prevent notice of the conclusion of the liquidation being sent to Companies House.
On the making of a valid winding-up order against a company the official receiver has a general duty to investigate its affairs [Note 1]. Although there is doubt as to whether the official receiver can investigate the affairs of a company which has been dissolved, it would appear that he/she can act upon this general duty and complete his/her enquiries. Legal advice obtained states that offences survive dissolution and disqualification action can be taken against the directors of a company that has been subject to a valid winding-up order ( see paragraph 38.55). However, the Insolvency Act 1986 precludes the taking of enforcement action, such as the calling of a public examination, after the company has been dissolved [Note 2]. Neither the official receiver nor an insolvency practitioner can act as liquidator of a company which has been dissolved. Where enforcement action or any action which involves some form of asset recovery is to be taken, for example, misfeasance, which requires the company to be on the register before damages can be awarded (see paragraph 31.4B.72), the official receiver should apply for the company to be restored to the register (see Part 10 of this chapter) [Note 3].